US military jury recommends 14-year sentence for Al Qosi

A US military jury on Wednesday recommended a 14-year sentence for Sudanese Guantanamo Bay [JURIST news archive] detainee Ibrahim Ahmed Mahmoud al Qosi [DOD materials; JURIST news archive]. Al Qosi agreed to a plea deal Tuesday after pleading guilty [JURIST reports] to charges of conspiracy and providing material support for terrorism in July. The details of the plea agreement will remain sealed until he is released from prison. The 10-member jury was not informed of the plea deal, and, if their suggested sentence exceeds that of the plea agreement, their recommendation will be set aside. Judge Nancy Paul also found that the US military had failed to develop plans [Guardian report] for the housing of convicted detainees during their sentence. She ruled that al Qosi will be allowed to remain at Camp 4, a facility at Guantanamo reserved for the best behaved detainees, until the military finds a place to house him for the remainder of his sentence. The plea deal originally urged the judge to recommend that al Qosi serve the entirety of his sentence at Camp 4, but Paul rejected this [AP report] because military rules forbid communal housing of convicts. Paul still found the plea deal to be valid because the Camp 4 provision was only a recommendation. The details of al Qosi’s sentencing will not be revealed until it is reviewed by Defense Department officials. Following the conviction, Human Right Watch (HRW) [advocacy website] criticized the proceedings [LAT report] for the secrecy surrounding the plea deal. Before the agreement, al Qosi faced possible life imprisonment after pleading guilty to supporting al Qaeda [CFR backgrounder] in their hostilities against the US since 1996, acting as the group’s cook and accountant in the 1990s and as a bodyguard for Osama bin Laden [CFR profile] in later years.

Officials have 60 days to determine where al-Qosi will serve his sentence.

U.S. lacks policy on housing detainees convicted in military commissions

The Defense Department has no written policy on how detainees convicted in military commissions should be housed after they are sentenced, despite a 2008 Pentagon directive to create a plan for such prisoners at Guantanamo Bay, a military judge said according to the Washington Post.

U.S. Supreme Court Asked to Stop Khadr Trial

Omar Khadr, the Canadian charged with crimes he allegedly committed when he was 15 years old, is set to be tried before a military commission at Guantanamo Bay beginning August 10.  Four months ago, Khadr’s lawyer, Army Lt. Col. Jon Jackson, filed a petition challenging the constitutionality of the Military Commissions Act of 2009 with the D.C. Circuit Court.  The court has not acted on the petition. So, on Monday, August 2, Jackson filed an Emergency Motion with the U.S. Supreme Court to stop the trial from proceeding until the D.C. court acts.

Jackson argues that the system under which Khadr would be tried is unconstitutional because it is applied only to non-US citizens. He said, “The military commissions provide young Omar, a Canadian citizen, only second class justice. This kind of discrimination is something we cannot stand for as a country.”

Guantanamo update

Judicial decisions

Federal Court maintains stay on Khadr habeas petition
(JURIST) The US District Court for the District of Columbia on Tuesday allowed Canadian Guantanamo Bay detainee Omar Khadr to amend his 2004 habeas corpus petition, but refused to lift the stay on the petition pending the conclusion of his military commission.

The petition was stayed under a criteria set forth by the US Supreme Court’s 1975 decision in Schlesinger v. Councilman, staying action on the petition until the resolution of the military commission proceedings because the claims in Khadr’s habeas petition can be raised during the commission or in the appeals process.

Judge John Bates still allowed Khadr to amend his petition, finding that it was not “futile” as the government alleged, because the stay may be lifted after Khadr concludes his appeals from the commission. Khadr argued that the intent for district courts to hear his habeas petition despite the ongoing commission was demonstrated by the differences in the military commission acts of 2006 and 2009, in which § 950j(b) of the 2006 act, providing for district court review only after the conclusion of the military commission, was removed. Bates rejected this. Additionally, the court maintained the stay on the petition despite Khadr’s argument that the amended petition fell under one of the exceptions to Councilman, arguing that the military lacked personal jurisdiction over him because he was a juvenile at the time of his capture and that the military commission system established by Congress was unconstitutional. Bates rejected both arguments, finding that the jurisdictional argument did not fall with the Councilman exceptions, and cited the Supreme Court case of Hamdan v. Rumsfeld in upholding the constitutionality of the military commissions.

Federal Judge grants Yemeni Guantanamo detainee’s habeas petition
[JURIST] A judge for the US District Court for the District of Columbia on Wednesday granted the habeas corpus petition of Yemeni citizen Adnan Farhan Abdul Latif and ordered his immediate release from the Guantanamo Bay detention facility. Latif, who has been in custody for over eight years, contends that he was in Pakistan for medical treatment when he was arrested and turned over to US forces. According to a lawyer for Latif, he suffers from mental illness and depression, and he remains suicidal. The judge ordered the Obama administration to take all necessary steps to ensure that Latif is released. In a separate decision announced Wednesday, a federal judge denied the habeas petition of Guantanamo detainee Abdul-Rahman Sulayman, ruling that he can continue to be held in custody indefinitely. Sulayman has also been in custody for over eight years. The rulings in both cases remain under seal as they are examined for possible security issues. The US Department of Justice (DOJ) is considering whether to appeal the ruling in Latif’s case.

Transfers

Spain and Latvia accept two Guantanamo detainees
“The United States coordinated with the governments of Spain and Latvia to ensure the transfers took place under appropriate security measures and will remain in close consultation with both governments regarding these individuals,” the Pentagon said in a statement. The identities of the two detainees were “withheld for privacy reasons at the request of the receiving governments,” the Pentagon said.

In announcing the transfer, the Spanish Interior Ministry  said that the man, an Afghan national, arrived in Spain on Wednesday and will be given residency and work permits. The ministry also noted that the former-detainee has no pending charges of terrorism against him in any jurisdiction. Spanish Foreign Minister Miguel Angel Moratinos indicated that Spain was willing to increase the number of detainees accepted in order to help remedy what it sees as an unacceptable situation at the detention facility.

Opinions

Michael B. Mukaseki: “Guantanamo is no venue for a civilian jury trial”
The Washington Post has an opinion piece by former Attorney General and judge Michael Mukasey, arguing that there were fatal flaws in the recent suggestion that Congress should designate Guantanamo Bay part of an existing federal district court or as a separate federal district court so that those accused of the Sept. 11, 2001, attacks can be tried there.

Quote:

A civilian trial would not “uphold the rule of law,” nor would avoiding a military commission deny the defendants their self-styled status as “warriors.” The civilized world has tried over several hundred years to establish rules of warfare so that those who wear uniforms, follow a recognized chain of command, carry their arms openly and do not target civilians are treated as prisoners of war when captured. Those who follow none of these rules are treated as war criminals, not as ordinary defendants accused of ordinary crimes and entitled to far more robust protection than war criminals. Congress recognized this when it passed the 2006 Military Commissions Act to deal with Islamist terrorism; disregarding that statute is lawless. Moreover, giving those who violate the laws of war more protection than is accorded those who follow such rules turns those rules and their underlying morality on their head.

Holder: still no decision on trial venue for accused 9/11 conspirators

US Attorney General Eric Holder said during an interview  Sunday on CBS’s Face the Nation that no final decision has been reached as to whether accused 9/11 conspirators, such as Khalid Sheikh Mohammed, will be tried in civilian court or by military tribunal.

Holder reiterated his support for holding the trials in civilian courts saying that the criminal justice system has been proven an effective location for terrorism trials and that excluding civilian courts as a possible tool in fighting terrorism would ultimately weaken the nation’s security.

One limitation on military tribunals Holder cited is the ability to sentence a person to death who has pleaded guilty. He told CBS’ “Face the Nation” that it’s possible to impose the death penalty in a civilian setting for someone who pleads guilty. But he says there’s far less legal certainty about that possibility in a military setting.

Guantanamo update

JUDICIAL DECISIONS

Khadr decision to fire lawyers throws hearings into doubt
The Globe and Mail reports that the fate of Omar Khadr’s military trial, and the evidence the prosecution can present, will be up to Omar Khadr and his judge.

Military Justice Colonel Patrick Parrish will call on the Canadian charged with terrorism to confirm a statement he submitted Wednesday firing the American lawyers who have been conducting his defence at the military tribunal here. Col. Parrish is also expected to ask Mr. Khadr whether he wants to proceed with his defence team’s attempt to suppress evidence they have spent months arguing was elicited through torture.

If that motion dies, it could mean attempts to hold back that testimony, formally argued in several days of hearings earlier this year and the subject of multiple assessments of Mr. Khadr’s psychological state, are over. Col. Parrish could decide to weigh what’s been presented to him so far, and disallow evidence he deems inadmissible.

Mr. Khadr “thinks it’s an unfair process and he doesn’t want to play any more,” says Nathan Whitling, one of Mr. Khadr’s Edmonton-based lawyers. Mr. Whitling and Dennis Edney continue to represent Mr. Khadr in Canada, and have argued numerous times for Ottawa to repatriate him.

Mr. Khadr’s written submission Wednesday firing his American legal team wasn’t the first time his defence lawyers have been dismissed: Barry Coburn and Kobie Flowers are among about a dozen people who have represented the Toronto-born Mr. Khadr since he was first charged.

Guantanamo detainee pleads guilty before military tribunal

[JURIST] A Sudanese terrorism suspect held at Guantanamo Bay pleaded guilty on Wednesday 7 July before a military judge to charges of conspiracy and providing material support for terrorism. Ibrahim Ahmed Mahmoud al Qosi admitted that he supported al Qaeda since 1996 in their hostilities against the US, acting as the terrorist group’s cook and accountant in the 1990s and as a bodyguard for Osama bin Laden in later years. He was also accused of being Bin Laden’s driver and helping him escape to the mountains of Afghanistan after the US invasion in 2001. Al Qosi’s sentencing is scheduled to take place on August 9 before a panel of military officers, and he could face a sentence of up to life in prison or could be sentenced to time served.

Qosi was tried under revised rules introduced by the Obama administration to address criticisms of the commission system. But human rights groups said the case was an example of how the commission is fundamentally flawed and plagued by delays compared to federal criminal courts.

“This is not a victory for the military commission system,” Daphne Eviatar of Human Rights First said in a statement. “In fact Mr. al-Qosi’s case is a textbook example of the inability of the military commission system — now in its third incarnation — to achieve swift justice. The case has dragged on for more than six years without a trial,” she said.

Federal appeals court denies Guantanamo detainee habeas petition
[JURIST] The US Court of Appeals for the District of Columbia Circuit  released a partially redacted opinion Wednesday 7 July denying habeas corpus relief to Guantanamo Bay detainee Fawzi Khalid Abdullah Fahad Al Odah. In its opinion, the court affirmed the district court’s ruling that there was sufficient evidence against al Odah for him to be considered “part of” al Qaeda and Taliban forces. Lawyers for al Odah attempted to argue that the individual pieces of evidence against him could be explained without reaching the conclusion that he was a member of al Qaeda. The appeals court disagreed, holding that when viewing the evidence in its entirety, there was “strong support” for the district court’s findings.

Al Odah’s case, pending since 2002, was a companion case to the 2008 Supreme Court ruling in Boumediene v. Bush, and to the 2004 Supreme Court decision of Rasul v. Bush.

Pentagon ends Guantanamo reporters’ ban
The New York Times reports that the Pentagon on Friday 9 July reversed itself and agreed to allow two reporters it had banned from Guantánamo Bay back onto the naval base after  a coalition of news organizations complained that the ban was unconstitutional.

But the reinstatement of the reporters, Carol Rosenberg of The Miami Herald and Michelle Shephard of The Toronto Star, was conditional and left many of the issues that have strained relations between the news media and the Pentagon unresolved, likely prefacing a longer fight over the right of journalists to cover the secretive military proceedings at Guantánamo Bay. The fates of two other reporters who were also banned in May was unknown.

Ms. Rosenberg and Ms. Shephard had to acknowledge in writing to the Defense Department that they understood that they had violated military rules by disclosing the identity of an Army interrogator, even though his name was already publicly known. The reporters also had to reaffirm that they would abide by the rules the Pentagon sets for reporters covering the Guantánamo military commissions.

Read a comment of the decision on EMPTYWHEEL.

Federal judge orders Yemeni Guantanamo detainee freed
The Miami Herald reports that a federal judge has ordered the release of another Yemeni captive at Guantánamo, the 37th time a war on terror captive in southeast Cuba has won his unlawful detention suit against the U.S. government.

Judge Paul Friedman’s order in the case of Hussein Almerfedi at the U.S. District Court in Washington, D.C., instructs the Obama administration to “take all necessary and appropriate steps to facilitate the release of petitioner forthwith.”

His reasoning on why the U.S. had unlawfully detained Almerfedi, 33, held at Guantánamo since May 2003, was still under seal. But as far back as 2005, Almerfedi had argued before a military panel at the Navy base in southeast Cuba that he fled his native Aden, Yemen, with plans to settle in Europe, not to join a jihad. Instead, he said, his journey took him to Pakistan and then Tehran where Iranian forces turned him over to Afghan forces, who in turn handed over to the United States.

Justice Department attorneys argued that Almerfedi was a former Aden-based salesman of the narcotics plant called Qat who came to support al Qaeda “and is thus an enemy of the United States.” The U.S. also said that Almerfedi was subjected to a lie detector test and was found to be deceptive. Almerfedi told a military panel at Guantánamo in 2005 that he was polygraphed in Bagram, Afghanistan, on the eve of his transfer to Cuba.

TRANSFERS

Germany to take two Guantanamo detainees
After months of negotiations with the US Government, Germany has agreed to take in two inmates cleared for release from the U.S. prison camps at Guantánamo Bay. The United States government first asked Germany take in three inmates of Palestinian and Syrian origin in 2009, German officials said Wednesday 7 July. Germany has agreed to take in two of three men.

German Interior Minister Thomas de Maiziere said the two prisoners have been in Guantánamo for nine years, but they do not face criminal charges. De Maiziere stressed that Germany will turn down any future requests to put up Guantánamo Bay detainees. De Maiziere came under fire in April when he announced that he would consider the U.S. request. Several conservative politicians insisted that the United States should take responsibility for the inmates, who could end up committing crimes in Germany.

Six Algerian detainees ask to stay in Guantanamo
On Thursday 8 July a federal appeals court overturned a lower court’s ruling that had barred the government from repatriating one of six Algerians detained at Guantanamo. The detainee had asserted that if he is returned, the Algerian government will torture him or he will be targeted by terrorist groups who will kill him if he refuses to join.

U.S. District Judge Gladys Kessler had ruled that the claims of Farhi Saeed bin Mohammed, 49, who has been held at Guantanamo Bay for more than eight years, “are of great concern.” She said the court must ensure that there is “real substance” behind any diplomatic assurances obtained by the administration that detainees repatriated to Algeria will be treated humanely.

A panel of the U.S. Court of Appeals for the District of Columbia overturned Kessler late Thursday, granting the government’s emergency appeal. Much of the litigation remains under seal, but the government argues that legal precedent makes clear the executive branch’s prerogative to decide where to transfer a detainee.

Similarly, the administration has been preparing to repatriate one of the six Algerians. But lawyers for Aziz Abdul Naji, 35, who has been held at Guantanamo for more than eight years, said he is “adamantly opposed to going back.” If officials go ahead, it would be the first involuntary transfer out of Guantanamo Bay by the Obama administration.

Read “Why the Guantanamo Transfer Litigation Matters” by Steve Vladeck on BALKINIZATION.

Three ex-Guantanamo detainees in Slovakia embark on a hunger strike

Andy Worthington reports that on Thursday 24 June, Branislav Tichý, the director of Amnesty International Slovensko, told the press that three former Guantánamo prisoners, who had been released in Slovakia on January 25 this year, had embarked on a hunger strike. According to the Slovak Spectator, Tichý explained that they were “protesting bad conditions and the treatment they are receiving from Slovak authorities in a detention facility in Medved’ov in Trnava Region.”

On 2 July IPS Adil Al-Gazzar, one of three former Guantanamo Bay prisoners on hunger strike at a detention facility in Medvedov, western Slovakia, said to IPS: “I am feeling weak and sick and getting worse. But I am not going to stop until I get a resolution to my problems, and I will go on with my hunger strike until I die if I must.” The strike entered its tenth day Friday.

Egyptian Al-Gazzar, Azerbaizani Poolad Tsiradz and Tunisian Rafik Al-Hami arrived in Slovakia in January after Slovak authorities agreed to take the detainees under an EU-U.S. agreement. All three were held for years at the prison. They claim they had been wrongly interned, and deny being terrorists.

But Al-Gazzar, a former Egyptian soldier who lost a leg after an attack by U.S. forces in Afghanistan in November 2001 when he was a volunteer for the Red Crescent in the country, said that since arriving all three have been denied basic freedoms on a scale worse than anything they experienced at Guantanamo.

There have also been claims that the trio were misled by Slovak authorities about how long they would have to stay at a holding facility when they arrived in Slovakia. Al-Gazzar told a local journalist that the men were not told they would be held in detention but that they would be free with some restrictions. When they came to Slovakia, he said, they were told they had to stay six months in an asylum facility. Now they have been told they face another half a year in a different facility.

Law-of-war murder definition and its repercussion on the legality of the use of drones

The Vancouver Sun reports that senior officials in the Obama administration sought, without success, to stop and change the prosecution of Omar Khadr, recognizing that such a prosecution rests on a false legal premise.

Insiders have learnt that the officials sought to strip a new commissions manual of a law-of-war murder definition, which would have likely scuttled the war crimes murder charge against Khadr, resulting from the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan.

The failed bid to change part of law-of-war murder rule — as well as separate arguments insiders say took place over other rules — illustrates how the commissions remain a point of division in the Obama administration.

It is reported that the pretext for demanding the draft-rule edit would center on concern about defending the legitimacy of  CIA drone attacks on terror suspects in Pakistan, one insider confided.

According to this official, it was feared that aspects of the commission manual’s “comment” in the section titled Murder in Violation of the Law of War could be applied to the attacks. Key among the contested phrasing is a statement that says murder and some other offences rise to the level of war crimes if committed “while the accused did not meet the requirements of privileged belligerency” — which principally covers regular war law-abiding combatants.

Among those leading the charge against the contested murder segment was Harold Koh, Obama-nominated legal adviser of the State Department. Quite interestingly, Koh previously attempted to justify the use of drones for targeted killings, by saying that

The rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

Scott Horton recently commented on Koh’s argument on the use of drones, by noting that “Koh had failed to address an obvious legal issue—that the drones were being operated by civilian contractors, not uniformed military personnel who are privileged to used lethal force under the law of war.”. Therefore, Horton argues that the prosecution of Khadr as a violation of the law of war could boomerang on the US on the issue of the use of drones for targeted killings

The drone warfare raises the same issue that the Khadr prosecution does: if the operators of these systems are not privileged to use lethal force, are they committing a crime under the law of war when they do so? The language adopted in the manual for military commissions argues that they are, but the position taken by the State Department to justify the use of drones assumes the opposite. These positions are difficult to reconcile.