In this photo of a sketch by courtroom artist Janet Hamlin, defendant Ibrahim al Qosi, far left, sits with a member of his defense team in the courthouse for the U.S. war crimes commission at the Camp Justice compound on Guantanamo Bay U.S. Naval Base in Cuba, Wednesday, July 15, 2009. A Pentagon court security officer approved this sketch for release. JANET HAMLIN / POOL SKETCH ARTIST
BY CAROL ROSENBERG
crosenberg@MiamiHerald.com
GUANTANAMO BAY NAVY BASE, Cuba -- A military judge dealt the Pentagon a double-barreled defeat Thursday, rebuffing a bid to include al Qaeda's 1992-96 formative era in a Sudanese captive's war crimes case and separately ordering the government to put on a show-cause hearing Jan. 6.
The decision by Air Force Lt. Col. Nancy Paul appeared to put the case against alleged Osama bin Laden bodyguard Ibrahim al Qosi on track to become the first Obama administration trial by military commission here at Guantánamo Bay, early next year.
But she also limited the scope of the trial, leaving Pentagon prosecutors evaluating whether to withdraw the case entirely and start fresh.
Meanwhile, Paul ruled that adding allegations against Qosi, 49, covering the time period of 1992 to 1996 would "fundamentally'' and "dramatically'' change the nature of Qosi's military commission case. She called the prosecutors' proposal an "unfair surprise'' nearly two years after the Pentagon swore out charges against the captive.
Conviction at trial is punishable by a maximum of life in prison. Qosi has been held at Guantánamo for almost eight years.
"While the basic elements of the offense conspiracy does not change, nor is a greater punishment possible, the scope of the crimes the accused must defend against will have shifted dramatically,'' she read from the ruling, as Qosi listened to an Arabic translation.
At issue had been whether the Pentagon could use a new military commission law just enacted by Congress to expand the case against Qosi, who is now accused of supporting terror and conspiracy for allegedly serving as a member of bin Laden's bodyguard detail in Afghanistan after 1996.
From 1992 to 1996, bin Laden was based in Qosi's native Khartoum, and, according to Pentagon documents, Qosi allegedly handled the al Qaeda payroll. Sudan's government had bin Laden and his organization leave the country in 1996, after pressure by the Clinton administration.
The Pentagon's chief war crimes prosecutor, Navy Capt. John F. Murphy, said his office would not appeal the ruling.
But he said his lawyers would consult with attorneys at the office of Susan Crawford, the Pentagon appointee in charge of the war court, to decide whether to withdraw the case and bring new charges that expand the case.
In her twin rulings Thursday, Paul became the first commissions judge to address head-on how to apply Congress' new Military Commissions Act of 2009 to old cases still at the court and approved for military trials by Attorney General Eric Holder.
Qosi was singled out for trial in the earliest years of the establishment of the prison camps at Guantánamo. He was captured in Afghanistan in late 2001, allegedly after serving on an al Qaeda mortar crew and helping bin Laden elude American capture at Tora Bora.
He has been charged in every version of a commission dating back to the original effort established by the Bush administration, which was struck down as unconstitutional by the Rehnquist Supreme Court.
Under the new law, only war-on-terror captives defined as an ``unprivileged enemy belligerent'' -- not a POW -- can go before the tribunals now being held here at Camp Justice.
And defense lawyers asked the judge to throw the case out because Qosi had been held as an ``unlawful enemy combatant'' -- Congress' old label for a war-crimes trial candidate.
Navy Cmdr. Dirk Padgett, the case prosecutor, argued Wednesday that the case the Pentagon would present at trial to a panel of military officers would prove Qosi was an ``unprivileged enemy belligerent.''
But Paul instead borrowed a page from the earlier trial of Osama bin Laden's Yemeni driver and ordered the government to call witnesses and present evidence Jan. 6, in a proceeding that some lawyers have likened to a show-case hearing in civilian criminal court.
To decide whether the captive of eight years met the definition, she said, she would consult both U.S. law and The Geneva Conventions.
"We don't view this as a setback,'' said Murphy, the Pentagon prosecutor. "We view this as a normal part of the process. We have conflicts between the new statute and the old statute. There are remedies to these issues.''
Source:miamiherald.com/
No comments:
Post a Comment