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Lawyers Press Pentagon To Abide by Detainee Deal Lawyers Press Pentagon to Abide by Detainee Deal
(35 minutes later)
WASHINGTON — Lawyers for a detainee at Guantánamo Bay, Cuba, who is scheduled to be transferred out of the prison in December under a 2011 plea deal have asked a judge to order the Pentagon to live up to its agreement, recently unsealed tribunal papers show.WASHINGTON — Lawyers for a detainee at Guantánamo Bay, Cuba, who is scheduled to be transferred out of the prison in December under a 2011 plea deal have asked a judge to order the Pentagon to live up to its agreement, recently unsealed tribunal papers show.
The circumstances of the unusual request are raising new legal quandaries about the tribunal court system. The specter that the detainee may not be released threatens to undermine the ability of prosecutors to persuade other detainees to plead guilty — and to cooperate by serving as witnesses in more important cases — in exchange for a definitive date by which they would be allowed to leave the prison. The circumstances of the unusual request are raising new legal quandaries about the tribunal court system. The possibility that the detainee may not be released threatens to undermine the ability of prosecutors to persuade other detainees to plead guilty — and to cooperate by serving as witnesses in more important cases — in exchange for a definitive date by which they would be allowed to leave the prison.
The dispute centers on Noor Uthman Muhammed, a Sudanese man who pleaded guilty to conspiracy and providing material support to terrorism in early 2011 before a military commission. Under the terms of his arrangement, he was to serve an additional 34 months on top of the nine years he had already been imprisoned as a wartime detainee, which would position him to be repatriated in December.The dispute centers on Noor Uthman Muhammed, a Sudanese man who pleaded guilty to conspiracy and providing material support to terrorism in early 2011 before a military commission. Under the terms of his arrangement, he was to serve an additional 34 months on top of the nine years he had already been imprisoned as a wartime detainee, which would position him to be repatriated in December.
But Mr. Noor’s lawyers said that the Pentagon official who oversees the tribunal system, known as the convening authority, had yet to officially approve the final disposition of his case, even though it essentially wrapped up two years ago. They contend that the official’s approval is necessary to set in motion the time-consuming bureaucratic and diplomatic process of repatriating Mr. Noor.But Mr. Noor’s lawyers said that the Pentagon official who oversees the tribunal system, known as the convening authority, had yet to officially approve the final disposition of his case, even though it essentially wrapped up two years ago. They contend that the official’s approval is necessary to set in motion the time-consuming bureaucratic and diplomatic process of repatriating Mr. Noor.
“Noor has kept both the letter and spirit of his promises under the plea agreement, but the government has not,” the filing says. “More than two years have passed since the written plea agreement was signed by the government, and yet the convening authority continues to delay in carrying out the procedural steps necessary to pave the way for Noor’s release and repatriation. As a matter of contract law and basic fairness, the plea agreement between Noor and the government should be enforced.”“Noor has kept both the letter and spirit of his promises under the plea agreement, but the government has not,” the filing says. “More than two years have passed since the written plea agreement was signed by the government, and yet the convening authority continues to delay in carrying out the procedural steps necessary to pave the way for Noor’s release and repatriation. As a matter of contract law and basic fairness, the plea agreement between Noor and the government should be enforced.”
Paul L. Oostburg Sanz, the general counsel for the Navy, is temporarily serving as the convening authority. He took over on an interim basis after the previous officeholder, Bruce E. MacDonald, a retired vice admiral, completed a three-year term in March.Paul L. Oostburg Sanz, the general counsel for the Navy, is temporarily serving as the convening authority. He took over on an interim basis after the previous officeholder, Bruce E. MacDonald, a retired vice admiral, completed a three-year term in March.
The terms of the deal also required Mr. Noor to serve as a witness against other detainees, if called to do so, during his 34 months in custody. Admiral MacDonald agreed to recommend Mr. Noor’s transfer, but he emphasized that there was “no guarantee” that his recommendation would be taken.The terms of the deal also required Mr. Noor to serve as a witness against other detainees, if called to do so, during his 34 months in custody. Admiral MacDonald agreed to recommend Mr. Noor’s transfer, but he emphasized that there was “no guarantee” that his recommendation would be taken.
A military spokesman who was asked about the filing pointed to tribunal rules suggesting that the relief Mr. Noor’s lawyers were seeking — an order from a tribunal judge requiring the convening authority to take action — may not be possible because the convening authority himself, not the commission, now has jurisdiction over the matter.A military spokesman who was asked about the filing pointed to tribunal rules suggesting that the relief Mr. Noor’s lawyers were seeking — an order from a tribunal judge requiring the convening authority to take action — may not be possible because the convening authority himself, not the commission, now has jurisdiction over the matter.
A lawyer for Mr. Noor, Howard Cabot, said he was also considering asking a civilian judge to order the military to release his client after the 34 months are up.A lawyer for Mr. Noor, Howard Cabot, said he was also considering asking a civilian judge to order the military to release his client after the 34 months are up.
According to a document that Mr. Noor signed as part of his plea agreement, he left his native Sudan in 1994 and traveled to Afghanistan, where he received paramilitary training at the Qaeda camp known as Khalden, and he eventually became a trainer and part-time administrator there. Later, he fled to a safe house in Pakistan linked to Abu Zubaydah, suspected of being a terrorist facilitator. Mr. Noor said he was not a member of Al Qaeda, and he has not been linked to any specific terrorist attack.According to a document that Mr. Noor signed as part of his plea agreement, he left his native Sudan in 1994 and traveled to Afghanistan, where he received paramilitary training at the Qaeda camp known as Khalden, and he eventually became a trainer and part-time administrator there. Later, he fled to a safe house in Pakistan linked to Abu Zubaydah, suspected of being a terrorist facilitator. Mr. Noor said he was not a member of Al Qaeda, and he has not been linked to any specific terrorist attack.
A series of legal complexities have arisen since Mr. Noor’s plea deal. Among them, a federal appeals court vacated the convictions of two other detainees on the grounds that tribunals could not bring the charges of conspiracy and material support — the same charges to which Mr. Noor pleaded guilty — because they were not recognized war crimes in international law.A series of legal complexities have arisen since Mr. Noor’s plea deal. Among them, a federal appeals court vacated the convictions of two other detainees on the grounds that tribunals could not bring the charges of conspiracy and material support — the same charges to which Mr. Noor pleaded guilty — because they were not recognized war crimes in international law.
Moreover, in December, Congress eliminated an exception for pretrial agreements in the restrictions it has imposed on transfers of Guantánamo Bay detainees. One of those restrictions bars any transfer to nations designated as state sponsors of terrorism, like Sudan. While the Pentagon can waive some restrictions on a case-by-case basis, it cannot waive that one.Moreover, in December, Congress eliminated an exception for pretrial agreements in the restrictions it has imposed on transfers of Guantánamo Bay detainees. One of those restrictions bars any transfer to nations designated as state sponsors of terrorism, like Sudan. While the Pentagon can waive some restrictions on a case-by-case basis, it cannot waive that one.
Complicating matters, a “continuing resolution” spending bill later resurrected an older version of the transfer restrictions, which included the previous exception for pretrial agreements. But that language will expire after September, when the fiscal year ends.Complicating matters, a “continuing resolution” spending bill later resurrected an older version of the transfer restrictions, which included the previous exception for pretrial agreements. But that language will expire after September, when the fiscal year ends.
Mr. Noor, one of five detainees who pleaded guilty before the tribunals, is not the first whose transfer has run into turbulence. A Canadian detainee, Omar Khadr, signed a plea deal that suggested he could be sent to Canada after November 2011 to serve the rest of his sentence. A series of delays, however, kept Mr. Khadr at Guantánamo until September 2012.Mr. Noor, one of five detainees who pleaded guilty before the tribunals, is not the first whose transfer has run into turbulence. A Canadian detainee, Omar Khadr, signed a plea deal that suggested he could be sent to Canada after November 2011 to serve the rest of his sentence. A series of delays, however, kept Mr. Khadr at Guantánamo until September 2012.
Mr. Khadr was the last detainee to leave the prison, where a major hunger strike protest broke out earlier this year.Mr. Khadr was the last detainee to leave the prison, where a major hunger strike protest broke out earlier this year.