United States v. al Qosi (Mil. Com. Dec. 3, 2009)
In a four-page opinion, Judge Paul partially granted and partially denied the government’s motion in to amend the charges against al Qosi. In brief, the government sought to make two changes to the existing charges against al Qosi.
First, it sought to change the terminology used to describe his status from “unlawful enemy combatant” to “unprivileged enemy belligerent,” as the latter terminology is now the governing standard for personal jurisdiction in the commission system pursuant to the MCA 2009. The judge granted the motion on this point (but see the note below regarding the hearing she ordered on this issue).
Second, the government sought to expand the range of inculpatory conduct alleged against al Qosi in support of the existing charges (basically, expanding the facts to include his alleged role as an al Qa’ida financier in the Sudan in the 1992-1996 period, and also expanding the set of overt acts alleged in support of the conspiracy charge). Judge Paul classified this as a “major change” to the charges, one that cannot be accomplished without withdrawing and re-referring the charges.
In a three-page opinion, Judge Paul also ordered that there be an evidentiary hearing on January 6th, during which the government must prove by a preponderance of the evidence that al Qosi is properly classified as an “unprivileged enemy belligerent.” In the course of the opinion, Judge Paul concluded:
- Army Regulation 190-8 is not the exclusive mechanism for making such determinations, though it “may provide useful guidance”
- personal jurisdiction, when challenged, should be resolved before trial on the merits
- a finding of personal jurisdiction does not preclude the assertion of affirmative defenses, and cannot be dispositive of any element of a charge given the government’s burden to prove such elements beyond a reasonable doubt.
The opinion suggests that the inquiry at the January 9th hearing will be whether the government has adequate proof that al Qosi fits the definition of “unprivileged enemy belligerent” contained in the MCA 2009 (“has engaged in hostilities against the United States or its coalition partners…has purposefully and materially supported [such] hostilities…or…was a part of al Qaeda at the time of the offense alleged…[and does not qualify as a “privileged belligerent” as defined with reference to GPW Article 4’s POW status rules].
Kudos to the Miami Herald for making these documents available to the public quickly.