Can a freed Guantánamo war criminal appeal his conviction from the global battlefield?
That is essentially the question posed by a Pentagon appeals panel being asked to upend the war crimes conviction of a former Sudanese captive named Ibrahim al Qosi, 56.
In July 2010, Qosi pleaded guilty at Guantánamo to foot soldier charges for his serving as a cook, logistician and occasional driver for al-Qaida in Afghanistan. He was captured in Pakistan as a suspected bodyguard of Osama bin Laden and sent to Camp X-Ray in January 2002.
The problem is, Qosi has emerged as a poster child for the problem of prisoners who take up arms after leaving Guantánamo, the prison President George W. Bush had set up in response to the Sept. 11 attacks. After Qosi finished his sentence in 2012, the Obama administration sent him home to a supposedly peaceful life in Sudan, only to see him emerge as a spiritual leader of sorts for al-Qaida of the Arabian Peninsula.
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A 16-page appeal filed by two U.S. Navy lawyers makes no mention of his whereabouts. Instead it challenges the integrity of the war court created by Bush and reformed by Congress and President Barack Obama. It argues that the charges he pleaded guilty to — providing material support for terror and conspiring to do so — weren’t war crimes, after all.
A federal appeals court ruled in 2014 that, while providing material support to terror is a federal crime, it’s not a violation of the Law of War and not punishable at a military commission, the war court.
The appeal also makes an Equal Protection claim, that the Guantánamo court is itself illegitimate because it was created to charge only foreigners. U.S. citizens cannot be tried there. Attorneys Mary McCormick and Suzanne Lachelier, senior lawyers in the Navy Reserve, call military commissions an unprecedented, segregated “inferior criminal justice system” that “bears no rational relationship to any governmental interest the Constitution condones.”
But before the U.S. Court of Military Commission Review considers the arguments the judges have asked the defense lawyers to demonstrate that Qosi actually wants to appeal. The judge also point to the possibility that Qosi’s “post-release participation in hostilities against the United States or its coalition partners” may influence the appeal.
The war court prosecutor calls him an “unprivileged enemy belligerent.” It offers a Defense Intelligence Agency profile that cites his “pro-jihadi writings” published in al-Qaida and its affiliate’s publication and assesses Qosi has “likely reengaged in terrorist associated activities.”
Wrong questions, says Marine Brig. Gen. John Baker, the chief defense counsel, who assigned the two senior Navy lawyers to handle the Qosi appeal. They get the lawyers and the appeal, the general said, because the Military Commissions Act of 2009 gives every convict an automatic appeal unless he explicitly waives the right. And the document Qosi signed as part of his guilty plea doesn’t constitute a valid waiver, he said.
“We are a nation of laws. Our law says, if you are in our system and you haven’t waived your appeal, you get it,” he said. “Congress could have said, if you picked up arms, you don’t. But they didn’t say that.”
It was suggested to Baker that it might appear outrageous to people that the Pentagon was paying U.S. military attorneys to defend a man who not only pleaded guilty to working for al-Qaida but may have returned to the fight. Would it not be easier to simply ignore the case? The convict is, after all, unavailable.
“People get the process that they are due,” said Baker, reminding that the United States was founded by people who fled “the Star Chamber” of Europe. “This whole system is insane. You’re trying to yet again create a special exception so we can’t follow the due process that they have due them.”
In their brief, the appellate lawyers argue Qosi’s foot-soldier prosecution was motivated by “irrational animus.” They invoke a Sept. 28, 2006 remark by Texas Republican Sen. John Cornyn from the Congressional Record that Guantánamo detainees do “not deserve the same panoply of rights reserved for American citizens in our legal system.”
But by the time Congress with Obama reformed the Military Commissions Act, says Baker, the law mandated automatic appeal. “I presume the point of that is that this is such a new system that it needs appellate oversight,” the general added.
University of Texas law professor Stephen Vladeck likewise criticized the appeals panel for raising, on its own, the question of Qosi’s recidivism as a prelude to considering his conviction. “There is just no legal reason why al Qosi’s post-release activities can or should bear upon the legal questions that his post-conviction appeal present,” he wrote in the national security blog Lawfare.
Baker said the Pentagon appeals panel — made up of military and civilian appointees — have a duty to consider the Qosi case. And if they won’t, he said, the lawyers would likely got to the federal Circuit, the next appellate level created by Congress for Guantánamo cases.
“If we’re not going to apply the rules because we think he’s a bad actor,” Baker said, “what’s the next level of badness? He didn’t pay a parking ticket? Once you start going down the slippery slope, then we’re providing exceptions to statutes based on whether we like somebody or not.”
One thing, however, could stop the appeal. Qosi’s death.
U.S. air strikes have killed other released Guantánamo captives, one as recently as March in what the Pentagon described as “precision strikes” on al-Qaida of the Arabian Peninsula.
Defense lawyers believe his conviction would be vacated — he’d be no longer a war criminal — under the doctrine of “abatement ab initio” that essentially automatically dismisses the charges of a convict who dies with a pending appeal. That’s the way it works in U.S. military justice, Baker said. The result should be the same for a former prisoner who’s “drone-striked to death,” the general said, as “a kid on appellate leave who crashes his motorcycle.”
That’s essentially what happened when former New England Patriots player Aaron Hernandez hanged himself in a Massachusetts jail while his lawyers were appealing his murder conviction. He died an innocent man, the chief legal counsel for the Massachusetts Bar Association told the Boston Globe.