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The Gitmo Sentence Guessing Game

Jennifer Turner,
Human Rights Researcher,
ACLU Human Rights Program
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August 20, 2010

Before Omar Khadr’s trial ground to a halt last week, the sentencing hearing of 50-year-old detainee Ibrahim al-Qosi continued apace. Al-Qosi is the first detainee to be convicted in the military commissions under the Obama administration, in a plea deal in which he admitted to being an al Qaeda cook and occasional driver.

During the two days of sentencing hearings, everyone in the room other than the jurors knew that there had been a secret plea agreement capping the actual amount of time al-Qosi will serve at 10 years (two years in addition to the eight he’s already served). On Monday, the judge, Lt. Col. Nancy Paul, ruled that this true sentence would be kept secret until the military commissions’ Convening Authority approves it, at an unspecified date. The jurors were only given the enumerated charges to which al-Qosi had pled guilty, and had to set a formal sentence based on that information.

So what followed in the courtroom was a charade. The jury’s sentence was just for show. The true sentence was secret.

On Wednesday, Judge Paul ordered the jury to give a sentence of 12 to 15 years. There’s nothing in the military commissions rules manual empowering a judge to set a minimum sentence; it also never happened in the two cases that have gone to trial here at Gitmo. Prosecution and defense lawyers made arguments about why the sentence should be 15 or 12 years, respectively. The judge told the jurors that in determining the sentence, they could consider the amount of time al-Qosi has already served. (Under a new Obama administration rule enacted this April, the judge can’t give credit for time served — 8 years, 7 months, and 27 days in al-Qosi’s case.) After a brief deliberation, the jury returned a verdict of 14 years. Al-Qosi reportedly showed no emotion when the sentence was read. Not surprising, since he probably knew he’s headed in home in two years, not 14.

This charade was a win-win situation for the Obama administration. News articles with the headline “Al Qaeda Cook Gets 14 Years” were splashed across the Internet and print media, and the administration avoids criticism for sentencing their first convicted Gitmo detainee to only two more years in prison.

While an election-year charade that conceals a detainee’s true sentence may serves the administration’s political goals, it is galling from a president who promised transparency . Even the Bush administration didn’t conceal Salim Hamdan ‘s 2008 sentence of five months beyond time served.

The farce that was al-Qosi’s sentencing hearing brings to mind a hand-written statement that Omar Khadr read to the court in July, in which he announced that he had rejected a secret plea deal. He said the military commissions are not fair or seeking justice, but rather are

“…to accomplish political and public goal and what I mean is when I was offered a plea bargain it was up to 30 years which I was going to spend only 5 years so I asked why the 30 years? I was told it make the U.S. government look good in the public eyes and other political causes.”

Welcome to the Obama military commissions, where sentences are made secret to silence critics, and guilty pleas are secured with the threat that detainees won’t get credit for eight-plus years of pretrial detention if they go to trial.

I guess this is what passes for justice at Guantánamo.

(Originally posted on Daily Kos.)