Rising 3L American University Washington College of Law student Charlie Fowler represented NIMJ as an official non-governmental observer in Guantanamo Bay this week. He was there to watch al Qosi, plead guilty. He filed this report:

Yesterday, July 7, 2010, Ibrahim al Qosi plead guilty to conspiracy and to material support for terrorism, as part of a pre-trial agreement that would limit the amount of time that al Qosi would serve. The two charges carry a maximum of life in prison. Although neither the revised charge sheet, nor the jointly stipulated statement of the facts were available before trial, and the pre-trial agreement will remain sealed until after sentencing, the military judge, Air Force LTC Nancy Paul, read from all three documents to ensure that al Qosi’s plea was knowing and voluntary, and in compliance with the Rules for Military Commissions.

On the conspiracy charge, al Qosi agreed that he was a member of al Qaeda since February 15, 1996, knew that al Qaeda was an internationally recognized terrorist organization, and knew that Osama bin Laden had issued a fatwa against the United States and its citizens with the aim of influencing the behavior of the country and its citizens. Al Qosi provided logistical support for al Qaeda—he was a cook and driver for bin Laden and other al Qaeda leaders, and this employment was the sole means of support for al Qosi, his wife, and children.

For the second charge, providing material support for a terrorist organization, the stipulation enumerated the several times that al Qosi had moved to follow bin Laden and al Qaeda, from Sudan to Pakistan, then to Afghanistan after Kabul fell to the Taliban. While in Pakistan, in the winter of 1996 and spring of 1997, al Qosi served as the cook at bin Laden’s compound outside of Jalalabad. Al Qosi helped with the move from Jalalabad to a larger compound at Khartoum, where he served as the cook in the unmarried quarters. Although al Qosi did not have foreknowledge of, plan, or participate in the 1998 attacks against U.S. embassies in Dar es Salaam and Nairobi, the 2000 attack against the USS Cole, or the 9/11 attacks, al Qosi continued to work for and take orders from members of al Qaeda after learning of the organization’s involvement in these attacks.

The portion of the pre-trial agreement the judge read at trial set forth a few conditions, in return for a promise by the convening authority to limit the sentence to an agreed-upon number of years in confinement. Al Qosi agreed to the government’s stipulation of the facts, agreed to a limitation of his rights to call witnesses at sentencing, and agreed not to support hostilities against the United States or coalition members or provide operational support for such activities in the future.

Most importantly, the defendant waived the right to receive credit for time served—amounting to over eight years—credit that he would not receive anyway under the 2009 Military Commissions Act.. He also waived the right to appeal his detention, trial or sentence, the right to challenge his conviction on collateral appeal, the right to file a habeas petition, and agreed to withdraw his current habeas petition following sentence. He still retains the right to challenge a sentence in excess of statutory limits or whatever limit is contained in the pre-trial agreement. Finally, al Qosi agreed to refrain from taking action or joining an action against United States or other personnel, acting in their official capacity or otherwise, with regards to his capture, detention, prosecution or sentencing. At trial, al Qosi’s right to challenge an Executive branch decision to detain al Qosi as an unprivileged enemy belligerent after serving his sentence was not addressed. Although his defense counsel would not discuss any particulars of the pre-trial agreement, indications are that al Qosi retains the right to file a future habeas action to challenge any post-sentence detention.

A sentencing hearing is currently scheduled for August 9, 2010. The pre-trial agreement will remain sealed until after sentencing, and the panel—not present at yesterday’s hearing—was instructed on July 1 to refrain from reading about the hearing or anything else that would otherwise affect their ability to sentence fairly. In a press conference shortly after the trial, the government counsel, while declining to discuss the pre-trial agreement, stated that repatriation or transfer for detention was outside the control of the convening authority or a pre-trial agreement, and declined to comment about any agreement as to which compound in Guantanamo al Qosi will serve his sentence. The defense counsel decided not to issue any statements.

Preparation before traveling to Guantanamo to observe the trial was difficult, because of the lack of publically available information. It is very surprising that the first successful Guantanamo detainee conviction under the Obama administration and only the fourth since 9/11 should still be so clouded in secrecy. The most recent information on the Department of Defense’s Military Commissions website about al Qosi’s case is the November 20, 2009 docketing order for December 2 oral arguments on several defense motions. The Military Commission website does not have the current, amended charge sheet or the stipulation of fact. Nor does the website have a transcript of the December 2 oral argument or the judge’s rulings on the motions argued on that date, including several defense motions to dismiss for lack of jurisdiction—bill of attainder, Common Article 3 of the Geneva Conventions, and Equal Protection. The commission’s ruling on the government’s motion to amend charges is not on the Commission’s website, but is publicly available, as are several other documents not available on the official website.

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