Justice, Guantanamo-Style
August 19, 2010

Last week at Guantanamo, while much of the media's attention was focused on the trial of Canadian Omar Khadr, two other less-noticed trials were also underway, both of them for Ibrahim al Qosi, a Sudanese man who once worked as a cook and driver for Osama bin Laden. One of al Qosi's trials was public and that trial looked like a victory for the Obama administration, which is hoping to legitimize the use of military commissions. But al Qosi's other trial - the one that really mattered - was secret, and it was a demonstration of how broken the military commission system is.

Al Qosi pled guilty to the crime of providing material support for terrorism, making him the first person that the Obama administration has successfully prosecuted in a military commission. Al Qosi's public trial was, quite literally, a show trial. It had the trappings of a trial, but its verdict had no meaning. Al Qosi pled guilty to the crimes of providing material support for terrorism and conspiracy to provide material support for terrorism, and signed a statement detailing the logistical support he had provided bin Laden and al Qaeda. The military jury was carefully questioned for bias by the judge, prosecution, and defense; challenges were raised; and the jury was presented with evidence and advised of the law. In the end, after deliberating for an hour and 20 minutes, the jury issued its sentence, sentencing al Qosi to 14 years in prison, on top of the eight and half years he had already spent in US custody.

But the jury's sentence was irrelevant. Al Qosi's real trial was secret. The judge, counsel, defendant, and the Convening Authority (the Department of Defense official in charge of military commissions) had already agreed on what sentence al Qosi would serve. They had also agreed that the sentence would be kept secret, not only from the jury but also from the public. The news outlet Al Arabiya has reported that al Qosi will only serve two more years before he is repatriated back to his native Sudan. If true, the sentence is a stunning victory - for the defense.

It is difficult to convey the bewilderment that even I - a seasoned observer and former military commissions defense lawyer - experienced watching these events unfold in Guantanamo last week. I was amazed as defense counsel vigorously urged the jury to sentence al Qosi to the minimum sentence the judge said they could issue - 12 years - instead of the maximum sentence allowed by the judge - 15 years. The prosecution in turn argued that al Qosi deserved the maximum 15-year sentence, although it put on virtually no evidence other than testimony by a special agent with the Naval Criminal Investigative Service (NCIS) about the structure of al Qaeda. Even the jury members must have wondered why they had been called down to the island to make such narrow decision. The observers frantically flipped through the rulebook for military commissions - the one that had been issued only a few months ago - and confirmed that the charges have no minimum sentence, and the maximum sentence is life imprisonment.

Why the range of 12-15 years then? The cynical observer would think it was to ensure the prosecution was able to celebrate a harsh sentence. I'm not sure what other kind of observer there could have been at these proceedings.

Of course, the jury members, unlike the media and observers, had no idea that al Qosi had a prearranged sentence agreement. They also did not know that the prosecution's expert on al Qaeda - NCIS Special Agent Robert McFadden - was actually one of al Qosi's key interrogators. Only once they left the island would they have discovered that their service was moot, and was intended to be all along.

The proceedings had begun on an even stranger note. At the start of the hearing that was supposed to lead to sentencing, the parties jointly requested an order from the judge, Air Force Lt. Colonel Nancy Paul. It seems an integral term of al Qosi's plea bargain is that he not be kept in isolation following sentencing, and instead be permitted to stay in the communal-living camp at Guantanamo called Camp 4, where he has resided for several years. According to the prosecution, as of the day prior to the hearing, the authorities in Guantanamo had declared that they intended to move al Qosi to isolation as soon as he was sentenced.

The prosecution and the defense both implored the judge to order the authorities to keep al Qosi in Camp 4, claiming that the (secret) written plea agreement virtually required it. The prosecutor stated that it was the US government's "promise" to keep him in Camp 4 and that there was no regulation or law that prohibited it. Judge Paul accordingly did issue an order, holding that the term was "crucial" and "a substantial factor" in the defendant's agreement to plead guilty. She said that failure to place al Qosi in Camp 4 or comparable conditions (which do not currently exist) would nullify the plea agreement.

Several hours later, as the case was well into jury selection, the prosecution requested a private meeting with the defense and judge, and the trial was suddenly recessed, not to start again for another two days. Rumor had it that the Department of Defense did not appreciate the judge's order. So when proceedings resumed, the prosecutor began by repeatedly apologizing for having misspoken; defense counsel agreed that al Qosi had all along known that he might not end up in Camp 4; and Judge Paul revised her order to say that she "highly recommend[ed]" that al Qosi be placed in Camp 4, but that failure to do so would not nullify the plea agreement. She noted that the Convening Authority had agreed to defer imposition of al Qosi's sentence for 60 days to give him (yes, al Qosi himself) time to negotiate with the Guantanamo authorities, as well as for US Southern Command to create a policy that would permit him to serve his time in Camp 4. The deferral, the prosecutor asserted, was "an act of grace" by the Convening Authority but in no way represented any obligation. What was the lynchpin of the plea agreement two days earlier had been converted into a footnote.

Where al Qosi will serve his sentence remains unclear. Perhaps he will be free so soon that it hardly matters. It is difficult to assess what really happened without knowing the terms of the plea bargain but it appears that all parties - prosecution, defense and judge - wanted so badly for the agreement to be accepted that they were comfortable setting aside anything that got in the way, including rumored refusal by the Defense Department to comply with the court order.

After sentencing, I found myself having dinner a few feet away from a curious gathering. Judge Paul was scheduled to retire the following day (technically, to begin "terminal leave" on her way to military retirement). The judge, defense counsel, prosecution counsel, members of the clerk's office, court reporters, and others all enjoyed dinner, replete with wine and gifts for the judge. They had a lot to celebrate. Together, they had created their own mini-justice system. The one they were given was so broken that they simply couldn't operate within its parameters. The prosecution walked away with a political success - a 14-year sentence for a man who cooked for al Qaeda; the defense likely negotiated a dream deal for their client; and the judge walked into retirement knowing that she had closed the chapter on another military commission case.

As Judge Paul said before closing the proceedings, "We have made law, and we have made history."