al Odah v. United States (D.C. Cir. June 30, 2010) (affirming denial of habeas)

July 8, 2010

* al Odah v. United States (D.C. Cir. June 30, 2010)

A DC Circuit panel (Sentelle, joined by Rogers and Garland), has affirmed denial of habeas relief to Fawzi Khalid Abdullah Fahad al Odah. Citing the earlier Circuit decisions in al Bihani and Awad, the panel rejected al Odah’s argument that the district court erred by holding the government only to a preponderance of the evidence standard and by accepting the general admissibility of hearsay. The panel also concluded that the evidence sufficed to prove that al Odah was “part of” al Qaeda or the Taliban, thus justifying his detention. The panel explained:

Al Odah traveled to Afghanistan on a series of one-way plane tickets purchased with cash in a manner consistent with travel patterns of those going to Afghanistan to join the Taliban and a1 Qaeda. Once in Afghanistan, a1 Odah sought out a Taliban official. This Taliban official led a1 Odah for a month doing we know not what, but culminated in the Taliban official taking a1 Odah to a Taliban-run camp to train on an AK-47 rifle. After the September 11 , 200 1, terrorist attacks, *****Itold a1 Odah where he should go and who he should seek out to help him. A1 Odah did what *******Irecommended to him. He gave up his passport and other possessions, and obtained an AK-47 rifle, as he stayed with several individuals over several months. He then went on a march through the Tora Bora region for ten days with 150 men, some of whom, including a1 Odah, were armed. This march was attacked by US and allied warplanes.

A1 Odah attempts to rebut the government’s case only by presenting a gloss of innocent activity over several of the undisputed facts. The district court considered all the evidence, rejected a1 Odah’s explanation of the evidence, and held that a1 Odah was “part of’ a1 Qaeda and Taliban forces. There was no error in this finding, under either a de novo or clear error standard of review.

The district court had before it further evidence that supported the correctness of its conclusion. The district court did not need to rely upon this further evidence because of the weight of the other evidence, but it mentioned the existence of the evidence, and we note it to emphasize that it is further support for the district court’s finding.discovered in an a1 Qaeda safehouse. Two other individuals have identified a1 Odah as a Taliban and a1 Qaeda member. All this evidence is above and beyond what is necessary for us to affirm the district court’s coilclusion that a1 Odah was “part of’ a1 Qaeda and Taliban forces.

The district court’s alternative basis for finding that a1 Odah was “part of’ a1 Qaeda and Taliban forces was that he trained at the A1 Farouq training camp. A1 Odah raises several challenges to the factual findings underlying this conclusion by the district court. But as we have upheld the district court’s finding that a1 Odah was “part of’ a1 Qaeda and the Taliban by his activities in Afghanistan separate from the allegations that the camp he attended was A1 Farouq, we do not need to consider this issue. Once the government has established by a preponderance of the evidence that a1 Odah was “part of’ a1 Qaeda and Taliban forces, the requirements of the AUMF are satisfied and the government has authority to detain a1 Odah.


United States v. al Qosi (Mil. Com. July 7, 2010) (guilty plea)

July 8, 2010

*United States v. al Qosi (Mil. Com. July 7, 2010)

Ibrahim Ahmed Mahmoud al Qosi has pled guilty in his military commission proceeding to one charge of providing material support to al Qaeda and one charge of providing material support to terrorism.

Details from the press release appear below:

The Department of Defense announced that Ibrahim Ahmed Mahmoud al Qosi, 50, pleaded guilty today in a military commission to providing material support to al Qaeda and conspiring to commit terrorism and material support to terrorism. His sentence will be determined at a hearing in August.

Responding to questions from the Military Judge, al Qosi admitted that he engaged in hostilities against the United States in violation of the laws of war. Al Qosi said under oath that he intentionally supported al Qaeda in hostilities against the United States since at least 1996, when Usama bin Laden issued an order urging his followers to commit acts of terrorism against the United States. In 1996, al Qosi followed bin Laden to Afghanistan. For the next six years he provided logistical support to Usama bin Laden and al Qaeda at al Qaeda compounds in Afghanistan.

During questioning under oath, al Qosi admitted that while he provided logistical support, he knew al Qaeda engaged in acts of terrorism. He admitted that he knew that al Qaeda was and is recognized around the world as an international terrorist organization.

Al Qosi was questioned by the Military Judge, Air Force Lt. Col. Nancy Paul, during a hearing at Guantanamo Bay, Cuba. Three of his six attorneys – representing him at no cost to him – assisted him. In all cases tried by military commission, the Military Judge has a duty to inquire into the voluntariness of the plea before accepting a guilty plea. In this case, the Military Judge questioned al Qosi at length and then indicated she was satisfied that the accused understood his rights, that the plea was voluntary, and that there was a factual basis for the plea. This requirement safeguards the rights of the accused.

In all military commissions, a panel of military officers known as “members” determines the sentence, regardless of whether the plea was guilty or not guilty. While the military judge determines whether the accused understands the charges to which he pleads guilty and that his plea is voluntary, the members decide the appropriate sentence. At a hearing scheduled for August, the defense and prosecution will each have an opportunity to present evidence and argument to the members to aid them in determining a sentence.

A link to al Qosi’s list of charges can be viewed on the Military Commissions web site at http://www.defense.gov/news/d20080305alqosicharges.pdf.