In an alleged victory for the Military Commission trial system for terror suspects at Guantánamo, revived by President Obama last year despite the fact that he suspended the Commissions on his first day in office, a Sudanese prisoner, Ibrahim al-Qosi, accepted a plea bargain yesterday, and made a guilty plea on one count of conspiracy and one count of providing material support to terrorism.
In the six years since al-Qosi, now 50 years old, was charged in the first incarnation of the Commissions (which were ruled illegal by the Supreme Court in June 2006), he has been accused of serving as the accountant for a company run by Osama bin Laden in Sudan from 1992 onwards, of visiting Chechnya to fight in 1995, with bin Laden’s support and permission, of serving as a bodyguard, cook and driver for bin Laden in Afghanistan from 1996 onwards, and of fighting in Afghanistan as part of a mortar crew. He was seized in December 2001, crossing the border from Afghanistan to Pakistan.
Charged again in February 2008, and again last November, he had, until yesterday, taken part in several inconclusive hearings, and had, for the most part, watched as the government largely failed to secure any legitimacy for the Commissions, winning only three dubious victories: David Hicks (via a plea deal) in March 2007, Salim Hamdan after a trial in August 2008, and Ali Hamza al-Bahlul, after a one-sided trial in which he refused to mount a defense, in November 2008.
At his hearing on Wednesday, the final picture that emerged, as the Miami Herald explained, was of a man who left Sudan to follow bin Laden to Afghanistan, taking his wife and children with him, and who “admitted that his work for al-Qaeda was his family’s only means of support.” He also admitted that he “went to Pakistan for al-Qaeda and met the Taliban’s top leader, Mullah Omar, who used to stop by the terrorist compound on holidays,” that he “drove a caravan of vans when bin Laden and his associates went to Kandahar, where married and single terrorists were separated into groups in two-room apartments,” and where he “cooked for the bachelors,” and that he “also spent more than a year on the front lines, getting bombed on the Pakistan border and coming under fire from US helicopters in Jalalabad.”
During the hearing, he told the judge, Air Force Lt. Col. Nancy Paul, that “he acknowledged his offenses and he understood his plea deal,” as the Associated Press explained, although he “did not speak at length.” The details of the deal, which have spared him from facing additional charges at a trial, were not disclosed, although rumors of a deal have circulated for several months, and it was understood that a plea deal would also prevent him from receiving a life sentence, as may have happened had his case proceeded to trial. The Miami Herald noted that the Dubai-based Al-Arabiya satellite news network, “[c]iting two anonymous sources who read the plea agreement,” reported that he “agreed to a maximum of two more years in prison before he is sent home to Sudan.”
A panel of military officers is scheduled to deliver al-Qosi’s sentence on August 9. Navy Capt. David Iglesias, a spokesman for the Prosecution Office of the Military Commissions, explained that “[m]ilitary legal authorities can reject the panel’s sentencing decision if it exceeds what was agreed upon as part of the plea deal.” He “declined to say how much more time, if any, the prisoner could serve under the agreement,” but stated, “Both sides reached an agreement that they felt was fair and it would be against the interests of justice not to accept it.”
Iglesias also said that al-Qosi “admitted to knowing [bin Laden] personally, helping him and was willing to follow him around. He was somewhere between a foot soldier and less than a general. We are not talking about robbing a 7-Eleven in Hialeah. We are talking about war crimes.” This analysis, which was perhaps acceptable until it came to Iglesias’ conclusion about “war crimes,” was strongly challenged by critics who have opposed the Commissions throughout their generally dismal eight-year existence, and who were dismayed when President Obama decided to revive them last May, conveniently forgetting how much he had opposed them as a Senator in 2006 and 2007.
Stacy Sullivan, a senior counter-terrorism advisor for Human Rights Watch, said, “He’s a cook who served as a driver and possibly a bodyguard, Can you imagine if, during Nuremberg, they prosecuted cooks and drivers? It didn’t happen. They consider the fourth conviction in eight years a victory?” She also noted, as the Miami Herald explained, that al-Qosi’s “accusations of abuse, including that he was wrapped in an Israeli flag and subjected to loud music, was not mentioned in court,” and nor was there any mention of claims made in 2005 by Lt. Col. Sharon Shaffer, who was assigned to represent al-Qosi at the time, who ”characterized his treatment as possibly torture but certainly inhumane treatment; he was held in stress positions for protracted periods, subjected to military dogs and sexually humiliated.”
Adding to the criticism, Daphne Eviatar, a senior associate in Human Rights First’s Law and Security Program, stated, “This is not a victory for the military commission system. In fact Mr. al Qosi’s case is a textbook example of the inability of the military commission system … to achieve swift justice. The case has dragged on for more than six years without a trial.”
Given how shambolic al-Qosi’s last hearing in December was, it is unsurprising that the administration chose to pursue a plea deal rather than a full-blown trial. On that occasion, as I explained at the time, Lt. Col. Paul resisted the prosecution’s attempts to push back the start date of al-Qosi’s alleged crimes from 1996 to 1992, noting that:
although the rules regarding proposed changes in the new Military Commissions Act appeared to provide no guidance on this point, the relevant passages in the 2006 Act, which were drawn substantially from passages in the US military’s Rules for Court-Martial, were clear that the government’s request constituted a “major change” to the charges, and that “major changes may not be made over the objection of the accused unless the charges are withdrawn and re-referred.”
She added that the proposed amendments were “troubling in nature as the four-year extension of time and addition of overt acts dramatically changes the nature of the offense alleged,” noted that the request disrupted trial preparation which “has been ongoing for almost 2 years,” and, in conclusion, denied the request because the changes “are essentially new and additional offenses and contain substantial matters not fairly included in those previously referred,” and, additionally, because they bring “unfair surprise to the Accused.” In the courtroom, as Devon Chaffee [an observer for Human Rights First] explained, Lt. Col. Paul made a point of adding that, five years after the government first filed charges against al-Qosi, the defense still “doesn’t even know what the charges are going to look like.”
With the plea deal, further embarrassments like these will presumably be avoided (in al-Qosi’s case at least), as will legal challenges to the charges themselves — of conspiracy and material support — which have both been subjected to serious criticism, leading to doubts about whether either charge will stand up on appeal.
In Hamdan v. Rumsfeld, the case in which the Supreme Court shut down the Commissions’ first incarnation, Justice John Paul Stevens, in an opinion in which he was joined by three other justices, made a point of mentioning that “conspiracy” has not traditionally been considered a war crime. Moreover, on the charges of material support, which are currently being appealed in the cases of Salim Hamdan and Ali Hamza al-Bahlul, senior administration officials proposed to Congress last summer, as the Commissions were being revived with lawmakers’ support, that the charge of material support for terrorism should be dropped. As I explained last December:
Assistant Attorney General David Kris conceded (PDF), in Congressional testimony in July, that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.” The Justice Department’s position was echoed by the Pentagon, where General Counsel Jeh Johnson also accepted in July (PDF) that “material support is not a viable offense to be charged before a military commission because it is not a law of war offense.”
The irony, as I also noted at the time, was “not only that David Kris and Jeh Johnson failed to persuade Congress to drop the charge of material support for terrorism, but also that Congress ignored Kris’ additional suggestion that ‘material support charges could be pursued in federal courts where feasible.’”
With this in mind, it may be worth watching out for more plea bargains in the Military Commissions, while everyone who should know better — or who has influence but no insight — continues to ignore the fact that the Commissions should never have been revived, and that any trials should take place in federal courts.
Note: The courtroom sketch above, by Janet Hamlin, is courtesy of Janet Hamlin Illustration.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.
See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009), 9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009), Chaos and Confusion: The Return of the Military Commissions (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Lawyers Appeal Guantánamo Trial Convictions (February 2010), When Rhetoric Trumps Good Sense: The GOP’s Counter-Productive Call for Military Commissions (March 2010), David Frakt’s Damning Verdict on the New Military Commissions Manual (May 2010), Prosecuting a Tortured Child: Obama’s Guantánamo Legacy (May 2010), The Torture of Omar Khadr, a Child in Bagram and Guantánamo (May 2010).
[...] This post was mentioned on Twitter by Andy Worthington, Ayman Hossam Fadel. Ayman Hossam Fadel said: #Sudanese Cook Accepts Plea Deal at #Gitmo miscarriage of #justice http://bit.ly/d3nqoW #GWOT #HumanRights #Torture [...]
Here are a few comments from Common Dreams:
Thanks again Andy for sorting this out for us. sometimes – usually – when i read your reviews of the heinous crimes perpetrated by these worst of the worst terrible scary guys, i struggle in vain to find anything they did wrong. unless of course one chooses to accept that novel innovation in jurisprudence that whatever anybody does against the u.s., or if someone hangs out with other people who wish us harm, they need to go to tribunals and locked away for a good long time.
hope this dude can get out, and good luck to the other guys too.
The fact that Obama went through a charade of asking Congress for money to shut down Guantanamo, knowing that they would not give him the money, speaks loads. The fact that he didn’t charge into the DOD and Justice Dep’t with a sharp hatchet and fire any and all who had been part of this propaganda circus speaks loads. The fact that over 600 of those prisoners have been released because they had nothing to do with Al Qaida or the Taliban speaks loads. The fact that Col Larry Wilkerson estimates that only about 25 of the prisoners were really dangerous also speaks loads. President Obama, it’s now your mess because you didn’t make some simple decisions.
Millions of lives lost and billions of dollars spent and we get the cook. What a f’n joke. The US sucks.
How is this not a witchhunt?
8 years in prison for being a cook to a group of people who saw themselves as military opponents to US support for oppression of muslims, undoubtedly happening (cf. e.g. Palestine/Gaza). His “crime” was “knowing [bin Laden] personally, helping him and was willing to follow him around.”
How is this not a witchhunt – guilty if torture makes you admit that you spoke with the devil?
Finally a victorious blow to Al Qaeda!
Someone else will have to cook OBL’s Shwarma from now on!!
Let Freedom ring!
[...] 10, it was reported that Ibrahim al-Qosi, a 50-year old Sudanese prisoner in Guantánamo who accepted a plea deal in his trial by Military Commission last July, had the 14-year sentence that was subsequently [...]
[...] compound associated with al-Qaeda. Put forward for a trial by military commission at Guantánamo, he agreed to a plea deal in July 2010, under the terms of which he was to serve just two more years before [...]
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