Terrorism Trials: Military Commissions

Convening Authority Dismisses Sworn Charges in Three Commission Cases

By Wells Bennett
Thursday, January 31, 2013, 12:18 PM

A procedural note from commissions-land: in documents signed on Monday, the Convening Authority, Retired Vice Admiral Bruce MacDonald, dismissed sworn charges---material support and standalone conspiracy---against GTMO detainees Sufyian Barhoumi, Jabran Said Bin Al Qahtani, and Ghassan Abdullah al Sharbi.   Though charges had been sworn against all three in 2009, none were referred for trial.  Acting on the recommendation of his legal advisor, MacDonald dismissed the three cases "without prejudice"---thus leaving prosecutors free, technically, to proceed against the men at some later time.

What to make of this?

Sworn charges have been kicking around for more than three years now without a referral.  The dismissals thus could signal the Convening Authority's belated acknowledgement of what long has been evident: that the United States could not pursue the charges sworn against the three men.  Maybe the reason was evidentiary.  It could be that prosecutors could not prove, with admissible evidence to date, guilt of the sworn charges beyond a reasonable doubt; the Convening Authority might also have thought a referral (and trial) incompatible with the United States' national security interests.  In any event, MacDonald's move changes little, from a practical standpoint.  Three cases that weren't going anywhere are finally recognized as such.  We cannot know for sure, but it seems unlikely (given the procedural history) that prosecutors would gather more proof.  That leaves the prospect of re-charging the detainees, but with different offenses.

Apropos of charged offenses, the context for the dismissal is intriguing.  Here, the Convening Authority knocks out MST and standalone conspiracy counts against three detainees, on the advice of his lawyer---which almost certainly addressed Hamdan II's invalidation of MST, as regards pre-2006 conduct, and the case's likely impact on standalone conspiracy charges arising from the same period.  And yet, in the 9/11 case, the Convening Authority pointedly refuses to dismiss standalone conspiracy charges---despite the Chief Prosecutor's recommendation to that effect, and increasing doubt about the offense's viability pre-2006.

Update (6:20 p.m.):  Regarding context, bear in mind that the trio of sworn charges antedated passage of the 2009 MCA.  Pursuing the trio further thus would have required "re-swearing," not to mention review and ultimately referral by the Convening Authority.  That the charges were never re-sworn, much less referred, is another indicator of just how dead the three matters were---even before the MST/conspiracy question came to light.