Nearly Eight Years in Guantanamo Bay, Two Motions Closer to Trial

Devon Chaffee- Advocacy Counsel at Human Rights First- is in Cuba to monitor the proceedings and report back on events as they unfold.

Cross-posted from the American Constitution Society

Today military judge Lt. Col. Nancy J. Paul ruled on two motions in the case of Ibrahim Ahmed Mahmoud al Qosi, bringing his case one step closer to trial before a military commission at Guantanamo Bay. In over five years since the prosecution first brought charges against al Qosi, it has yet to clear what Judge Paul described as “the first hurdle in this race”—establishing that the Commission has jurisdiction over the defendant.

Judge Paul began with the prosecution’s oral motion to amend the charge sheet against al Qosi to account for new changes to the scope of the Commission’s personal jurisdiction. The Military Commissions Act (MCA) of 2009 replaces the term “alien unlawful combatant” with the term “alien unlawful belligerent” and changes the term’s definition.

The judge’s ruling noted that the prosecution’s motion to amend the charges was “an issue of first impression”—as is typical of issues arising before the commissions—because it involved a provision added by the MCA of 2009 that explicitly allows the prosecution to amend existing charges “as needed to properly allege jurisdiction” under the new law.

But Judge Paul refused to allow the bulk of the prosecution’s proposed amendments, even under the new provision, finding that they went far beyond what was “needed to allege jurisdiction.” The changes would’ve expanded the timeframe of the charge sheet from five to nine years and included numerous new overt acts. Borrowing from the rules of the well-established courts martial system that don’t directly apply to military commissions, Judge Paul concluded that to allow all of the prosecution’s proposed amendments would be a “major change” to the charges and would “bring unfair surprise to the accused.”

In the end, the ruling allowed the prosecution only to substitute terminology—to change the term “alien unlawful combatant” to “alien unlawful belligerent.” But that won’t necessarily prevent the government from adding to the allegations against al Qosi before the case goes to trial. The prosecution may still decide to withdraw the existing charge sheet and re-refer new charges, as it’s already done at least twice before in this case.

The second ruling Judge Paul issued today dismissed the defense counsel’s motion to grant al Qosi a status determination tribunal before three commissioned officers or dismiss the case for lack of jurisdiction. In past conflicts, the United States has traditionally used such competent tribunals to determine the status of armed conflict detainees pursuant to army regulations and Article 5 of the third Geneva Convention. Over the objections of senior military officers, none of the Guantanamo detainees were afforded such a tribunal at the point of capture.

Judge Paul’s ruling also dismissed the prosecution’s motion to punt the determination of al Qosi’s status to the panel of five commission members that will hear the case once it goes to trial. Instead, she scheduled a hearing for January 6 to give the prosecution the opportunity to prove that the Commission has personal jurisdiction over the accused.

After reading the ruling, Judge Paul added that the hearing will not deny the defendant any rights that he would have enjoyed under the army regulations—despite defense counsel’s argument that the status determination should not be decided by one individual alone. She notably concluded her discussion of the ruling by recognizing that in determining whether there is jurisdiction, she will have to look at the Geneva Conventions.

Until Next Time

One of the pending defense motions left unresolved by today’s proceedings deals with whether the charges brought against al Qosi occurred within an armed conflict. Yesterday Capitan Seamus Quinn, U.S. Marine Corps arguing for the prosecution, stated that under the Military Commissions Act of 2009, “armed conflict is out and hostilities is in.” Yet Capitan Quinn’s assertion seems to contradict the plan language of the MCA of 2009 which requires that an offense triable by military commission must occur “in the context of and associated with hostilities,” and then defines hostilities as “any conflict subject to the laws of war.” Given that the laws of war apply only in the context of armed conflict, it remains entirely unclear from the prosecution’s argument yesterday why this change in semantics would make the presence of a conflict irrelevant.

The issue of the relevancy of the absence of an armed conflict and how one defines the scope of an armed conflict is just one of a number of additional “hurdles” that the prosecution will need to clear before al Qosi can be brought to trial.