By Peter Finn
Washington Post Staff Writer
Monday, August 9, 2010; 6:57 PM
GUANTANAMO BAY, CUBA -- A former cook for Osama bin Laden's entourage in Afghanistan has reached a agreement with the U.S. government that will allow him to serve any sentence at a minimum-security facility at Guantanamo Bay, according to statements by lawyers at a military commission on Monday.
Ibrahim al-Qosi, a 50-year-old native of Sudan, who worked for bin Laden for years before the Sept. 11, 2001, attacks, pleaded guilty last month to conspiracy and material support for terrorism as part of a pre-trial agreement. The case marked the first conviction at Guantanamo Bay under President Obama, whose administration had promised that reformed military commissions would offer greater due process and more transparency.
But the government and the defense, with the blessing of Judge Nancy J. Paul, an Air Force lieutenant colonel, have sealed the newly reached agreement, including the maximum sentence that Qosi can serve.
A spokesman for the military commission's prosecutors, Navy Capt. David Iglesias, refused to discuss the agreement or explain why it was kept secret, except to say the plea raises "security issues" and is to the benefit of both Qosi and the government.
Iglesias said Qosi's period of confinement would be made public after military officials review the record of trial, a process that he said could take several weeks. Another military official said the process could take several months.
A military defense lawyer would not discuss the agreement.
The sealed agreement is "certainly a novelty to me," said Gary Solis, a former military judge who has presided over more than 700 court martials. Solis, who teaches law of war at Georgetown University and is observing the commissions for the National Institute of Military Justice, said there was obviously a quid pro quo that led both prosecution and defense to agree to it.
Only three detainees were convicted at Guantanamo under the Bush administration, and two of those have since been released. Qosi was among the first four detainees charged before a military commission when charges were brought against him in 2004. Prosecutors alleged at that time that Qosi had managed charitable donations for al-Qaeda and a bin Laden-owned company.
Those allegations were dropped when Qosi was recharged in 2007. At a hearing in December, prosecutors appeared to want to reintroduce some of those allegations, but the judge said they would have to withdraw all charges and re-file the case to do so. The government went ahead with the existing allegations that Qosi was a cook and driver for al-Qaeda.
The trial of Omar Khadr, the youngest detainee at Guantanamo, is scheduled to start later this week. Khadr, a Canadian citizen, was 15 years old when he was captured in 2002. He is accused of murder, among other war crimes, by the government, which alleges he threw a grenade that killed a U.S. Special Forces medic during a firefight in southern Afghanistan.
In a significant victory for the government in the Khadr case, Judge Pat Parrish, an Army colonel, said the government can use as evidence a series of self-incriminating statements made by Khadr while in detention at Bagram air base and Guantanamo Bay. His lawyers had argued that the statements were the result of torture, or cruel, inhuman or degrading treatment, and should be suppressed. The judge also admitted a videotape showing Khadr among a group of men building home-made bombs.
Jury selection will begin Tuesday in the Khadr case.
A jury of at least five military officers will be selected in Qosi's case. The judge and lawyers Monday began questioning a panel of 15 officers, five women and 10 men, whose names are protected. They were questioned about things such as their service, if they knew anyone killed or injured on Sept. 11, 2001, and if they knew and had opinions about Arabs or Muslims.
Both the defense and the prosecution are allowed to strike one juror each, and the court can dismiss any number if the judge believes they cannot act impartially.
The Qosi panel is ostensibly to hear evidence and determine a sentence for him. But if they impose a prison sentence that exceeds the sentence laid out in the plea agreement, it will be moot, unless Qosi breaks the agreement. A military lawyer said in court Monday that Qosi has met all of his obligations under the pact.
Iglesias also refused to say whether the government has guaranteed Qosi that he will be repatriated to Sudan after he serves any sentence. The Obama administration, much like the Bush administration, asserts a right to detain what it calls "unprivileged belligerents" under the laws of war, a claim that is independent of any military commission finding.
If the military jury comes back with a lesser sentence, the "Convening Authority," the Pentagon official who refers cases for prosecution, can reduce Qosi's sentence, officials said.
Al-Arabyia, a 24-hour Arab news network based in Dubai, cited anonymous sources to report last month that the plea agreement calls for a two-year sentence.
In court Monday, Paul said the relevant officials at the Defense Department should ensure that Qosi serves any time he gets at Camp 4 -- a minimum-security facility at Guantanamo Bay where detainees live in communal quarters -- unless the military detention center at Guantanamo is closed. If that happens, and it appears unlikely as the Obama administration's efforts to close Guantanamo have stalled, Qosi will be moved to a similar prison facility that also offers communal living. If the government fails to live up to the deal, Paul said she will invalidate the guilty plea.
One of Qosi's attorneys had asked the judge to order confinement at Camp 4 after it became clear that officials at the Defense Department had not yet sanctioned Qosi's confinement there, despite the plea agreement. Pentagon policy had stated that detainees convicted in a military commission should be kept in isolation from other detainees.
In the past, defense officials have said that the Geneva Conventions do not allow convicts to be in the same facility as detainees.
Qosi agreed to a statement of facts that he followed bin Laden from Sudan to Afghanistan in 1996. Qosi said that he served as a head cook at an al-Qaeda compound in Kandahar. After the Sept. 11 attacks, Qosi fled to Pakistan, where he was picked up the local authorities and handed over to American officials. He has been held at Guantanamo for more than eight years.