By Devon Chaffee, Advocacy Counsel, Human Rights First
Today military judge Lt. Col. Nancy J. Paul ruled on two motions in the case of Ibrahim Ahmed Mahmoud al Qosi, bringing his case one step closer to trial before a military commission at Guantanamo Bay. In over five years since the prosecution first brought charges against al Qosi, it has yet to clear what Judge Paul described as "the first hurdle in this race"-establishing that the Commission has jurisdiction over the defendant.
Judge Paul began with the prosecution's oral motion to amend the charge sheet against al Qosi to account for new changes to the scope of the Commission's personal jurisdiction. The Military Commissions Act (MCA) of 2009 replaces the term "alien unlawful combatant" with the term "alien unlawful belligerent" and changes the term's definition.
The judge's ruling noted that the prosecution's motion to amend the charges was "an issue of first impression"-as is typical of issues arising before the commissions-because it involved a provision added by the MCA of 2009 that explicitly allows the prosecution to amend existing charges "as needed to properly allege jurisdiction" under the new law.
But Judge Paul refused to allow the bulk of the prosecution's proposed amendments, even under the new provision, finding that they went far beyond what was "needed to allege jurisdiction." The changes would've expanded the timeframe of the charge sheet from five to nine years and included numerous new overt acts. Borrowing from the rules of the well-established courts martial system that don't directly apply to military commissions, Judge Paul concluded that to allow all of the prosecution's proposed amendments would be a "major change" to the charges and would "bring unfair surprise to the accused."