First Guantánamo Detainee Tried in Federal Court is Aquitted

The first former Guantánamo detainee to be tried in federal court, Ahmed Khalfan Ghailani, was convicted of one count of conspiracy to destroy government buildings and property.  He was acquitted of the other 280 charges, all stemming from the 2008 bombings of U.S. Embassies in Tar es Salaam, Tanzania and Nairobi, Kenya, which killed 244 people, including 12 Americans. Ghailani could be sentenced to 20 years to life.

This first case of a detainee being tried in a federal court exposed many of the difficulties that the Obama administration will face if it wants to close the Guantánamo detention facility and try the detainees in federal courts, rather than military commissions.  Unlike the Commission that tried detainees such as Omar Khadr, which used the flexible evidentiary standards of the military commission system, prosecutors in federal courts must adhere to strict evidentiary rules.  Hussein Abebe is a government witness who would have testified that Ghailani had purchased the TNT used to blow up the Tanzanian embassy.  However, interrogators in a CIA black site, one in which Mr. Ghailani was being held, found the identity of Abebe while being what defense attorneys say was torture.  Additionally, the government chose not to introduce statements made by Mr. Ghailani while in CIA custody and while at Guantánamo, statements the prosecution said amount “to a confession,” because the statements were “coerced” and “inadmissible,” according to the defense.

Read more at New York Times.

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Bombs Sent from Yemen Raise Question about Guantánamo Detainees

As far back as May 2009, President Obama and the CIA were trying to coordinate with the governments of Yemen and Saudi Arabia to plan the eventual release of Yemeni citizens detained in Guantánamo Bay, Cuba.  At that time, 97 Yemenis, including 26 cleared for release, represented the largest group of the 240 detainees in US custody at that time in the detention facility.  In June of 2009, there were reports of talks between the US and Saudi governments about repatriating Yemeni detainees in Saudi Arabia.  The Saudis had what was considered a very successful reintegration and de-radicalization program for former Guantánamo detainees.  This is contrasted with the Yemeni government, which lacks the strong, central power of Saudi Arabia.  Additionally, there is a growing al Qaeda presence in Yemen, and occasional insurgent skirmishes on the border of Yemen and Saudi Arabia.

There have been occasional detainees repatriated to Yemen, but the majority have been sent to Saudi Arabia.  One the Yemeni released to Saudi Arabia was Said Shihri, who is currently the second-in-command of al Qaeda in Yemen.  Shihri was captured by the US in Afghanistan in 2001, and released to Saudi Arabia in 2007.  In 2009, he was featured in a video speaking of the union of the Yemeni and Saudi branches of the terrorist group.  Another Yemeni released to Saudi custody was Uthman Ghamdi, who is an aid to Anwar Awlaki, a cleric born in the US who has become a spokesman for al Qaeda in Yemen.

After the attempted Christmas bombing last year, President Obama suspended transfers of prisoners from Guantánamo to Yemen, after learning he had received training in Yemen.  It was also announced that there would be no more transfers to the Saudi rehabilitation program, after a Pentagon report estimated that one-fifth of detainees released from Guantánamo had taken up extremest activities.

It is not clear what the impact the latest bombing attempt, which originated in Yemen and bears all the hallmarks of an al Qaeda operation.   It is not clear yet what, if any, impact these most recent threats from Yemen will have on the Administration’s plans to close the detention facility, but it will most likely have some effect upon decisions made about the remaining Yemeni detainees held in Guantánamo.

Read more at LA Times.

Second Detainee Convicted Under Obama Administration

Omar Khadr, the Canadian pick up off the Afghan battlefield in 2002, when he was 15 years old, was convicted Monday as part of a plea deal.  The trial has garnered much international criticism, because of Kadr’s age, information allegedly obtained through inhumane treatment, and because of the nature of the commissions themselves.

Khadr plead guilty to five charges:  murder in violation of the laws of war; attempted murder in violation of the laws of war; conspiracy; providing material support for terrorism; and spying—and agreed to a 50-page stipulation of facts admitted by the prosecution.  Sentencing began on Tuesday.  Although there is almost certainly a sentencing limitation in the pretrial agreement—rumored to include one more year in Guantánamo and  then seven in Canada—under the Military Commission system, Khadr will be sentenced by a panel of military officers, and then get the lesser of the two sentences.

Khadr’s guilty plea included an agreement that he will not challenge the legality of his detention, trial, interrogation or confinement.  Ibrahim al Qosi, who plead guilty in July 2010, and the only other detainees sentenced under the revised Military Commission Act of 2009, agreed to similar post-trial restrictions.  It seems like the military is seeking to avoid the problems of the other two military commissions, or is at least avoiding anyone pointing out those problems in front of the Supreme Court.

Possible Plea Deal for Canadian Detained in Guantánamo Bay

Omar Khadr, a Canadian citizen held in the U.S. detention facility in Guantánamo Bay, Cuba, was set to be the second detainee tried under the Obama administration.  Khadr was detained after a firefight near Khost, Afghanistan, and was accused of lobbing a grenade that killed a Special Forces medic, in violation of the laws of war.

Khadr was 15 years old when detained, and his detention and trial in Guantánamo have created world-wide backlash.  The first detainee trial during the Obama administration, the guilty plea of Ibrahim al Qosi, was a very easy case, with very little public controversy.  (Besides a sealed plea dealex post facto issues, problems with the pre-trial agreement, and confusion over whether material support of terrorism is a violation of the laws of war.)  It is unclear why the administration decided to bring forward Omar Khadr’s trial as the first detainee trial that might actually have to be litigated, as the age of Khadr when he was detained and the crime of which he is charged—murder is not a traditional violation of the law of war, but is normally tried under domestic law.

However, there might be a plea deal in the works.  Khadr’s trial started in August, but was suspended after Khadr’s military counsel collapsed in court, due to complications with gallbladder surgery.  During that initial hearing, the military judge had ruled that evidence of Khadr’s involvement in the death of the SF medic would be admitted, despite allegations of torture and mistreatment.  It now appears that Khadr and his lawyer are seeking a pretrial agreement under which he would serve eight more years, seven of those in Canadian custody.  The court date is scheduled for October 25, and if it is true that there will be a guilty plea and pretrial agreement, the Military Commission Act of 2009 will remain untested by litigation.  (Al Qosi’s pretrial agreement, in part, prevents al Qosi from challenging or appealing the decision of his Military Commission, and it is likely that Khadr’s potential agreement will contain similar language.)

Challenge to the Court of Military Commission Review

Salim Hamdan challenged the eligibility of two of the judges sitting on his Court of Military Commission Review (CMCR) panel.  The CMCR is the appellate court for the Military Commission system, and, under the Regulation for Trial by Military Commission (2007), judges assigned to the CMCR should be “judge advocates who are currently certified and detailed as appellate military judges to the services’ Courts of Criminal Appeals, or civilians of comparable qualifications.”   Currently, all judges assigned to the CMCR are detailed from the Courts of Criminal Appeals (CCAs) of the various services.

Hamdan’s challenge was that two judges on his CMCR panel had been reassigned from a CCA, and therefor the CMCR that reviewed his case was improperly constituted.  Air Force Col Thompson was an Air Force Court of Criminal Appeals (AFCCA) judge when assigned to the CMCR, but left the AFCCA in June of 2010.  Hamdan claimed that Col Thompson was not qualified to sit on the CMCR since she was no longer a CCA judge, and that a decision by an improperly constituted CMCR would be reversible error. See Ryder v. United States, 515 U.S. 177 (1995); United States v. Lane, 64 M.J. 1 (CAAF 2006).

The challenge of the other CMCR judge, Navy CAPT O’Toole, was that he was reassigned away from his position as chief judge of the Navy-Marine Corps Court of Criminal Appeals (NMCCA) into the newly-created position of Assistant Judge Advocate General, Chief Judge of the Department of the Navy (AJAG-CJ).  Hamdan challenged CAPT O’Toole on several grounds: that the AJAG-CJ is ineligible to sit on the NMCCA; that the AJAG-CJ is the senior rating officer for all judges of the NMCCA (and would have an appearance of influence over NMCCA judges); and that sitting on the CMCR would be a breach of statute, see 10 U.S.C. 866(g), UCMJ Art. 66(g), and regulation, see Regulation for Trial by Military Commission para. 25-2.c.

Al Bahlul joined in Hamdan’s challenge, see this motion, insofar as that CAPT O’Toole should recuse himself from supervisory duty over other CMCR judges.  The CMCR issued a ruling clarifying the duties of the AJAG-CJ, stating that CAPT O’Toole is not a rater for any judge on the CMCR, and that the rater for those judges is the Navy Judge Advocate General.  But this does not address the issues raised by Hamdan—the requirement that CMCR judges must concurrently assigned to a CCA.  The National Institute of Military Justice filed an amicus brief in support of Hamdan.