Military Commission Panel Sentences Guantanamo Detainee

NAVAL STATION GUANTANAMO BAY, Cuba, Feb. 18, 2011 — After delib­er­at­ing for five and a half hours, a mil­i­tary com­mis­sion pan­el today sen­tenced Sudanese detainee Noor Uth­man Muhammed to 14 years of con­fine­ment at the deten­tion cen­ter here.
But in accor­dance with a pre­tri­al agree­ment, Noor, as he has asked to be called in court, will serve only 34 months — until Decem­ber 2013 — pro­vid­ed he ful­ly coop­er­ates with the U.S. gov­ern­ment.

Noor Uthman Mohammed
A court­room sketch depicts Sudanese detainee Noor Uth­man Mohammed at his sen­tenc­ing hear­ing at Guan­tanamo Bay, Cuba, Feb. 18, 2011.
DOD sketch by Army Spc. Kel­ly Gary
Click to enlarge

“The pro­tec­tions afford­ed to Noor Uth­man in this mil­i­tary com­mis­sion are unprece­dent­ed in the his­to­ry of mil­i­tary com­mis­sions,” Navy Capt. John Mur­phy, chief pros­e­cu­tor for the Office of Mil­i­tary Com­mis­sions, told reporters after the tri­al.

“They’re robust and impor­tant,” he said, “and they pro­duce results like those we saw today, where an accused admit­ted his guilt and has also agreed to cer­tain pro­vi­sions that will be impor­tant as we go for­ward.”

One such pro­vi­sion is an agree­ment by the detainee to ful­ly coop­er­ate with the U.S. gov­ern­ment, Mur­phy said.

“Full coop­er­a­tion cuts across every aspect of our work — tes­ti­mo­ny, debrief­ing, meet­ing with agents, prepar­ing oth­er cas­es, pro­vid­ing intel­li­gence infor­ma­tion, and also being ful­ly avail­able to assist the gov­ern­ment in any forum,” he said, not­ing that poten­tial forums include fed­er­al court, mil­i­tary com­mis­sions, grand juries, civ­il pro­ceed­ings and oth­ers. If Noor does not coop­er­ate, Mur­phy added, he would face serv­ing the orig­i­nal 14-year sen­tence.

“I’m pleased that we have a sys­tem here that will enable some­one in Noor’s sit­u­a­tion to final­ly bring clo­sure to what’s been a nine-year peri­od of con­fine­ment,” Noor’s defense attor­ney, Howard Cabot, told reporters. The detainee arrived at the deten­tion cen­ter here in August 2002.

“For the first time,” Cabot said, “Noor can now have some cer­tain­ty in his life.”

This is the sixth case to be resolved by mil­i­tary com­mis­sions since the deten­tion cen­ter opened in 2002. Those who have been con­vict­ed here in addi­tion to Noor include David M. Hicks of Aus­tralia, Sal­im Ham­dan of Yemen, Ali Hamza Ahmad Suli­man al Bahlul of Yemen, Ibrahim Ahmed Mah­moud al Qosi of Sudan and Omar Ahmed Khadr of Cana­da.

A freeze on hold­ing new mil­i­tary com­mis­sion tri­als for Guan­tanamo detainees has been in place since Jan­u­ary 2009, when Pres­i­dent Barack Oba­ma took office. As a result, Noor’s is the last case the mil­i­tary com­mis­sions office is free to pros­e­cute for now, Mur­phy said.

In Novem­ber 2009, Attor­ney Gen­er­al Eric Hold­er des­ig­nat­ed three oth­er sus­pect­ed ter­ror­ists to be pros­e­cut­ed in mil­i­tary com­mis­sions. Before it can pro­ceed with the cas­es, though, the office must receive autho­riza­tion from Defense Sec­re­tary Robert M. Gates.

“We have not [yet] tried the most seri­ous detainees in terms of their con­duct. We have not pros­e­cut­ed any high-val­ue detainees in com­mis­sions,” Mur­phy told reporters this week. “That’s not unusu­al in a pros­e­cu­tion,” he added. “Peo­ple at the low­er end of a con­spir­a­cy often aren’t giv­en the biggest sen­tences, but as pros­e­cu­tors move up the pyra­mid and look at more seri­ous indi­vid­u­als, of course, our cal­i­bra­tion in that regard will change.”

Today, accord­ing to Guan­tanamo offi­cials, the cen­ter holds 172 detainees from 24 coun­tries. Of that num­ber, the Oba­ma admin­is­tra­tion has deter­mined that 48 of the detainees “can­not be pros­e­cut­ed [because of a lack of or taint­ed evi­dence], yet pose a clear dan­ger to the Amer­i­can peo­ple,” the pres­i­dent said dur­ing a speech at the Nation­al Archives in Wash­ing­ton in May 2009.

“We are not going to release any­one if it would endan­ger our nation­al secu­ri­ty,” Oba­ma said, “nor will we release detainees with­in the Unit­ed States who endan­ger the Amer­i­can peo­ple.”

Call­ing it the “tough­est sin­gle issue that we will face,” Oba­ma said his admin­is­tra­tion would work with Con­gress to devel­op “clear, defen­si­ble and law­ful stan­dards” for those who “in effect remain at war with the Unit­ed States.”

In the same speech, Oba­ma endorsed the use of mil­i­tary com­mis­sions to pros­e­cute “detainees who vio­late the laws of war.”

In April, Gates signed the lat­est edi­tion of the Man­u­al for Mil­i­tary Com­mis­sions, amend­ed by the Mil­i­tary Com­mis­sions Act of 2009. The 2006 ver­sion of the act was revised, Oba­ma said, “to bring the com­mis­sions in line with the rule of law.”

Two days after his inau­gu­ra­tion, Oba­ma announced that with­in a year he would close the deten­tion cen­ter here, but clo­sure has been ham­pered by polit­i­cal resis­tance and most recent­ly by pro­vi­sions in the 2011 Defense Autho­riza­tion Bill that pre­vent the trans­fer of Guan­tanamo detainees to the U.S. main­land and oth­er coun­tries.

“Despite my strong objec­tion to these pro­vi­sions, which my admin­is­tra­tion has con­sis­tent­ly opposed, I have signed this act because of the impor­tance of autho­riz­ing appro­pri­a­tions for, among oth­er things, our mil­i­tary activ­i­ties in 2011,” Oba­ma said in a Jan. 7 state­ment.

“Nev­er­the­less,” he added, “my admin­is­tra­tion will work with Con­gress to seek repeal of these restric­tions, will seek to mit­i­gate their effects, and will oppose any attempt to extend or expand them in the future.”

Dur­ing a Feb. 17 Sen­ate Armed Ser­vices Com­mit­tee hear­ing, Gates con­firmed that about 25 per­cent of detainees who are trans­ferred out of Guan­tanamo are thought to re-engage in hos­tile actions against the Unit­ed States and its allies.

As of Oct. 1, 598 detainees had been trans­ferred out of Defense Depart­ment cus­tody at Guan­tanamo, DOD spokes­woman Army Lt. Col. Tanya Brad­sh­er told Amer­i­can Forces Press Ser­vice.

Of that num­ber, the intel­li­gence com­mu­ni­ty assess­es that 81 are con­firmed and 69 are sus­pect­ed of re-engag­ing in ter­ror­ist or insur­gent activ­i­ties after trans­fer, she said.

At the Sen­ate hear­ing, Gates said the Unit­ed States “has been very selec­tive in terms of return­ing peo­ple, [but] … we’re not par­tic­u­lar­ly good at pre­dict­ing which returnee will be a recidi­vist.”

The Nation­al Defense Autho­riza­tion Act of 2011 “impos­es some addi­tion­al restric­tions on who we can release, and Con­gress put me in the uncom­fort­able posi­tion of hav­ing to cer­ti­fy peo­ple who get returned — that they are no longer a dan­ger,” he added. “So … that rais­es the bar very high as far as I’m con­cerned.”

Gates said the ques­tion of where to hold high-val­ue indi­vid­u­als who might be cap­tured in the future, espe­cial­ly if the Guan­tanamo deten­tion cen­ter is closed, is unre­solved.

“If we cap­ture them out­side of areas where we are at war that are not cov­ered by exist­ing war autho­riza­tions, one pos­si­bil­i­ty is for such a per­son to be put in the cus­tody of their home gov­ern­ment,” he said.

“Anoth­er pos­si­bil­i­ty is that we bring them to the Unit­ed States,” he added. “After all, we’ve brought a vari­ety of ter­ror­ists to the Unit­ed States and put them on tri­al in Arti­cle III courts here over the years. But it will be a chal­lenge.”

Fed­er­al courts estab­lished under Arti­cle III of the U.S. Con­sti­tu­tion include the Supreme Court, appel­late courts, dis­trict courts and the Court of Inter­na­tion­al Trade.

Gates said new detainees are not being sent to Guan­tanamo “at this point” and that the cen­ter is unlike­ly to close, at least for now.

“The prospects for clos­ing Guan­tanamo, as best I can tell, are very, very low,” he said, “giv­en very broad oppo­si­tion to doing that here in the Con­gress.”

U.S. Depart­ment of Defense
Office of the Assis­tant Sec­re­tary of Defense (Pub­lic Affairs)

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