From NIMJ’s observer Charlie Fowler, reporting on Wednesday’s hearing:
We didn’t know what to expect Wednesday, after the confusion of Monday and Tuesday. But the panel announced a sentence of 14 years. The pre-trial (PTA) agreement provides that the length of sentence agreed upon by the parties and the Convening Authority will remain sealed until al Qosi is released to Sudan. According to Captain Iglesias, via the Washington Post on Tuesday, the sentence will be released after review by “military officials,” in a matter of weeks. But the military judge said in court that the deal would remained sealed until al Qosi is released to Sudan.
The military judge started the day by clarifying what had been going on in the 802 conferences yesterday, which was that both counsel and the Convening Authority were trying to resolve issues of the post-conviction detainment. In the Regulation for Trial by Military Commission (2007), the CA is supposed to coordinate with the detaining authority—in this case Joint Task Force-Guantanamo (JTF-GTMO) and USSOUTHCOM—and, as the judge pointed out, good military procedure also requires that there should be coordination between the Convening Authority and the Joint Task Force on any kind of promise of post-conviction retention in Camp 4, the communal living facility in which al Qosi is currently being detained. Specifically, Rule 12.7 says:
a. The convening authority and the accused may agree to include provisions related to the nature of confinement. Prior to reducing any such arrangement to print, the convening authority shall coordinate with the Commander of Joint Task Force-Guantanamo and receive written confirmation that such an arrangement is acceptable and will be honored. Should such an arrangement be agreeable to the Commander, the Commander will return a signed writing to that effect and the convening authority may proceed with the PTA. Any counter-offer or adjustment to the PTA must be concurred with by the Commander.
b. Should, after acceptance and execution of the terms of the PTA, conditions change such that the command may no longer facilitate the agreed-upon provisions, the PTA shall become void and the accused may withdraw his plea and appeal to the highest court which last reviewed his case preceding any review conducted by the United States Supreme Court.
Trial counsel said they read 12.7 (a) and (b) together to mean that they didn’t have to coordinate with JTF-GTMO because the PTA contained a “recommendation,” not an order, to keep al Qosi in Camp 4 for his confinement.
Surprisingly, the trial counsel and Convening Authority didn’t let the JTF know that there was anything about post-conviction confinement in the PTA until on or around 7 July 2010, the date al Qosi pled guilty. But the trial counsel and Convening Authority didn’t get an acknowledgment from the JTF and the Deputy Assistant Secretary of Defense for Detainee Affairs (DASD/DA) until 5 Aug 2010, four days before sentencing started. The judge’s description regarding the whole procedure made it seem even more labyrinth; the JTF has to acknowledge that a post-confinement arraignment is in the PTA, even if the JTF doesn’t agree with it.
Interestingly, the Sudanese national intelligence service was kind enough to furnish to the American embassy in Khartoum a letter detailing its rehabilitation program for repatriated detainees from GTMO, of which there have already been several. There is a standard procedure for repatriated detainees: depending on the crimes the committed, they are given a psychiatric and physical examination; if they hold extremist ideology, they are held and given moderate religious training, marriage counseling or matchmaking and job training by imams; once they are deemed fit for release they are returned to their families, found jobs and attend moderate mosques; their phone and email are tapped and monitored to make sure they don’t contact extremists; they are monitored by informants at their workplaces; and if they are caught slipping back into radicalism, they are detained and sent to retraining.
Probably the most troubling news today was that the JTF has no written policy for post-conviction confinement. Yes, even though Hamza al-Bahlul is currently serving a life sentence in Guantánamo, there is no policy for where he is confined, if he is segregated, if he will spend the rest of his life in solitary confinement. Judge Paul found this “especially troubling” in light of the fact that two commissions were in—as of Wednesday—that will likely result in confinement of two more convicted war criminals. On 8 August 2008, the DASD/DA sent a letter to USSOUTHCOM requiring them to come up with a policy for the detention of detainees post-conviction, but nothing has been done to fulfill that request.