Obama Administration Accepts Its First Military Commission Guilty Plea

Cully Stimson /

GUANTANAMO BAY, CUBA – Ibrahim al Qosi, a Sudanese-born al-Qaeda terrorist, held at Guantanamo Bay since early 2002, pleaded guilty Wednesday at his military commission to both charges—conspiracy to provide material support for terrorism and material support for terrorism. His much-anticipated plea caps an eight-year saga spanning two separate Administrations and represents the fourth conviction for the on-again-off-again military commissions and the first such conviction in the Obama Administration.

Flanked by his three lawyers (two military, one lead civilian counsel), al Qosi arrived in the Guantanamo Bay main courthouse dressed in a white knitted cap and white prison garb (worn by all compliant detainees) and sported a moderate-length grey beard. Approximately 5’8” and slim, al Qosi (who has 20 AKAs) wore glasses throughout the proceeding, which lasted almost four hours.

The military judge, sitting without a jury (called “members”), opened the court and announced that there was a pre-trial agreement (PTA) in the case and that she had instructed the members not to read the newspapers about the plea. We learned at the end of the proceeding that the sentencing would take place on August 9, 2010.

A PTA in military court is essentially a contract between the accused and the convening authority (the entity that owns commissions). In exchange for pleading guilty and waiving certain trial rights, the accused then gets the benefit of the pre-trial deal. Typically, the PTA has a provision that places a maximum cap on confinement.

The military judge (or members, if the accused chooses members for sentencing) does not know what that cap is until after she announces her sentence. The accused gets the lesser of the two sentences. For example, if the cap per the PTA is 10 years but the members sentence him to eight years, then the accused gets eight years. On the other hand, if the cap is 10 years but the members sentence him to 25 years, he gets the 10 years.

Here, since the sentencing hearing won’t take place until August, we don’t know the material terms of his PTA, including any possible cap on confinement, if one exists at all in this case.

In typical courts-martial, during a guilty plea, the accused is placed under oath and then engages in an extended conversation with the judge about each and every fact that supports each and every element to the crimes to which he is pleading guilty. In the alternative, the accused may enter into a stipulation of fact to accomplish the same goal.

In this case, the accused, his counsel, and the government entered into a Stipulation of Fact concerning the charges. And although that Stipulation of Fact was not made available to the public (for fear it might unduly influence the members for the August sentencing hearing), the military judge did go over key facts contained within the 26-paragraph narrative with the accused in open court.

Al Qosi told the judge, through his stipulation and in response to the judge’s questions, that he provided material support to al-Qaeda from 1996 to December 2001. He provided logistical support, including acting as a driver and cook for Osama bin Laden (OBL). In 1996, he met with and spoke to OBL and eventually provided transportation for OBL. In support of al-Qaeda, he fought the Chechens, utilizing an M-43 mortar. Even after the United States embassies in Africa were bombed in 1998, the USS Cole was bombed, and al-Qaeda took credit, al Qosi continued to provide material support for the terrorist organization. He had no knowledge of the planning or part in the embassy bombings, the attack on the Cole, or of the 9/11 attacks. Nevertheless, he continued to materially support al-Qaeda both before and after 9/11.

In the modern, air-conditioned court room perched high on a hill overlooking the placid waters of Guantanamo Bay, the judge accepted al Qosi’s pleas and discussed the meaning and effect of his PTA. There were several interesting specially negotiated provisions within the PTA that merit mentioning.

Under al Qosi’s PTA, the government may dispose of any physical evidence after the plea is accepted, including but not limited to any DNA evidence. The accused agreed not to request any live testimony at his sentencing hearing from any current detainee at Gitmo.

Al Qosi agreed not to sue any former or current government official, in either his official or personal capacity, for any matter related to his capture, detention, or prosecution, and he agreed to drop any pending lawsuits of that sort. He agreed to direct his attorneys, after his sentence is announced, to drop his current petition for writ of habeas corpus pending in the U.S. District Court in Washington, D.C. Whether he can file a later petition for writ of habeas corpus seems to be an open question, given the language of the provisions discussed in open court.

Furthermore, he agreed to waive the ability to argue for confinement credit for time served in custody as an enemy combatant. This is in marked contrast to the three prior military commissions’ cases in the Bush Administration, where the defense argued for, and often got, some credit for time already detained as an enemy combatant.
After the judge explained the meaning and effect of the PTA with al Qosi, she adjourned the proceedings until August 9 for the sentencing case. At that time, the government will put on its case in aggravation, if it has one, and then the defense will be free to put on its case in extenuation and mitigation. Per his PTA, al Qosi may introduce written statements from other Guantanamo detainees and any other person he wishes. Additionally, he agreed not to ask the government to pay for more than one witness to be flown in to the island to testify on his behalf, but he is free to call other witnesses on his behalf off the island as long as the government does not have to pay for their travel. He may call witnesses via video teleconference, and the government agreed to pay for no more than one defense expert to testify at his sentencing hearing.

Like all military defendants, al Qosi may make an unsworn statement to the members, and he may not be cross-examined by the prosecution if he so chooses.
Many media outlets covered the proceedings, including the Miami Herald, Fox News, ABC, and foreign press. Representatives from non-governmental organizations present at the plea included the ACLU, Amnesty International, Human Rights First, Human Rights Watch, and The Heritage Foundation.

The plea was a historic event, as it represents the fourth conviction in the military commissions process and the first such conviction under the Obama Administration. To date, there are two other military commissions cases currently set for proceedings on the docket.

Whether the plea today signals the beginning of a policy shift away from an expressed preference for federal court and a more towards military commissions remains to be seen. Only time will tell.