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Changing the Charges. Changing the Game.

Nusrat Choudhury,
Legal Director, ACLU of Illinois
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December 3, 2009

(Originally posted on Daily Kos.)

Yesterday, I observed proceedings in the case of Ibrahim Ahmed Mahmoud al-Qosi, a Sudanese man who has been detained at Guantánamo for nearly eight years, and one of the detainees Attorney General Holder has decided to prosecute in the military commissions rather than in federal court. In February of 2008, al-Qosi was charged with conspiring with Osama bin Laden and al Qaeda and providing material support for terrorism. Those of us who came to Guantánamo to observe the proceeding in al-Qosi’s case walked into court thinking that these charges formed the basis for the government’s prosecution.

But nothing having to do with the military commissions ever goes according to plan.

The judge, Lt. Col. Nancy Paul, commenced today’s proceeding by informing everyone that there had been a “slight” revision to the schedule. After meeting with counsel in a closed-door conference prior to the hearing, she had decided that in addition to hearing oral argument on the four defense motions that had been briefed long ago and were scheduled to be heard that day, the court would hear oral argument on a last-minute motion by the government to amend the charges against al-Qosi.

Apparently, the government had provided notice two days before Thanksgiving that it would move to amend the charges against al-Qosi to conform to the Military Commissions Act of 2009. The public didn’t know of the motion because the government’s notice was never entered on the military commission’s public docket, not an unusual occurrence in this secrecy-shrouded system of justice.

It was not entirely surprising that the prosecution wanted to amend the charges against al-Qosi. In October, President Obama signed into law the Military Commissions Act of 2009, a.k.a. Military Commissions 3.0. The new act was meant to remedy the due process deficiencies of versions 1.0 and 2.0 — and it did make some progress towards this end, eliminating the government’s authority to use statements obtained using cruel, inhuman or degrading interrogation methods, placing on the government the burden to prove the reliability of hearsay, and providing detainees greater latitude in selecting their attorneys. These are notable improvements.

But the tribunals still fall far short of comporting with the Constitution and the Geneva Conventions. As the New York Times revealed earlier this week, they remain unfair and ineffective—a second-class system of justice. The commission’s handling of the government’s motion to amend the charges against al-Qosi provides a case in point.

In an ordinary criminal prosecution in federal court, the indictment is the foundational document. It tells the defendant what he’s been accused of, and why, so that he can adequately prepare his defense. If the government seeks to amend the charge against an accused, the defense is entitled to notice and opportunity to be heard.

In al-Qosi’s military commission case, however, the government showed its proposed amendments to the defense—which were three pages long—less than two hours before today’s hearing.

The prosecution sought to make three amendments to the charge sheet. The first sought to accuse al-Qosi of being an “unprivileged enemy belligerent,” rather than an “unlawful enemy combatant.” This proposed amendment was not unexpected, because the MCA of 2009 grants the military commissions jurisdiction to try the former, but not the latter group, in an effort to bring the commissions in line with international humanitarian law.

The second and third proposed amendments were more troubling. The government sought to replace the nine overt acts alleged in support of its conspiracy charge with 12 new overt acts. (I have no idea what those new overt acts are since the government presented its proposed amendments only to the court and defense counsel less than two hours before the hearing. Let’s hear it for transparency!) It also sought to expand the time frame of the conspiracy and material support charges to encompass alleged acts that took place between 1992-2001—reaching back four years earlier than the time frame specified in the February 2008 charge sheet. The government seemed to be using the opportunity to amend the charge sheet to reflect the new jurisdictional basis of the MCA of 2009 to significantly shift the nature and scope of the charges against al-Qosi.

Al-Qosi’s attorney, Cmdr. Suzanne Lachelier, protested that the defense needed time to brief its opposition to the government’s motion, but Judge Paul was firm: “I am going to deal with this issue before we leave the island.”

Why would a judge ask the defense to argue its opposition to a motion to amend the charge less than two hours after seeing the proposed amendments? Doesn’t due process require the defense the opportunity to prepare a meaningful response?

Apparently, even in Military Commissions 3.0, “due process” and “military commissions” don’t sit entirely well with each other. Cmdr. Lachelier nevertheless put forth an articulate, if brief, challenge on the ground that the amendments did not simply conform the charges against al-Qosi to the new MCA of 2009, but actually constituted major changes of which the defense should have been notified in advance and given an opportunity to respond.

While Judge Paul should have required that the defense be given a meaningful opportunity to be heard, the problems with the military commissions can’t be attributed solely to the decisions of individual judges. One revealing incident took place towards the end of the argument relating to the prosecution’s proposed amendments to the charge sheet.

In response to prosecutor Cmdr. Dirk Padget’s insistence that the amendment of the overt acts supporting the conspiracy charge was required to preserve the court’s jurisdiction over al-Qosi in light of the passage of the MCA of 2009, Judge Paul asked, quite reasonably, for case law or legislative history in support of the government’s position.

Cmdr. Padget responded, “No, Judge. I have no support. Um, I am, uh, flummoxed with these commissions. We are breaking new ground. Of course, you know, we have no case law.”

After a seven-year experiment with the military commissions, we are still left with a system in which the players simply don’t know the rules. And in most cases, the reason they don’t know the rules is that there simply aren’t any or because they keep changing. The commissions still lack the established rules, procedures, and case law that are necessary to guide judges in their rulings and the parties in their arguments, and to provide due process to the accused. In an attempt to bring some semblance of order to the proceedings, Judge Paul declared that she would apply rules that were issued under the last iteration of the military commissions — rules that were issued before the MCA of 2009 became law. But even those regulations have barely been tested, and they certainly don’t supply the kind of solid foundation that would be available to a judge, the prosecution, and the defendant in an ordinary federal court. And if the new commissions are so different than the old ones, why should the old rules apply at all? And what if the application of the old rules in the prosecution against al-Qosi under a new and reformed statute authorizing the Military Commissions are prejudiced against the defendant?

The charges against al-Qosi underscore even more fundamental flaws in the military commissions system. Those who claim that the military commissions are legitimate argue that similar commissions have been used in our nation’s history to prosecute war crimes. Yet the government has charged al-Qosi with only two crimes—conspiracy and material support for terrorism—and neither of these has traditionally been considered a war crime.

At the end of the hearing, Judge Paul said she would rule on the government’s motion to amend on Thursday morning.

Regardless of how the judge rules, today’s proceedings inspired anything but confidence in the ability of the military commissions to give al-Qosi — or any detainee — a fair trial and speedy trial.

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