Military Commission Panel Sentences Guantanamo Detainee

By Cheryl Pellerin

American Forces Press Service

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.

“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.”