First war-court hearing on U.S. soil stops before it even gets started

A hearing to determine the status of a freed al-Qaida war criminal stalled Wednesday over a question of which Pentagon-paid defense lawyers can defend the Sudanese man who emerged as an al-Qaida affiliate spiritual leader several years after his release from Guantánamo.

Army Col. James L. Pohl, the chief of the war-court judiciary, called the military-commission session to tackle a narrow question posed by a Pentagon appeals court: Is Ibrahim al Qosi, 57, an unprivileged enemy belligerent?

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The U.S. Court of Military Commission Review, or CMCR, wants an answer before it decides whether to overturn his 2010 Guantánamo guilty plea to providing material support for terror as an al-Qaida foot soldier.

But with the al-Qaida convict half a world away, perhaps in Yemen having left his homeland of Sudan, the first post- 9/11 military commission hearing outside of Camp Justice at the U.S. Navy base in Cuba and on U.S. soil focused on who can represent him. New attorneys assigned by the Marine general who runs the war-court defense organization? Or his original, then Navy lawyer who argues she has a conflict of interest?

Prosecutors said they had four unnamed witnesses to provide Pohl with facts, presumably about the whereabouts and activities of the man who emerged on a 2015 video preaching jihad against America as a leader of the Yemen-based al-Qaida in the Arabian Peninsula, AQAP.

But first prosecutors asked the judge to order lawyer Suzanne Lachelier, who as a Navy commander represented Qosi at his Guantánamo guilty plea, to represent him in the current fact-finding hearing. Lachelier, now a civilian, is an attorney of record on his appeal and also defends an alleged 9/11 plotter in the death-penalty case. She told Pohl, who is also presiding in the Sept. 11 conspiracy trial, she has a conflict and cannot represent Qosi on the status question.

She notified the judge of the conflict in a court filing.

Instead, three other Pentagon attorneys are assigned to represent Qosi. One of them, Navy Capt. Brent Filbert, said in court the trio had neither met nor had any contact with the man whose association with Osama bin Laden dates to the 1990s when Qosi was a bookkeeper in Khartoum.

Pohl agreed that, in court-martial practice, defense lawyers get to appeal a soldier’s conviction without their explicit consent, or if the convicted trooper can’t be located. But the Pentagon appeals panel, the CMCR, tasked Pohl with holding a fact-finding hearing on Qosi’s at-large status in an order that Pohl read as suggesting Lachelier should represent Qosi — but for her notification to the court of a conflict.

So Pohl stopped the hearing before it ever started to ask the review panel what to do. War-court rules mirror military court-martial practice in some instances. But they also draw from federal civilian-court law, creating a conundrum not for the first time about the way forward at the war court that President George W. Bush created in the aftermath of the Sept. 11, 2001 attacks.

RELATED: Freed Guantánamo convict back in the fight. Pentagon lawyers want to clear his name.

“The reality of this dilemma is that we’re in new territory. This has never been done,” said attorney Michael Schwartz, also representing Qosi at the status hearing. He argued that, despite Qosi’s absence and not knowing his lawyers, the man is entitled to have his conviction of “crimes that aren’t crimes” overturned. A civilian court ruled after Qosi pleaded guilty that, while providing material support for terrorism is a federal crime, it is not a Law of War violation and therefore can’t be charged at a military commission.

The hearing drew a standing-room crowd to a 50-seat court-martial room at Fort Belvoir outside Washington, D.C., including defense lawyers from Guantánamo’s Sept. 11 tribunal and prosecutors from the Abd al Hadi al Iraqi trial.

Because Congress has forbidden the transfer of detainees to the United States for any reason, each and every hearing has to be held at the base’s crude Camp Justice compound.

It is not so in the Qosi case because he appears to have left home to join forces with AQAP in Yemen. However, if he did want to attend the hearing or was in custody, his plea agreement forbids him from setting foot on U.S. soil.

In court, case prosecutor Michael O’Sullivan sought to question Lachelier about the unspecified conflict that precluded her from representing Qosi. To that, and a question about whether she had contact with Qosi since he left Guantánamo in 2012, she replied. “That would be privileged.”

“The fact of any communication is privileged,” she said, appearing to lecture O’Sullivan, who for a time was the acting chief prosecutor for military commissions. “Especially in this case.”

O’Sullivan argued to Pohl that the three lawyers the Chief Defense Counsel had assigned to the fact-finding hearing — Filbert, Schwartz, and Navy Cmdr. Pat Flor — were not entitled to receive evidence or act on Qosi’s behalf because “they do not enjoy an attorney-client privilege.”

To which Filbert replied: “We’re properly detailed. We’re ready to represent Mr. al Qosi.”

First, however, Pohl recessed to no set date to consult with the appeals court on what to do about the only lawyer in court who ever met the man whose case is on appeal, and who claims a conflict.

This story was originally published July 12, 2017 at 2:48 PM with the headline "First war-court hearing on U.S. soil stops before it even gets started."