Here is a link to NIMJ blog coverage of the latest guilty plea in a militaruy commission case. The detainee, Ibrahim Al Qosi, pled guilty to providing logistical support to al Qaeda by acting as a cook, bodyguard and driver for Bin Laden. DoD’s press release, here, really doesn’t give much more detail on the nature of the charges. The linked charge sheet, here, I believe contains all of the charges against al Qosi not just the ones to which he pled guilty, but please correct me if I am wrong.

What we do know is that al Qosi won’t be getting credit for time served, like Salim Hamdan did, and walking out of Gitmo any time soon. The plea deal specifically waived the right to time served–though the new Commission Manual fixed that issue after Hamdan’s essentially time served sentence. The plea, according to the NIMJ Blog, also waives al Qosi’s right to appeal his “detention, trial or sentence, the right to challenge his conviction on collateral appeal, the right to file a habeas petition.”

54 Responses to “Military Commissions Convict Another Al Qaeda King Pin”

  1. Anonymous says:

    al quaeda king pin? Okay, if that makes you feel better – kinda like all those “20th highjackers” supposedly caught or killed. al qosi is just trying to go down a martyr.

  2. anonymous says:

    I’ve seen references to several terms of the PTA which apparently would obligate the accused to take or to refrain from taking certain actions for some extended period of time into the future.

    I’m wondering — legally and practically — is there really any way to enforce these provisions, especially after a detainee is released into another country?

    I’ve seen similar issues arise in courts-martial, given their limited in personam and subject matter jurisdiction, but at least in those cases most of the accused are still within the country.

  3. Anon says:

    I wonder whether the special terms of the PTA bar him from appearing on a TV reality show about cooking?

  4. anonymous says:

    The PTA provisions covering waiver of rights to appeal seem broader than those which currently would be allowed in a court-martial.

    Is the accused at a military commission really afforded greater liberty in this regard than our own service members? Or, is this some precedent which defense counsel could use to craft similar terms for the advantage of their clients pending trial by court-martial?

  5. anonymous says:

    Maybe a guest spot in “Hell’s Kitchen”?

  6. anonymous says:

    Military Commission Rule 705 expressly permits “a promise to waive appellate review” whereas its RCM counterpart expressly prohibits it.

  7. John O'Connor says:

    RCM 705(c)(1)(B) is, to use a technical legal term, stupid.

  8. Anonymous says:

    ok so why are we not giving credit for time served again?

    So lets say this guy gets 8 years as a sentence, so now he is going to effectively serve 16 years with the 8 he has already served but don’t count?

    Why not just give a sentence of 16 years and time served?
    I mean isn’t there a way to accomplish what you want to accomplish without making it look bad? It may not be illegal, folks may think it’s AQ so I give a damn, got it, but the optics are unattractive.

  9. Anonymous says:

    I’m just glad they didn’t start the commisssions up again with another patsy and not the 9/11 suspects. Oh, nevermind.

  10. Mike "No Man" Navarre says:

    Certain portions of the list in 705(c)(1)(B) fall into that legal category, but I wouldn’t say all do.

  11. Christopher Mathews says:

    Really, we need a snark tag for this site.

  12. Christopher Mathews says:

    Why do al Qaeda kingpins have waiver rights that are denied to our brave fighting men and women?

    /snark

  13. Anon says:

    The 9/11 suspects are in a DOJ “holdig pattern” until after the November elections….

  14. Anonymous says:

    Snark, snark. Wait, that’s snarf snarf – Thundercats. Snark tag, heh heh!

  15. Anonymous says:

    “RCM 705(c)(1)(B) is, to use a technical legal term, stupid.”

    Spoken like a true govt hack. Deprivation of rights is what govt hacks love most.

  16. John Harwood says:

    No-Man, I’m assuming your use of “King Pin” is done with tongue very firmly planted in cheek?

  17. Mike "No Man" Navarre says:

    Based strictly on objective metrics, so far, the al Qaeda job most likely to earn you a round the world trip to the Caribbean with unlimited nights accommodations followed by a trial for war crimes appears to be acting as bin Laden’s driver.

  18. brian mizer says:

    The UCMJ and MCM provide protections to servicemembers not available to civilians in Article III courts precisely because a court-martial is primarily a tool of military discipline rather than a criminal trial. One such right is the inability to waive appellate review, which guarantees appellate review of trials that often involve inexperienced participants operating with little or no supervision. The inability to waive appellate review is of great value to servicemembers and it is consistent with Professor Morgan’s belief that the system of military justice must have redundant safeguards to protect servicemembers. It is a shame that the government-drafted Manual for Military Commissions provides a guarantee that its experimental quasi-judicial process will not be tested in established courts recognized by the international community such as the D.C. Circuit. I would respectfully disagree with those who think detainees have been given a greater right than their more or equally uniformed counterparts in our armed services.

  19. anonymous says:

    Speaking as a defense hack, I join JO’C’s characterization of 705’s restrictions as “stupid”. I and my clients should have the right to sell whatever we can give away. See Mezzanato, 513 U.S. 196.

  20. Anonymous says:

    Mizer – a voice of reason.

  21. Dwight Sullivan says:

    I have no idea what al Qosi’s deal was, but the government apparently made it worth his while to plead guilty. In the negotiation process, he probably received some consideration in exchange for waiving his right to appeal. And my guess is that the value of that consideration was considerably higher than the expected value of any relief he would receive as the result of exercising his appellate rights.

    Similarly, there are many cases in which a court-martial accused could obtain consideration from the government in exchange for waiving appellate review. The expected value of appellate review in a guilty plea case is exceedingly low. As a non-government-hack, I find it regrettable that the normal court-martial system doesn’t allow an accused to make what will often be the rationale choice to receive some consideration in exchange for waiving the right to appeal.

  22. John O'Connor says:

    Except there is no inability to waive appellate review, just a prohibition on getting anything in return for waiving appellate review. Also, no prohibition on waiving all sorts of defenses (including various constitutional rights) that could be asserted on appeal, by failing to raise them at trial, or by plading guilty at trial, or by waiving them in a PTA.

    Also, Edmund Morgan’s UCMJ didn’t even have military judges, so I think it’s fallacious to presume that protections thought necessary in 1950 are perforce equally necessary in 2010. Also, Edmund Morgan isn’t exactly Moses coming down from the mountain with tablets and somehow beyond question.

  23. John O'Connor says:

    You’re a regular Hacky McHackenstein, playing Hackysack in Hackensack.

  24. DC Steve says:

    If RCM 705 bars ‘selling’ your appellate rights as part of a PTA because of the coercive nature of the military (ie don’t want servicemembers being coerced to sign a deal that has no review), what does that say about the commissions vis a vis courts-martial?

    Whatever the case, put me strongly in favor of allowing the accused to sell to the government whatever he can to get the best deal. (notable side effect – appellate courts would be free to spend more time on cases in which the accused actually contested the findings. Perhaps, with some amendments, even contested cases that are now sub-jurisdictional).

  25. Dwight Sullivan says:

    Of course, when the UCMJ was proposed and adopted, plea bargaining wasn’t a common part of military practice. Plea bargaining in the military is generally considered to have started in 1953. See, e.g., Major Michael E. Klein, United States v. Weasler and the Bargained Waiver of Unlawful Command Influence Motions: Common Sense or Heresy?, Army Law., Feb. 1998, at 3, 4-6.

  26. Dwight Sullivan says:

    I second D.C. Steve’s proposal.

  27. Anonymous says:

    Just out of curiosity, how many people have seen a PTA recently (within the past 15 years) that allows a defendant to retain some right that is normally waived in a “standard” PTA? I can’t think of too many. I’ve never seen a members sentencing with a PTA.

    I think the concern among many of the defense bar is that bargaining away your right to appellate review will become just as automatic as bargaining away forum rights, rights to raise motions, even adsep boards (and I have seen just ONE PTA that did not require that provision and there the government wanted to keep the guy).

    The world where a defendant gets a bargain for waiving his appellate rights is likely illusory. The worry that I have is that the government will incorporate the waiver into the standard PTA and say “take it or leave it.” Then, the government will be less worried about injecting error into the process – seek evidence in aggravation not permitted, over charge, etc. Because they know the D is guilty of SOMETHING, and they know that the D wants a deal.

    Pretrial negotiation is not like buying a car where you say “I don’t want the floormats, take $200 off the price.” Its a lump sum, here yah go. Of course, maybe this would result in fewer plea deals. That would be good for advocates who want members trials.

  28. Presley O'Bannon says:

    My thoughts exactly.

  29. Anonymous says:

    JO’C is spot on, as usual. Anon 1619, grow up.

  30. anonymous says:

    Although I support a change which would allow the defense to waive appellate review, I think Anon 756 has a point. It’s not defense counsel and their clients who can’t be trusted to bargain away the right, it’s trial counsel/SJAs/convening authorities who can’t be trusted to appreciate its value given their own parochial interests.

    Too often a permissible term becomes a “standard” term, evolving into a “required” term. And, trial counsel et al. then grow too lazy to engage in an individualized assessment of cases and the value which a plea — and the particular terms of the PTA — might have.

    Using appellate review as an example, since it costs a TC/SJA/CA nothing, they might very well decide it’s worth nothing. It would require influence from above to convince them of the actual value to the (big “G”) Government.

  31. Michael Korte says:

    THIS.

  32. Anonymous says:

    Anon 11:51am, get off JOC’s strap. Precisely because an accused might get detailed someone who shares your deprivation of rights position, RCM 705 is a necessary rule. Once the services put a defense bar in place, staffed with DC who really want to be in that position, then maybe there’d be no need for the rule. But far too many DC are not so defense oriented, or just too damned inexperienced and outgunned, so the rule is still a necessity.

  33. Anonymous says:

    I fundamentally disagree. It would become the new norm. Govt would require waiver of appellate review, and understandably most clients would go along with it because the alternative would be a naked plea or contest.

    We’d see natural sloppiness on providency because after all, appellate review is waived so if you get it wrong no one is watching. Some judges would still be strict about providency while others would just do the quick and easy version, did you do it? Yes, ok good enough for me.

    If we were near error-free on providency, and UMC, and sentencing credit, and what is and is not proper aggravation, etc then maybe, but we aren’t close.

    As long as we are using hard working but woefully inexperienced trial counsel (and often not much more experienced defense counsel), then count me as one who thinks waiving appellate review is a bad idea.

  34. Anonymous says:

    Absolutely agree, it would be the new norm, well no, the new requirement.

    DC and accused would have little bargaining power, in fact, I’d argue as you say there would be no separate bargaining for this provision anymore than there is separate bargaining for a judge alone forum, or waiver of motions.

    So at the end of the day, you wouldn’t have the idealized extra bargaining that accused could choose to engage in to get a little extra off the top in exchange for no appellate review.

    You’d have the same here’s our offer, X months, take it or leave it, and agree to our list of demands which now automatically include waiver of appellate review.

    It may be a good idea in theory, but it would be a bad idea in practice.

  35. Dwight Sullivan says:

    Are there cases in which the government would cut a deal if the defense could assure the government that there wouldn’t be appellate review but where the government won’t cut a deal if the defense can’t offer such an assurance? The answer is certainly yes; in fact, that scenario seems to have a tendency to arise in potentially capital cases. Where both the accused and the government want to cut such a deal and where it’s in both of their interests to do so, why should the system prevent them from doing so? If the answer is to protect the sub-3% relief rate for those appealing guilty plea court-martial cases (and much of that less-than-3% relief isn’t even meaningful), I question the cost-benefit analysis.

  36. brian mizer says:

    I don’t disagree that there are a handful of capital cases where LWOP is not available due to the date of the offenses and in which convening authorities have sought waiver of appellate review out of fear of NCPB’s high rate of parole for those convicted of premeditated murder. Hopefully, the number of murders occurring before 1998 will decline. I submit there are far more cases that would evade review once waiver of appellate review became a standard term of plea bargains as it is in federal court here in Virginia. See e.g., United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006). The military justice system has made tremendous strides since Professor Morgan came down from the mountain top, but the ability to abuse a system that is rightly more flexible and less protective of servicemembers’ rights continues to require the mandatory oversight required by Article 66.

  37. Southern Defense Counsel says:

    Colonel,

    I think that the benefit to the accused now is that the government doesn’t overreach in guilty pleas because they know that it’s going to get appealed if they get a jurisdictional punishment. That said, it is perverse that a contested case where the accused doesn’t get a BCD or more than 12 months gets only JAG review (if that, most DCs have no clue how to help a client file an Article 69 appeal).

    The real problem I see with this is assuming that defendants and the government are dealing at arms length. Of course, one could argue that there is just as much coercion, if not more, in civilian courts, but I don’t think that forcing the TC to think before putting on the Gunny to testify that putting the accused in PTC before he pled guilty had a negative impact on the unit since other people had to take up the slack while he was locked up because, just maybe, that’s improper evidence in aggravation… Just my two cents.

  38. Dwight Sullivan says:

    Brian,

    CAAF has, of course, ruled that the accused can waive his right to raise a UCI objection. United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995). The recent rage, of course, is to include in a PTA a provision that the accused “waives all waivable motions.” In light of Weasler, I assume that such a provision would include a waiver of any UCI issue. So the government can probably already demand a renunciation of Lewis-type relief in a guilty plea case. How much does an accused or the system lose by allowing the parties to bargain away the accused’s right to appeal? How much does an accused and the system gain by allowing the parties to enter into a pretrial agreement where the CA will do so only with a guarantee that doing so will bring the case to an end and not result in remand for a retrial years down the road? Sometimes one of the things that the CA really wants to buy is that assurance that the case won’t be bounced on appeal. Where that’s what the CA wants to buy, I would allow the accused to sell it to him or her. I agree with the point that such a provision might become boilerplate and the right to appeal would end up being sold in a lot of cases where the CA doesn’t really care about buying it. But I view that as a relatively small cost to the system, especially given the low relief rate in guilty plea cases and the even lower rate of MEANINGFUL relief in guilty plea cases. (Of course, the relief rate should be low in guilty plea caess.)

  39. What, what what?!? says:

    From the guilty plea of a “kingpin” in a kangaroo-court to a discussion of whether courts-martial should be more kangaroo-court-like?

  40. anonymous says:

    3W?!?,

    This particular kangaroo — waiver of appellate review — abounds in both military commissions and federal prosecutions under Article III courts (with its appearance in the former, I’d guess, being a result of the heavy DOJ influence on contemporary military commissions). The question, as I see it, is why the accused in courts-martial shouldn’t have the same rights as their counterparts in either of these fora.

  41. Anonymous says:

    Doesn’t the cost/benefit analysis only work when there is an actual bargained for exchange?

    Once appellate waiver is allowed, it will cease soon after to be a bargained for exchanged and will almost immediately become standard practice, in which case, it ceases to be a bargaining tool available to the defense and becomes just one more thing you gotta do to get your deal, just like waiving a panel.

    I’d guess that a few years after such a rule were implemented you’d be able to count on one hand the number of cases that didn’t have such a waiver included.

    So how does that help the accused? The system? Other than I suppose lightening the appellate load? (of course, there is no indication the service courts will do a better job if they only had to review contested cases).

  42. Dwight Sullivan says:

    SDC — You and I are certainly on common ground in thinking that the military justice system should provide a right to judicial review of any contested finding of guilty in a GCM or SPCM case regardless of sentence. Given the military appellate courts’ dockets, it would be absurd to suggest that the system doesn’t have the capacity to provide such review. And given the enormous collateral consequences that accompany many — if not most — findings of guilty, the punitive discharge/1 year’s confinement line of demarcation no longer makes sense. My guess is that originally, part of the thinking was that for someone who didn’t receive either a punitive discharge or more than a year of confinement, an appeal really wouldn’t help very much because the sentence would have already been served by the time appellate review was complete. But now, not only does a BCD provide a permanent stigma, but so does the conviction itself — to a far, far greater extent than was the case in 1950.

    I would extend the right, however, only to those who are convicted of any specification to which they pleaded not guilty. Those servicemembers should be granted a statutory right to appeal their contested conviction to a court — a right that I believe exists for anyone found guilty of a criminal offense in any other American court, plus the military commission system.

    Finally, I would note that while I believe Congress should enact such a statutory right, any individual service’s Judge Advocate General could essentially adopt such a system within that particular service by adopting a policy that any Article 69 appeal in a case with a contested finding of guilty will be referred to the CCA.

  43. Jason Grover says:

    As a disclaimer, I was one of the counsel for Tate which used R.C.M. 705(c) to overrule U.S. v. Thomas. But as a general matter, I have to agree with J’OC. It is very paternalistic to tell an Accused what he can sell and what he cannot. This is especially true in a death-penalty case where the stakes are so high.

  44. Jason Grover says:

    I just mentioned I was one of Tate’s counsel. Mizer, of course, argued Tate! Mizer, I have to disagree when we are talking about capital cases. The ability to waive issues may very well encourage a CA to sign a deal that they might otherwise not sign to save an Accused’s life. And in capital litigation, that is the goal. I rarely disagree with Mizer, who is better looking, harder working, and smarter than me, but I am going to disagree on this one.

  45. Jason Grover says:

    Col,
    The value in a capital retrial might be significant. Think Quintanilla. Familiar disclosure, both Col Sullivan and I represented Quintanilla on appeal.

  46. Jason Grover says:

    And, as I think about it, I believe JO’C represented the government in Q at the first trial. Small world.

  47. Jason Grover says:

    Mizer, your point about capital retrials is well-taken, perhaps I should read all the comments before I start replying.

  48. Anonymous says:

    Who are these commenters? How did you get here?

  49. Anonymous says:

    I actually read some garbage on some Security Law blog today that argued that the commissions are a biggger failure than ever after the fourth conviction. That’s right. The more convictions you get, the more of a failure you are! Awesome logic.

  50. AF Lurker says:

    Anon 756, I’m aware of two AF cases this year where the PTA departed from the ‘norm’. One agreed to members sentencing and the other
    to deferment of confinement. Both are still pending appellate review, but they exist. In my experience departures are rare, but not endangered.

    On the flip side, I’ve heard one NAF is severely restrictive of the defense sentencing case, e.g., requiring waiver of all defense sentencing witnesses as a standard PTA term. That’s a bridge too far in my opinion — might as well show the judge the PTA quantum with the offer, and add their signature block. That said, I think some states allow guaranteed minimum sentences in PTAs.

    The rest of this is probably not worth reading. But for the J’OC waiver camp, my greatest unease is how knowing whether a case you’re on will be reviewed affects behavior of MJs and other trial actors (“moral hazard”). MJs review PTA terms before receiving pleas, but advisement of appellate rights is often the last appellate exhibit received in a GP case, just before court’s over. And even in a GP case, all actors know there’s some level of review, and some chance of appellate overhaul.

    In my experience, that mere potential for review factors significantly into trial strategy on both sides, and even more significantly in trial judge bench decisions. CAAF will need no help in finding authority to expand jurisdiction, but what transparency and review standards should the MCM, appellate courts, and TJAGs embrace for challenges that will surely come to waivers?

    One of the most bargained-for provisions of the UCMJ was independent appellate review. It’s also one of the hallmarks cited to defend the legitimacy of the MJ system. (Ironically, the battle to secure service support for CAAF left intact the absence of appeal for personnel attached to ships receiving NJP, oft mentioned on this blog as an exampe of injustice).

    Have we sufficiently improved in self-policing so review is unnecessary in most cases (the old argument that failed for exclusive review by military review boards), and/or is review as it stands so worthless in most cases that we should trust the plea bagain marketplace to find an efficient balance (JOC’s proposed corollary to the old argument to eliminate military review boards entirely)?

    Will case law developed almost exclusively by review of contested cases, or a new body of case law on review of waivers, be an improvement? And, to echo an earlier post on don’t-emulate-the-commissions, does waiving appellate review in most cases make the MJ system (appear) more or less fair, legitimate, and modern?

  51. Mike says:

    I think the point that everyone is missing here is really quite obvious: “King Pin” is actually one word, i.e. “Kingpin.”

  52. W says:

    ANON1731. What escapes me in your analysis (and that of others who state similar concerns above) is exactly how hypothetical Government intransigence on appellate waiver invariably leads down a slope of prosecutorial over reaching.

    First, if a defense counsel doesn’t think the Government can prove a charge on the charge sheet, then recommend against a plea.

    Second, I don’t think anyone advocating for reform here would simply include a waiver of all post-trial relief rights. Apply the law degree hanging on the wall and tailor the provision – and if the Government won’t budge and your client doesn’t like it – don’t plead. The only way something becomes a “requirement” is if DC let it become such. If the Government cares strongly enough to hold the line – then put them to the test.

    The sheer breadth of Navy-Marine Corps PTAs (and negotiations) are astounding. Take a look at Federal practice where (on most cases) a defendant can plead (and get points off on the guideline), or not. Those are the usual options – and I dare say they make sense if the Government isn’t over reaching in the first place.

  53. Anon2 says:

    Just like federal plea agreements, in which a defendant signs to get out from under various aspects of the Sentencing Guidelines, the PTA for the AQ “king pin” (cook = king pin, apparently?) was signed with the backdrop of an “option” to wait in the queue who knows how long for a trial in commissions. Given a choice between an exhorbitant sentence (a la US Sentencing Guidelines)/indefinite detention pending an unknown trial date, or having some certainty of a release date — guess what? Defendants/Commission accused will sign deals….But is that the sort of justice we want meted out?

    Where it is legally available, appellate waiver is not a bargaining chip for a defendant. It certainly isn’t in federal practice. Rather, it allows the government to ensure it escapes scrutiny, and as some suggested above, leads to sloppy practices. It ends in the inevitable slippery slope, too, where standard waivers begin to include eschewing other rights: e.g., Brady discovery (See Ruiz, SCOTUS 2002). Again, is that the sort of justice we want? Is that truly bargaining power for a defendant…???

    In the end, the value of appellate review in courts-martial is not entirely measurable. The question isn’t “What’s the use of appealing a PTA case, when so few of these end up getting relief anyhow?” Rather, the question ought to be, “what conduct and overreaching has been averted BECAUSE there is appellate review?” The very inability to waive appeal, the pressure that potential appellate review brings, operates as a shield whose effectiveness, unfortunately, cannot be measured.

  54. Anon2 says:

    someone who has worked in commissions at some point, and in federal criminal practice at some point. Not in need of advertising, and no more foundation is necessary.