Apropos of Charlie Savage’s story (and Bobby’s follow-up) on the government's litigation tactics in Hamdan and al-Bahlul: assuming the material support and conspiracy charges in those cases indeed are tossed out (through final invalidation by the courts, or through unilateral withdrawal by prosecutors, or through some combination), what happens to material support and/or conspiracy convictions in other commission cases? The question underlies this "Petition for Extraordinary Relief in the Nature of Writs of Mandamus and Prohibition" and a related brief, both filed last Friday with a military appeals court by lawyers for Guantanamo detainee Ibrahim al Qosi.
In 2010, Al-Qosi pleaded guilty to conspiracy and material support and, apparently, nominally waived his rights to further appellate review. Upon completing an adjusted sentence---the accused agreed to cooperate with prosecutors---he was released to Sudan in July of last year. In December, freshly appointed appellate defense counsel nevertheless sought to travel to Sudan, in order to “meet with Mr. al-Qosi for the first time and to advise him of his post-trial rights and options"---and, considering the timing, almost certainly to discuss a challenge to his material support and conspiracy convictions, in light of the D.C. Circuit's decision in Hamdan and the pending appeal in al-Bahlul. But the Convening Authority viewed al-Qosi's case as closed, and rejected his attorney’s request for travel funding. Thus al Qosi petitioned to the Court of Military Commission Review (“CMCR”), which yesterday ordered the Convening Authority to respond, and to address its jurisdiction over al-Qosi's request.
On that point, note al-Qosi's challenge to his appeals waiver: according to the accused, essential waiver documents were filed outside of a statutorily-mandated time-frame; and, al Qosi says, core jurisdictional issues---like the existence of MST and conspiracy as commission-triable offenses---cannot be waived in the first place.
We'll keep an eye on this one...