Bin Laden Cook Accepts Plea Deal at Guantanamo Trial

In an alleged victory for the Military Commission trial system for terror suspects at Guantanamo, revived by President Obama last year despite the fact that he suspended the Commissions
on his first day in office, a Sudanese prisoner, Ibrahim al-Qosi,
accepted a plea bargain yesterday, and made a guilty plea on one count
of c

In an alleged victory for the Military Commission trial system for terror suspects at Guantanamo, revived by President Obama last year despite the fact that he suspended the Commissions
on his first day in office, a Sudanese prisoner, Ibrahim al-Qosi,
accepted a plea bargain yesterday, and made a guilty plea on one count
of conspiracy and one count of providing material support to terrorism.

In the six years since al-Qosi, now 50 years old, was charged in the
first incarnation of the Commissions (which were ruled illegal by the
Supreme Court in June 2006), he has been accused of serving as the
accountant for a company run by Osama bin Laden in Sudan from 1992
onwards, of visiting Chechnya to fight in 1995, with bin Laden's
support and permission, of serving as a bodyguard, cook and driver for
bin Laden in Afghanistan from 1996 onwards, and of fighting in
Afghanistan as part of a mortar crew. He was seized in December 2001,
crossing the border from Afghanistan to Pakistan.

Charged again in February 2008, and again last November, he had, until yesterday, taken part in several inconclusive hearings,
and had, for the most part, watched as the government largely failed to
secure any legitimacy for the Commissions, winning only three dubious
victories: David Hicks (via a plea deal) in March 2007, Salim Hamdan after a trial in August 2008, and Ali Hamza al-Bahlul, after a one-sided trial in which he refused to mount a defense, in November 2008.

At his hearing on Wednesday, the final picture that emerged, as the Miami Herald
explained, was of a man who left Sudan to follow bin Laden to
Afghanistan, taking his wife and children with him, and who "admitted
that his work for al-Qaeda was his family's only means of support." He
also admitted that he "went to Pakistan for al-Qaeda and met the
Taliban's top leader, Mullah Omar, who used to stop by the terrorist
compound on holidays," that he "drove a caravan of vans when bin Laden
and his associates went to Kandahar, where married and single
terrorists were separated into groups in two-room apartments," and
where he "cooked for the bachelors," and that he "also spent more than
a year on the front lines, getting bombed on the Pakistan border and
coming under fire from US helicopters in Jalalabad."

During the hearing, he told the judge, Air Force Lt. Col. Nancy
Paul, that "he acknowledged his offenses and he understood his plea
deal," as the Associated Press
explained, although he "did not speak at length." The details of the
deal, which have spared him from facing additional charges at a trial,
were not disclosed, although rumors of a deal have circulated for
several months, and it was understood that a plea deal would also
prevent him from receiving a life sentence, as may have happened had
his case proceeded to trial. The Miami Herald noted that the
Dubai-based Al-Arabiya satellite news network, "[c]iting two anonymous
sources who read the plea agreement," reported that he "agreed to a
maximum of two more years in prison before he is sent home to Sudan."

A panel of military officers is scheduled to deliver al-Qosi's
sentence on August 9. Navy Capt. David Iglesias, a spokesman for the
Prosecution Office of the Military Commissions, explained that
"[m]ilitary legal authorities can reject the panel's sentencing
decision if it exceeds what was agreed upon as part of the plea deal."
He "declined to say how much more time, if any, the prisoner could
serve under the agreement," but stated, "Both sides reached an
agreement that they felt was fair and it would be against the interests
of justice not to accept it."

Iglesias also said that al-Qosi "admitted to knowing [bin Laden]
personally, helping him and was willing to follow him around. He was
somewhere between a foot soldier and less than a general. We are not
talking about robbing a 7-Eleven in Hialeah. We are talking about war
crimes." This analysis, which was perhaps acceptable until it came to
Iglesias' conclusion about "war crimes," was strongly challenged by
critics who have opposed the Commissions throughout their generally
dismal eight-year existence, and who were dismayed when President Obama
decided to revive them last May, conveniently forgetting how much he had opposed them as a Senator in 2006 and 2007.

Stacy Sullivan, a senior counter-terrorism advisor for Human Rights
Watch, said, "He's a cook who served as a driver and possibly a
bodyguard, Can you imagine if, during Nuremberg, they prosecuted cooks
and drivers? It didn't happen. They consider the fourth conviction in
eight years a victory?" She also noted, as the Miami Herald
explained, that al-Qosi's "accusations of abuse, including that he was
wrapped in an Israeli flag and subjected to loud music, was not
mentioned in court," and nor was there any mention of claims made in
2005 by Lt. Col. Sharon Shaffer, who was assigned to represent al-Qosi
at the time, who "characterized his treatment as possibly torture but
certainly inhumane treatment; he was held in stress positions for
protracted periods, subjected to military dogs and sexually humiliated."

Adding to the criticism, Daphne Eviatar, a senior associate in Human
Rights First's Law and Security Program, stated, "This is not a victory
for the military commission system. In fact Mr. al Qosi's case is a
textbook example of the inability of the military commission system ...
to achieve swift justice. The case has dragged on for more than six
years without a trial."

Given how shambolic al-Qosi's last hearing in December was, it is
unsurprising that the administration chose to pursue a plea deal rather
than a full-blown trial. On that occasion, as I explained at the time,
Lt. Col. Paul resisted the prosecution's attempts to push back the
start date of al-Qosi's alleged crimes from 1996 to 1992, noting that:

although the rules regarding proposed changes in the new
Military Commissions Act appeared to provide no guidance on this point,
the relevant passages in the 2006 Act, which were drawn substantially
from passages in the US military's Rules for Court-Martial, were clear
that the government's request constituted a "major change" to the
charges, and that "major changes may not be made over the objection of
the accused unless the charges are withdrawn and re-referred."

She added that the proposed amendments were "troubling in nature as
the four-year extension of time and addition of overt acts dramatically
changes the nature of the offense alleged," noted that the request
disrupted trial preparation which "has been ongoing for almost 2
years," and, in conclusion, denied the request because the changes "are
essentially new and additional offenses and contain substantial matters
not fairly included in those previously referred," and, additionally,
because they bring "unfair surprise to the Accused." In the courtroom,
as Devon Chaffee [an observer for Human Rights First] explained, Lt.
Col. Paul made a point of adding that, five years after the government
first filed charges against al-Qosi, the defense still "doesn't even
know what the charges are going to look like."

With the plea deal, further embarrassments like these will
presumably be avoided (in al-Qosi's case at least), as will legal
challenges to the charges themselves - of conspiracy and material
support - which have both been subjected to serious criticism, leading
to doubts about whether either charge will stand up on appeal.

In Hamdan v. Rumsfeld,
the case in which the Supreme Court shut down the Commissions' first
incarnation, Justice John Paul Stevens, in an opinion in which he was
joined by three other justices, made a point of mentioning that
"conspiracy" has not traditionally been considered a war crime.
Moreover, on the charges of material support, which are currently being appealed in the cases of Salim Hamdan and Ali Hamza al-Bahlul,
senior administration officials proposed to Congress last summer, as
the Commissions were being revived with lawmakers' support, that the
charge of material support for terrorism should be dropped. As I
explained last December:

Assistant Attorney General David Kris conceded (PDF),
in Congressional testimony in July, that "there is a significant risk
that appellate courts will ultimately conclude that material support
for terrorism is not a traditional law of war offense, thereby
reversing hard-won convictions and leading to questions about the
system's legitimacy." The Justice Department's position was echoed by
the Pentagon, where General Counsel Jeh Johnson also accepted in July (PDF)
that "material support is not a viable offense to be charged before a
military commission because it is not a law of war offense."

The irony, as I also noted at the time, was "not only that David
Kris and Jeh Johnson failed to persuade Congress to drop the charge of
material support for terrorism, but also that Congress ignored Kris'
additional suggestion that 'material support charges could be pursued
in federal courts where feasible.'"

With this in mind, it may be worth watching out for more plea
bargains in the Military Commissions, while everyone who should know
better - or who has influence but no insight - continues to ignore the
fact that the Commissions should never have been revived, and that any
trials should take place in federal courts.

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