No Comment — August 12, 2010, 2:21 pm

Prosecutorial Flim-Flam at Gitmo

The military commissions are back underway at Guantánamo, and so far the Obama Administration proceedings look an awful lot like the end-phase proceedings under Bush. The process started with the sentencing of Ibrahim Ahmed Mahmoud al-Qosi, a 50-year-old Sudanese man accused of having served as chef, chauffeur, and bodyguard to Osama bin Laden.

“Jury recommends 14 years for al Qaeda cook” trumpets the AP headline. So al-Qosi gets a stiff sentence for preparing humus for the world’s most wanted terrorist, right? Wrong. Things have been carefully orchestrated to give that appearance. The prosecution was able to rehearse its charges, talk loudly about al-Qosi’s guilty plea, read a confession that was in all likelihood ghost-written, and parade a stiff sentence before the cameras. But al-Qosi will not be serving fourteen years in prison. In fact, in all likelihood, he will be back home in Sudan in no time.

The Arabic-language satellite news network Al Arabiya reported last month that the plea bargain reached in al-Qosi’s case would require him to serve not more than two years in prison. Multiple sources who have examined the plea bargain agreement have confirmed to me that the Al Arabiya report is accurate. They also noted that the military commissions panel would not be apprised of this arrangement, but rather would be asked to set a sentence between 12 to 15 years (as in fact occurred). The final sentence will be imposed by the convening authority sometime in the fall. The convening authority is bound by the plea bargain, and thus will impose the two-year sentence. Only then will the actual sentence become public. As Al Jazeera has reported, al-Qosi will be permitted to serve any sentence in a communal-living area of Guantánamo reserved for “compliant” prisoners.

You can count on it that the convening authority will not get around to announcing the actual sentence until sometime after the midterm elections in November.

The plea bargain seems perfectly sensible. The prosecution had good evidence for al-Qosi’s involvement with al Qaeda, although he played a consistently minor role. Moreover, al-Qosi has been in prison since December 2001, and eleven years is a long time to spend in stir for working as a cook for a terrorist. Consider, by comparison, what transpired with Hitler’s chef, Wilhelm Lange, at the end of World War II. He was held briefly in investigatory detention, asked questions, and required to fill out the U.S. military’s exhaustive questionnaire. Then he was set free. The man who cooked the Führer’s vegetarian delight was not a major target.

The cases of al-Qosi and child warrior Omar Khadr, now underway, highlight America’s current prosecutorial dilemma. Any prosecutor worth his salt would want to start the process just as Justice Jackson did at the end of World War II: with high-profile targets against whom powerful evidence has been assembled. But nine years after 9/11, Osama bin Laden and Ayman al-Zawahiri remain at large. Thus the world is shown not the mastermind of a heinous crime but a short-order cook and a 15-year-old child who offers credible evidence that he was tortured in U.S. custody. The spectacle is so pathetic that we can understand why those running it want to turn to carnival tricks to conceal the unseemly reality.

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