Terrorism Trials & Investigations

Al-Darbi Plea Documents

By Wells Bennett
Thursday, February 20, 2014, 2:35 PM

The documents were released earlier today, and all relate to the Guantanamo detainee's entry, this morning, of a guilty plea.   There are four in all: an Offer for Pretrial Agreement; Appendix A to that Agreement; a Stipulation of Fact, containing the specific allegations which Al-Darbi accepted; and, finally, a Joint Motion regarding instructions to panel members, when Al-Darbi is sentenced three and a half years from now.  (Note that the Agreement's signature page seemingly appears here as the first page of Appendix A; I suspect that was an error, and happened when commissions folks were converting to .pdf.)  Update [3:26 p.m.]: you can also find a statement from Al-Darbi's lawyers here (h/t Miami Herald).

The heart of the deal is the Pretrial Agreement itself.  There's a lot in there to digest.  Among other important things, it say this about Al-Darbi's obligations between now and sentencing-time:

13. I agree to cooperate fully and truthfully with the Government. This cooperation includes, but is not limited to, providing complete and accurate infurmation in interviews, depositions, and testimony wherever and whenever requested by prosecutors from the Office of Military Commissions and the United States Department of Justice, and representatives from United States lawenforcement agencies, the military, and intelligence agencies while I remain in United States custody. I agree that the Government may interview me without the presence of my counsel, provided that my defense counsel has received reasonable notice of the intent of the Government to interview me, the opportunity to be present for such an interview, and my defense counsel consents to not being present. The Government will provide my counsel with reasonable notice of: and the opportunity to be present for, any testimony by me under oath.

There's also this, regarding Al-Darbi's confinement:

29. As a condition precedent to my entry of a plea at my arraignment, the United States will have provided me a copy of the diplomatic notes exchanged between the United States and the Kingdom of Saudi Arabia These notes constitute a written agreement between the United States and the Kingdom ofSaudi Arabia concerning the support of both Governments for my transfer to Saudi Arabia to serve the remainder of my approved sentence if I comply with the terms of this agreement and I request such transfer effective after completing four years in United States custody following the acceptance of my plea. I understand that my transfer to Saudi Arabia is contingent upon the consent ofthe Kingdom of Saudi Arabia and that this plea agreement does not and cannot bind the Kingdom of Saudi Arabia to consent to my prisoner transfer request. I further understand that any prisoner transfer request may not be acted upon until I actually submit such a request, and any prisoner transfer request is completely separate from this pre-trial agreement that I am entering into with the Convening Authority. I understand that, if the Kingdom of Saudi Arabia ultimately denies my prisoner transfer request, that denial would have no impact on this agreement, and I would remain bound by this agreement. I understand that the continued service of my sentence will be under the conditions, laws and procedures as established by the Kingdom of Saudi Arabia. No other inducements have been made by the Convening Authority, or any other person, which affect my offer to plead guilty.

Appendix A naturally fills in further details of this arrangement: 

1.  The Convening Authority will not approve a sentence of confinement of more than fifteen  (15) years.
2.  Upon sentencing, if the Office of the Chief Prosecutor, in consultation with prosecutors from  the Department of Justice and appropriate representatives from United States law enforcement,  the military, and intelligence agencies, represents to the Convening Authority that I have provided full and truthful cooperation amounting to substantial assistance to the Government as  required under Paragraph 13 of the Offer for Pretrial Agreement, the Convening Authority will recommend to JTF-GTMO that I continue to be detained under conditions appropriate for law of war detainees, per paragraph 28 of the Offer for Pretrial Agreement.  Substantial assistance does not require that my cooperation directly result in an arrest, prosecution, or conviction.
...
4.  In the event that I am repatriated to the Kingdom of Saudi Arabia in accordance with paragraphs 29 and 30 of the Offer for Pretrial Agreement, after five (5) years having lapsed since the repatriation,  at my request, the Convening Authority will consider suspending a portion of the sentence as the Convening Authority determines to be appropriate.  Among the factors that the Convening Authority will consider in whether to suspend shall be the representations of the Office of the Chief Prosecutor that I have fulfilled the tenns of the Offer for Pretrial Agreement and the representations of the Kingdom of Saudi Arabia that I have cooperated fully with the terms of my repatriation. Should the Convening Authority, in his sole discretion under R.M.C. 1108, determine that I have provided full cooperation to United States and Saudi Arabian  authorities, the Convening Authority will suspend confinement that exceeds 9 years from the date that the Military Judge accepted my plea  The period of suspension shall run for a period equivalent to the length of the approved sentence, at the conclusion ofwhich time, unless sooner vacated, the suspended portion will be remitted.
5.  Except as provided in my Offer for Pretrial Agreement, I waive any right to assert a claim for any day-for-day credit against my sentence to  confinement based on any capture, detention or  confinement prior to the date that the Military Judge accepts my plea.