By Peter Finn
Tuesday, August 10, 2010; A04
GUANTANAMO BAY, CUBA -- A former cook for Osama bin Laden's entourage in Afghanistan has reached an 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 pretrial agreement. The case marked the first conviction at Guantanamo Bay under President Obama, whose administration 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 sealing of the agreement is "certainly a novelty to me," said Gary Solis, a former military judge who has presided over more than 700 courts-martial. Solis, who teaches the laws of war at Georgetown University and is observing the commissions for the National Institute of Military Justice, said that there was clearly a quid pro quo that led both the prosecution and defense to agree to it.
Only three detainees were convicted at Guantanamo under the George W. Bush administration, and two of those have been released. Qosi was among the first four detainees to be charged before a military commission when charges were brought against him in 2004.
In a separate case, the trial of Omar Khadr, the youngest detainee at Guantanamo, is scheduled to start 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 that 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 in Afghanistan and Guantanamo Bay. Khadr's 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 homemade bombs.
In Qosi's case, a jury of at least five military officers will be selected to hear evidence and determine a sentence for him. But if the jury imposes a prison sentence that exceeds the sentence laid out in the plea agreement, it will be moot, unless Qosi breaks the agreement.
Al-Arabiya, a 24-hour Arab news network based in Dubai, in the United Arab Emirates, cited anonymous sources to report last month that the plea agreement calls for a two-year sentence.
In court Monday, Judge Paul said the relevant officials at the Defense Department should ensure that Qosi serves any time he receives 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.
In the past, defense officials have said that the Geneva Conventions do not allow detainees to be held in the same facility as convicts.