Case Coverage: Military Commissions

Court of Military Commissions Review Issues Order in Qosi Case

By Helen Klein Murillo
Friday, March 24, 2017, 12:09 PM

On March 11, the Court of Military Commissions Review (CMCR)—the appellate court sandwiched between the military commissions and review at the D.C. Circuit court of appeals—issued a two-pronged order in the long-simmering appeal of the 2012 military commission conviction of Ibrahim Ahmed Mahmoud al Qosi.

Al Qosi, a Sudanese national, was captured in late-2001 attempting to cross the border from Afghanistan to Pakistan. He confessed to close associations with Osama bin Laden, acting as cook and driver at bin Laden’s compound, and to fighting for a militia that supported the Taliban, but claimed he was neither involved in planning nor informed in advance of terrorist activities abroad, including the September 11 attacks. He was transferred to Guantanamo in early 2002.

In 2010, al Qosi entered into a pretrial agreement in the military commissions. In exchange for stipulating to facts, waiving his appellate rights, and agreeing to a sentencing range of 12 to 15 years, the convening authority agreed that al Qosi would be made to serve only 2 years of that eventual sentence. Al Qosi then entered guilty pleas to conspiracy and material support for terrorism. The defense petitioned for the military commission judge to instruct the commission members that they must return a sentence between 12 and 15 years. Al Qosi was sentenced to 14 years, 12 of which were suspended as part of the plea deal, and he was repatriated to Sudan in July 2012.

In September 2012, Captain Mary McCormick, a Navy JAG, was appointed as al Qosi’s military commission counsel. Denied funds for interpreter services and travel, McCormick was unable to communicate with al Qosi regarding his post-conviction rights.

Nevertheless, in early 2013, McCormick filed a petition for a new trial. She argued that the prosecutors in the case had perpetrated a fraud on the military commission members by instructing them on a non-congressionally mandated minimum sentence of 12 years. The petition alleged that the instruction was “the result of a deliberate intent to mislead [the commission members] regarding the extent of their authority to sentence Mr. Qosi,” and that, indeed, the members could have sentenced al Qosi below the predetermined range. Despite being unable to communicate with al Qosi, McCormick noted her duty to timely file the petition to avoid waiving her client’s rights.

The CMCR denied the petition, in part because McCormick hadn’t established an attorney-client relationship so couldn’t file the petition on al Qosi’s behalf. McCormick sought writs of mandamus to compel interpreter and travel funds in order to meet with al Qosi but was again denied.

In the latest appeal, Suzanne Lachelier, one of al Qosi’s trial attorneys, was added as assistant appellate counsel. The latest CMCR order indicates this won’t be enough to solve the problem, noting that neither attorney has “provided the Court with any evidence that al Qosi has consented to be represented by either of them in appellate matters, or that he has authorized them to proceed with this appeal.” As such, the court orders the attorneys to file a statement indicating whether either has communicated personally with al Qosi since his repatriation and providing any other evidence that suggests an attorney-client relationship existing after his return to the Sudan.

The court simultaneously orders briefing on another matter: al Qosi’s alleged recidivism. By 2015, al Qosi emerged as a leader in al-Qaida of the Arabian Peninsula, an active al-Qaida affiliate in Yemen, appearing in the group’s propaganda films. The CMCR notes that exactly what effect al Qosi’s recidivism has on the current appeal “is for another day,” but declares that the factual question “needs to be answered” and orders the government to file a statement setting forth its position and factual basis.

As Carol Rosenberg of the Miami Herald reported recently, al Qosi’s recidivism may bear on whether the Trump Administration makes good on another plea repatriation agreement. Saudi national, Ahmed al Darbi, pled in 2014 and agreed to testify against alleged USS Cole bombing mastermind al Nashiri, in exchange for serving his eventual sentence in Saudi Arabia.