In an alleged victory for the Military Commission trial system for terror suspects at Guantánamo, 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.