By Melina Milazzo, Pennoyer Fellow, Law and Security
Guantanamo Bay, Cuba
On August 11th, the jury panel in the military commission case of Ibrahim Ahmed Mahmoud al Qosi delivered what seemed to be a harsh 14-year sentence for the one time cook and occasional driver to al Qaeda members. At least that’s the sentence that can be trumpeted by the government in public. Mr. al Qosi’s real sentence remains secret.
Earlier in the week, military judge Lt. Col. Nancy Paul ruled that the details of the plea agreement would remain sealed until after al Qosi’s confinement was complete. This meant that the agreed upon post-conviction sentence negotiated in the plea agreement – which has been reported by one news organization as 2 years – would be secret to the jury panel and the public until after al Qosi was released.
Because an accused serves the lesser of either the jury panel’s recommended sentence or the sentence negotiated in his plea agreement, it is standard practice in a court martial proceeding that the jury panel would not know of the plea agreement or its details until after it has reached a sentence recommendation. However, what is uncommon is that the sentencing remains secret.
Jury members, moreover, were instructed that the sentencing range for the crime committed by Mr. al Qosi was to be between 12 and 15 years. The military commissions, unlike the federal court, do not have clearly delineated sentencing guidelines. Thus, it is unclear how the sentencing range for Mr. al Qosi was determined.
But what is more troubling is that if reports are true that al Qosi will serve 2 years according to his plea agreement, then the supposed minimum 12-year sentence gives the appearance that the sentencing hearing was for show. After all, it is arguable that Mr. al Qosi could have received a lesser sentence than was negotiated if there was no minimum sentence given at all. But by giving a high minimum sentence while simultaneously keeping the lower negotiated sentence secret, it affords the government an opportunity to appear tough on terror detainees – even when they are cooks and drivers.
This may be a win-win for the defense and prosecution, but hardly seems like a win for justice. To be clear, the motivations of the defense, prosecution, and judge should not be impugned. They all operated in good faith; doing the best they could to deliver justice in a seriously flawed system. Indeed, the al Qosi proceeding highlights the second-class, make it up as you go justice delivered by military commissions.
For example, in an about face from earlier in the week, the judge revised her order that al Qosi remain in Camp 4 and instead “highly recommended” he not be kept in isolation. This was done as a result of the prosecution stating that he “misunderstood” the government’s understanding of the pretrial agreement and “misspoke” earlier in the week when he stated that it was the clear intent of the agreement that al Qosi remain in Camp 4. But what really came from this “misunderstanding” is that there is no clear policy or directive on post-conviction confinement.
Also, despite already having been detained at the U.S. prison in Guantanamo Bay, Cuba for 8 years, 7 months, and 27 days, Mr. al Qosi could not be credited for his pre-trial confinement. Contrary to U.S. federal court and even U.S. court martial, the military commissions do not automatically reduce an accused’s sentencing based on the time he spent in pretrial detention.
The military commissions system is seriously flawed – it was designed to convict, not deliver justice. Therefore, as the al Qosi case demonstrates, the only way to seek justice is by taking advantage of the lack of clarity and precedent which exists within the system and create a parallel system outside of public scrutiny.
But if the best the military commission can produce is a secret, patchwork system of alleged justice – that simply should not be good enough.