UNITED STATES
COURT OF MILITARY COMMISSION REVIEW

IBRAHIM AHMED MAHMOUD
AL QOSI,
Petitioner
v.
UNITED STATES,
Respondent

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ORDER

CMCR Case NO. 17-001

June 19, 2017

BEFORE:
P OLLARD , P RESIDING J UDGE
H ERRING , C ELTNIEKS , J UDGES

By order dated March 11, 2017, we asked counsel to address two matters.
First, we asked appointed defense counsel who seek to appeal Ibrahim al Qosi’s
conviction to establish that (a) they had a current and valid attorney-client
relationship with al Qosi and (b) al Qosi had authorized them to proceed with the
instant appeal.
Second, we asked the Government to state whether it contends that al Qosi
is an enemy belligerent, privileged or unprivileged, currently or at any time since
his 2012 release and repatriation to the Sudan, and the factual basis for the
Government’s contention.
On March 23, 2017, counsel, as directed, submitted responses to our
questions. Based on statements made by Suzanne Lachelier, Esq., in her
declaration, we conclude she has made a sufficient showing that she has an
attorney-client relationship with al Qosi. As such, Ms. Lachelier also has the
authority to associate Mary R. McCormick, Esq., as her co-counsel. To be clear,
Ms. McCormick’s authority to act as counsel is derivative of Ms. Lachelier’s. 1
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W ith our pe r mis s ion, Ms . La che lie r f iled h er d ec lar a tion e x par te and und er s ea l. W e f ind
th a t p ar t of wh a t Ms . L ac he lier s aid is pr iv ileged, and it w ill r e ma in und er se a l. Th ere a re
o th er p ar ts of h er de c lar a tion th a t w e do no t be liev e ar e pr iv ileged and shou ld b e a p ar t of
th e pub lic re cord . Th e C le rk of th e Cour t is d ire c ted to prov id e d efen se couns e l with a

1

 For now, we defer ruling on whether defense counsel has established that al Qosi
authorized them to proceed with the instant appeal.
In its filing, the Government contends al Qosi currently is an unprivileged
enemy belligerent. To support its contention, the Government relies primarily, if
not completely, on hearsay. Whether al Qosi is, in fact, an unprivileged enemy
belligerent currently engaged in hostilities against the United States or its
coalition partners needs to be answered before we move forward with this case.
His status as an unprivileged enemy belligerent, or if he cannot be made to
respond to this Court’s judgment, may affect whether this Court is required to hear
his appeal.
It is settled law that courts “have certain inherent authority to protect
their proceedings and judgments in the course of discharging their traditional
responsibilities.” Degen v. United States, 517 U.S. 820, 823 (1996) (citations
omitted). See also United States v. Awadalla, 357 F.3d 243, 245 (2d Cir. 2004)
(quoting Ortega-Rodriguez v. United States, 507 U.S. 234, 239 (1993)). This
extends to dismissing appeals with prejudice or holding them in abeyance where
the defendant “‘can[not] be made to respond to any judgment we may render.’”
Degen, 517 U.S. at 824 (quoting Smith v. United States, 94 U.S. 97, 97 (1876);
other citations omitted); see also United States v. Zedner, 555 F.3d 68 (2d Cir.
2008) (discussing a court’s discretionary power to dismiss a criminal appeal
when its judgment cannot be enforced); Awadalla, 357 F.3d at 248 (“it is clear
that we have discretion to dismiss Awadalla’s appeal with or without prejudice
to renewal.”); Fratus v. United States, 496 F.2d 1190 (5th Cir. 1974) (dismissal
without prejudice). Further, the Supreme Court has told us that “[p]rinciples of
deference counsel restraint in resorting to inherent power, . . . and require its
use to be a reasonable response to the problems and needs that provoke it.”
Degen, 517 U.S. at 823–24 (citations omitted). We express no opinion on what
inherent power this Court may or may not have regarding al Qosi’s appeal if he
is an unprivileged enemy belligerent (as the Government contends), or cannot be
made to respond to this Court’s judgment, or what to do if we have the power to
dismiss his appeal. 2 We recognize this Court is ill equipped to address the
factual issues raised by the Government’s contention. Thus, pursuant to United
States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), we will remand this
case to the Convening Authority to order a hearing to determine al Qosi’s status
based upon competent evidence.
r eda c ted v ers ion of Ms. L a che lier’ s d ec lar a tion. Def en se coun se l th en w ill h av e s ev en d a ys
th ere af ter to te ll u s why an y unr eda c ted por tion of the de cla ra tion shou ld no t be ma d e pub lic
on th e ground s of p riv ile ge . I f no s uch f iling in time ly ma d e, th e Clerk is d ir e c ted to f ile the
r eda c ted d ec lar a tion on th e do ck et a f te r appropr ia te s e cur ity r ev iew. If an obj e c tion is
time ly ma d e , the en tir e d ec lar a tion s ha ll re ma in und er s ea l p end ing fur th er ord er o f th is
Cour t. S ee US CMCR Ru le of Pr ac tic e 31(g)(3)( B) (F eb. 3 , 2016) .
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Ou r r es ea rch h as no t found an y c ase in wh ich th e appe llan t a c tive ly w as eng ag ed in ar me d
c onf lic t ag ains t the Un ite d S ta tes a t th e sa me time th a t h e sough t to app ea l a cr imi n a l
c onv ic tion in th e Cour ts of the Un ite d S ta tes. Thu s, the iss ue th a t w e ma y b e r equir ed to
d ec id e, a s be s t w e c an te ll, is on e of f irs t impr es s ion.

2

 If Defense Counsel do not have the appropriate security clearance regarding
any evidence or other material that the Government seeks to utilize in connection
with the DuBay hearing, then the Government shall promptly initiate the process
for defense counsel, upon proper approval, to obtain such clearance.
Upon the return of the record to this Court, we will exercise our authority
under 10 U.S.C. § 950f(d), Rule 3, USCMCR Rules of Practice for further
review of the specified questions and take such further action as we deem
appropriate.
ORDER
Therefore, it is hereby
ORDERED that this case is returned to the Convening Authority for
Military Commissions to order a hearing pursuant to United States v. DuBay, 17
U.S.C.M.A. 147, 37 C.M.R. 411 (1967), 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. At
the conclusion of the DuBay hearing, the record will be transmitted to this Court
for further review. It is hereby further
ORDERED that the DuBay hearing shall commence within thirty (30) days
of this Order and that the findings of fact and conclusions of law of said hearing,
along with the record, are to be returned to this Court within sixty (60) days of
this Order. It is hereby further
ORDERED that as promptly as possible, and to the extent practicable, there
shall be filed on the public docket unclassified versions of any pleading, findings
of fact and conclusions of law, and other documents that are filed under seal in
connection with the DuBay hearing. It is hereby further
ORDERED that no argument may be made and no other pleadings may be
filed by any party regarding the matters raised by this Order without the prior
consent of this Court. Any application for such permission shall be made by letter
application not to exceed two pages.
FOR THE COURT:

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