Qosi v. United States

462 F.Supp.3d 1181

Ibrahim Ahmed Mahmoud AL QOSI, Appellant

v.UNITED STATES, Appellee

CMCR 17-001

United States Court of Military Commission Review.

May 21, 2020

On briefs for appellant were Mary R. McCormick and Suzanne Lachelier.

On brief for appellee were Michael J. O'Sullivan and Brigadier General Mark S. Martins.

BEFORE THE COURT Pollard, Presiding Judge; Lewis; and Tang, Judges

PUBLISHED OPINION OF THE COURT

Opinion for the Court Pollard, Presiding Judge:

Once more, difficult questions of first impression confront us. Before taking up the merits of appellant Ibrahim Ahmed Mahmoud Al-Qosi's appeal seeking to overturn his conviction, we must decide two preliminary questions.¹ First, what is the extent, if at all, to which our inherent powers permit us to dismiss or abate Al-Qosi's appeal if he (a) is an alien unprivileged enemy belligerent currently engaged in hostilities against the United States and/or its coalition partners or (b) cannot be made to respond to any judgment we may render, or both? Second, if we have such inherent powers, and the factual record would support our use of these powers, should we exercise them?

There is a major impediment, however, to reaching these threshold questions and to even hearing an appeal. On the record before us, we cannot say that Al-Qosi has authorized any appeal or that defense counsel who seek to represent him are authorized to do so regarding an appeal and related proceedings. Until defense counsel can satisfactorily establish that Al-Qosi has authorized an appeal and has authorized specific counsel to represent him in that appeal and related matters, this case may not go forward.

Accordingly, for the reasons set forth in this order, the proceeding before us and all related matters are abated until defense counsel can demonstrate that Al-Qosi has (a) actual notice of these proceedings, (b) authorized an appeal and (c) authorized specific counsel to represent him in the matters pending before the Court, including any future DuBay or other hearings.²

BACKGROUND

In 2010, Al-Qosi pleaded guilty to, and was convicted of, one specification of "conspiracy to commit terrorism and provide material support for terrorism, and ... [one specification] of providing material support to al Qaeda, a terrorist organization, in violation of 10 U.S.C. §§ 950t(29) and 950t(25) (2009)." United States v. Al-Qosi , 28 F. Supp. 3d 1198, 1200 (CMCR 2014). On August 11, 2010, the military commission sentenced Al-Qosi to confinement for fourteen years. Id . On February 3, 2011, the Convening Authority approved his sentence and, in compliance with his written pretrial agreement, suspended execution of all confinement in excess of two years from July 7, 2010. Id. ; Convening Auth. Action (Feb. 3, 2011). At this point, Al-Qosi's conviction was final at the trial level, unless he timely requested a new trial.

Al-Qosi waived his right to appeal in his pretrial agreement. See Order 1 (CMCR Mar. 11, 2017); Al-Qosi , 28 F. Supp. 3d at 1201. On the day he was sentenced, Al-Qosi executed a written waiver of appellate rights. Appellant Br. 3 (Feb. 13, 2017). The Convening Authority did not refer his case to this Court for automatic review pursuant to 10 U.S.C. § 950c(a) because of the waiver. Order 1 (CMCR Mar. 11, 2017). There is no evidence, however, that Al-Qosi filed with the Convening Authority the written waiver of his appellant rights "within ten days following the convening authority's action on his case, as required by 10 U.S.C. § 950c(b)(3)." Al-Qosi , 28 F. Supp. 3d at 1202. On July 10, 2012, upon his release from confinement, "Al Qosi was transferred to his native Sudan." Id. at 1200 ; see Tr. 45 (First DuBay July 12, 2017). As discussed below, his current whereabouts are unknown.

In February 2017, nearly five years later, two lawyers detailed by the Chief Defense Counsel (CDC), Military Commissions Defense Organization (MCDO), Suzanne M. Lachelier and Mary R. McCormick, filed a brief seeking to appeal Al-Qosi's conviction, asking this Court to vacate the judgment entered by the commission. Appellant Br. (Feb. 13, 2017); Order 1 (CMCR Mar. 11, 2017). His lawyers argue that (a) his waiver of appeal is ineffective and, as such, the Convening Authority was required to refer Al-Qosi's conviction to this Court and (b) we are now required to hear and decide his appeal under 10 U.S.C. § 950f. See Appellant Br. 5-6 (citing 10 U.S.C. § 950c ). We sua sponte raised several issues that must be resolved before deciding whether to take up the proffered appeal; two concerned defense counsel.

First, is there an attorney-client relationship between Al-Qosi and the detailed lawyers, Ms. Lachelier and Ms. McCormick?³ See Order 3 (CMCR Mar. 11, 2017). Second, has Al-Qosi authorized the appeal? Id. We subsequently found that Ms. Lachelier has an attorney-client relationship with Al-Qosi based, in part, on her representations in a declaration filed ex parte, which discussed conversations Ms. Lachelier had with Al-Qosi between 2010 and 2012 that counsel identified as partially privileged.⁴ Order 1 (CMCR June 19, 2017); see Lachelier Decl. (redacted) (Mar. 23, 2017). We deferred, however, addressing whether Al-Qosi has authorized the appeal that counsel seeks to prosecute. Order 2 (CMCR June 19, 2017).

In our March 2017 order, we also wrote the press had reported that "since his release in 2012, al Qosi ha[d] joined Al-Qaida of the Arabian Peninsula and [ ] urged attacks on the United States." Order 2 (CMCR Mar. 11, 2017). We noted that if the reports were true, the Court would need to address "[w]hat impact any post-release participation in hostilities against the United States or its coalition partners, if any, may have on the instant appeal." Id.

In June 2017, we ordered a DuBay hearing (first DuBay hearing) "to make findings of fact and conclusions of law regarding whether (a) al Qosi is currently an unprivileged enemy belligerent, and (b) under present circumstances whether al Qosi can be made to respond to any judgment that the Court may render in response to his appeal." Order 3 (CMCR June 19, 2017). We ordered this hearing to create a competent factual record upon which we could address "what inherent power this Court may or may not have [to abate or dismiss] al Qosi's appeal if he is an unprivileged enemy belligerent (as the Government contends), or [if he] cannot be made to respond to this Court's judgment." Id. at 2.

We emphasize that we have made no decisions regarding whether this Court must hear Al-Qosi's appeal, if properly before us, or whether we have discretion to dismiss or abate any appeal.⁵

The military judge terminated the first DuBay hearing at its inception. Tr. 60 & AE 018 (First DuBay ). Ms. Lachelier had asserted a conflict that precluded her from participating as counsel in the hearing. Tr. 37-38 (First DuBay ). The CDC then detailed new lawyers to represent Al-Qosi at the hearing. Order 2 (CMCR Dec. 14, 2018). The military judge properly found that there was no attorney-client relationship between Al-Qosi and the new lawyers. Id. (citing AE 018 at 5). Therefore, the new lawyers could not represent Al-Qosi, and the hearing ended. Id. ; AE 018 at 5-6.

We then entered an order in December 2018 directing Ms. Lachelier, Ms. McCormick, or counsel detailed for the purposes of our December order, "to make all reasonable attempts to contact Al Qosi" to determine his wishes regarding who, if anyone, should represent him regarding the DuBay hearing. Order 2-3 (CMCR Dec. 14, 2018). In response to our order, Ms. Lachelier requested assistance from the government. Appellant Status Rep. (Jan. 28, 2019). The Office of the Chief Prosecutor responded by providing instructions for access to a classified document (AE 014A) available to the defense but offered that efforts to contact Al-Qosi would be futile. Id. at Attach. A. Ms. Lachelier provided no further information about her attempts to contact Al-Qosi; rather, she stated she was ready to authorize Ms. McCormick, as associate counsel, to represent Al-Qosi at a new DuBay hearing. See id. at 2. Our order directing a second DuBay hearing followed. Order 1-2 (CMCR Feb. 13, 2019). Defense counsel, however, objected to the hearing going forward. They argued that Al-Qosi was entitled to "sufficient notice" of the hearing and that the government was obligated to "prov[e his] voluntary absence" from sessions that involved the issues raised by our Order. AE 009A at 1.

After the hearing, the military judge made findings of fact and conclusions of law. See AE 43. In our August 22, 2019, order, we summarized them as follows:

The military judge first held that Al Qosi was entitled to notice of the DuBay hearing and to either attend or waive his attendance. AE 43 at 9-12. He found that Al Qosi was not given "proper notice," id. at 12, nor did he waive his right to attend the hearing, id. at 11-12. The military judge concluded "there was no immediate legal or statutory authority to conduct the hearing in [Al-Qosi's] absence." Id. at 12. Rather than end the opinion at this point, the military judge proceeded to answer the questions we specified to avoid "protract[ing] the already deliberate appellate process should [our Court] differ with this Commission's analysis" of Al Qosi's right to attend the hearing. Id. at 12.

The military judge took judicial notice that Al Qosi currently is a "non-resident alien," id. at 3, and found that he is an "unprivileged enemy belligerent," id. at 14. He also "took judicial notice ... [that] the U.S. Secretary of State has designated al Qaeda in the Arabian Peninsula (AQAP) as a Foreign Terrorist Organization ...," id. at 3, and found that AQAP is "a Yemen-based al Qaeda affiliate," id. at 6. The military judge further found that the evidence established:

Mr. al Qosi is part of al Qaeda and has purposefully and materially supported al Qaeda by, inter alia : (1) recruiting for AQAP; (2) encouraging lone-wolf attacks against the United States and

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