In an unprecedented war court development, a Pentagon appeals panel has ordered a military judge to hold a hearing to decide if a freed former captive is an enemy of the United States not entitled to an appeal of his war court conviction.
Ibrahim al Qosi, 57, pleaded guilty to providing material support for terror as an al-Qaida foot soldier in 2010, and was sent home to Sudan in 2012 when his sentence ended. He has since emerged on a video as a spiritual leader of sorts with al-Qaida of the Arabian Peninsula, AQAP, whereabouts unknown.
Two Pentagon attorneys have been appealing that conviction, noting that a civilian court subsequently determined that providing material support for terror is not a legitimate war crime. Other similar convictions have been overturned even after the captives were gone from Guantánamo.
But rather than look at the straightforward question of whether Qosi’s conviction should be upheld, the U.S. Court of Military Commission Review wants a military judge to hear evidence to help them decide whether Qosi’s post-conviction, post-release behavior ought to prevent his lawyers from pursuing an appeal.
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On June 19 the review panel ordered a lower military court to hold a fact-finding session, a DuBay hearing, on the question of whether there’s evidence that Qosi’s an “alien unprivileged enemy belligerent,” as the prosecutors claim.
In late 2015, more than three years after his repatriation, the Sudanese former bookkeeper for Osama bin Laden appeared on an AQAP video praising jihad. “As the U.S. has killed our men, we have killed its people,” he is heard saying in Arabic. “But it is not the same. Our dead are in heaven and theirs are in the hellfire, and the war is not over yet.”
Prosecutors offered as proof a one-page, unclassified Defense Intelligence Agency profile that says Qosi “likely reengaged in terrorist activities, since at least late-2015, based on his pro-jihadi writings.” The U.S. intelligence community views the problem of recidivism by released Guantánamo captives through a dual standard: Those who have been confirmed to have “reengaged,” and those suspected of doing so. The DIA language suggests Qosi’s in the later category.
The Court of Military Commissions Review called that insufficient proof that was based “primarily, if not completely, on hearsay.”
Earlier the court had wondered whether Qosi, who has not been in touch with his U.S. military attorneys since leaving the prison in a U.S. Air Force repatriation flight, even wants his conviction overturned.
Marine Brig. Gen. John Baker, the chief defense counsel for military commissions, called that the wrong question. Congress decided that every war court convict is entitled to a full appeal, Baker said, so his office is pursing it. He similarly described Qosi’s current status as irrelevant to the appeal.
“He’s been convicted of a crime that isn’t a crime,” Baker said in an interview. The question raised by the appeals panel demonstrates “everything that’s wrong with the commissions all wrapped up in one. That’s the Qosi case.”
“The issue here is whether he’s returned to the fight,” said Army Brig. Gen. Mark Martins, the chief war court prosecutor. “Is he part of al-Qaida, Taliban, associated forces engaged in armed conflict against the United States or a coalition partner? Has he committed belligerent acts?”
Martins defended the procedure as well within the authority of the military appeals court. “There are doctrines of fugitives losing their ability to ask the courts to give them relief. You can’t ask for the benefit of the court if you’re evading it.”
To which Baker replied: “The fugitive doctrine is a red herring. The fugitive doctrine applies only where someone who has asked for an appeal then escapes from imprisonment. Ibrahim did not escape from Guantánamo. That would make him a fugitive. Instead, he served his sentence and should not be made to forfeit an appeal that is mandatory under the statute.”
Before the DuBay hearing can be held, Martins has to name a prosecutor. The chief war court judge, Army Col. James Pohl assigned himself to the case and said it would start July 12 at a courtroom somewhere in the Washington, D.C., area. Baker named a trio of Pentagon-paid lawyers who have worked at Guantánamo: Navy Capt. Brent Filbert, Cmdr Pat Flor and Mike Schwartz.
Martins said he expected the hearing would be open to the public, unless the judge invokes a classified information exception and closes portions to hear certain intelligence.
“It’s a public trial,” Martins said. “It will be a public proceeding.”