By Melina Milazzo, Pennoyer Fellow, Law and Security
Guantanamo Bay, Cuba
Last month, the one time driver, cook and sometimes bodyguard of Osama bin Laden pled guilty to conspiracy and material support for terrorism. The U.S. government immediately touted al Qosi's guilty plea as a victory and vindication of the military commissions system. At the time, that statement seemed like a stretch. Now, after this week's hearing, it seems even more tenuous.
On Monday, the sentencing hearing of Ibrahim Ahmed Mahmoud al Qosi began. The slender 50-year old Sudanese entered the military commission courtroom in Guantanamo Bay for what most anticipated would be one of his last times.
Al Qosi, one of the first detainees to arrive at Guantanamo Bay, Cuba, has been here since 2002. He was first charged in February 2004. But every time the military commission rules change - which have been three times so far - his charges have been dismissed and re-issued. As a result, al Qosi has been detained for 8 long years - in and out of the commissions' courtroom but never receiving justice.
So one could imagine that when al Qosi entered the courtroom on Monday morning he must have felt some level of relief that this week would bring some closure. Indeed, the military court expected to seat a jury panel by Monday and hoped they would recommend a sentence by Tuesday or Wednesday. Al Qosi then would serve the lesser of either the jury panel's recommendation or the sentence negotiated in his plea agreement - marking the beginning of the end to his time at Gitmo. But nothing at the military commissions happens as expected.
Before beginning the questioning of the potential jury panel, military judge Lt. Col. Nancy Paul ruled that it was in the best interest for both the government and al Qosi that the details of his plea agreement should continue to be sealed until after his confinement was completed. This meant that the maximum sentence in which al Qosi could serve would remain secret.
While nothing in the military commissions' rules prohibits this from happening, it is unprecedented in both U.S. federal court as well as U.S. court martial. Moreover, shrouding his plea agreement in secrecy does little to provide much needed transparency to a grossly opaque system. Nonetheless, defense did not raise any objections and the judge moved to address the next issue.
Defense counsel Paul Reichler summarized at length why the defense filed a motion to compel the government to comply with what he described as sine qua non - an essential condition - to the pre-trial agreement. According to Reichler, a major part of the negotiations focused on detention conditions and it was clearly understood by all parties that al Qosi would remain in Camp 4 - a communal living environment - and not be kept in conditions of isolation.
However, as of Monday morning, the government contended that al Qosi would be placed in solitary confinement. Al Qosi's attorney stated, and prosecution agreed, that al Qosi has complied fully with all his commitments and obligations under the plea agreement and the issue, therefore, was whether the U.S. government would do the same.
Surprisingly, the prosecutor wholeheartedly agreed. He stated that it was the full intent of the agreement that al Qosi would remain in Camp 4 and that al Qosi has done everything he was asked to do and now the U.S. government should be compelled to fulfill their promise. Agreeing with both sides, the judge ordered that al Qosi remain at Camp 4 or at a comparable facility if one is created and that "failing to do so is a violation of [the plea agreement] and would render al Qosi's plea improvident."
Defense counsel, prosecutor, and judge deserve much credit for their mutually strident defense of the plea agreement. But one has to wonder why does the prosecutor who works on behalf of the government need to ask the court to order the government to honor its word? After all, wasn't the plea agreement between al Qosi and the U.S. government? The problem has little to do with the prosecutor, but rather with the military commissions system itself.
The U.S. military commissions were designed to deliver second class justice to so-called alien unlawful enemy combatants. Initially they were created in secret, in an ad-hoc manner outside the borders of the United States in order to escape judicial and public scrutiny. While some positive changes have been made, the military commissions remain beleaguered by a lack of clear guidance and precedent. Therefore, while a federal court has hundreds of years of precedent to guide it, every issue before the military commissions is of first impression. As a result, seemingly straightforward matters like honoring the conditions of a plea agreement become complicated issues.
Nonetheless, the court in this instance addressed the issue and moved forward - or at least it seemed.
In an unexpected twist, just as both sides finished questioning the military panel members, prosecution requested that the commission adjourn for the day. After receiving some pushback from the judge, prosecution stated that an "issue" arose which required immediate attention. The judge after conferencing with both sides agreed to adjourn for the day in order to give them time to resolve the undisclosed issue and ordered court to reconvene Tuesday morning. It never did.
Rumors suggest that the "issue" involves al Qosi's confinement conditions - the heart of the plea agreement. Court is scheduled to reconvene Wednesday morning and while it is not clear what the issue is and whether it will be resolved, what is clear is that confusion and chaos continue to plague the military commissions.