Bali bombers can return to Malaysia after conviction

When a jury of military officers is convened this week at Guantanamo Bay, it will be asked to choose a sentence of between 20 and 25 years for two Malaysian detainees who admitted conspiring with an Al Qaeda affiliate that carried out a deadly killing committed. bombing of Indonesia twenty years ago.

But behind the scenes, through a secret deal negotiated with a senior Trump-era official, the men could be returned to Malaysia before the end of the year.

The sentencing proceedings for Mohammed Farik Bin Amin, 48, and Mohammed Nazir Bin Lep, 47, are part of a US government strategy to resolve national security cases at Guantanamo through settlement negotiations. The men spent years in secret CIA prisons after their arrest in 2003. By reaching an agreement, prosecutors avoided lengthy torture lawsuits that involved two capital cases, the September 11 attacks and the bombing of the USS Cole stood.

The two men were captured along with a former Qaeda member, an Indonesian known as Hambali.

Last week they pleaded guilty to conspiracy in two suicide bombings on the holiday island of Bali that killed 202 people on October 12, 2002. As part of the settlement, they were questioned by prosecutors on Sunday and Monday, possibly for use in Mr. Hambali's trial, which prosecutors plan to hold next year.

The testimony is secret for now. But in their plea, they said they had no first-hand knowledge that Mr Hambali was responsible for the attack. They said they later learned from internet news reports that Mr Hambali was wanted for a series of attacks by the Jemaah Islamiyah movement and that they had helped him evade arrest.

Part of the plea deal that provides for their return to Malaysia is also secret.

The judge, Lt. Col. Wesley A. Braun, announced in court that the plea deal limited the jury to a sentence of not less than 20 and not more than 25 years. He did not reveal whether the sentence could be reduced as part of the cooperation agreement.

But the judge made an unusual exception to the requirement that they drop all appeals against their convictions. If they are still at Guantanamo 180 days after a senior Pentagon official approved the sentence, they can ask a federal court for their release.

In addition, Colonel Braun also awarded the defendants a number of undisclosed convictions for the prosecution's failure to provide lawyers with evidence in a timely manner, according to legal staff who saw the ruling. It has not been made public.

The plea deal was reached by Jeffrey D. Wood, who served as supervisor of the war court, or Convening Authority, from April 2020 until about three months ago. His successor, Susan K. Escallier, will assess whether the Malaysian men have fully cooperated with the government and whether any promises by Mr. Wood about a reduced sentence should be kept.

The process is complicated. In the hybrid military-civilian court that President George W. Bush built after the September 11 attacks, the regulator has the power to reduce a prisoner's sentence but not to order a prisoner's release. A federal court judge could do that, but the State Department would have to negotiate an agreement to transfer the detainee to another country that meets the security concerns of the Secretary of Defense.

So there is no immediate prospect of a plane taking the men home – even if it goes to Malaysia's respected jihadist rehabilitation centre.

In their written guilty pleas, the men admitted that they had gone to Afghanistan in June 2000. There, they trained at a Qaeda camp in “basic military tactics, topography and firearms,” ​​including firing assault rifles and rocket-propelled grenades.

In late 2001, Mr. Hambali arranged a meeting with Osama bin Laden, in accordance with the agreement. They swore an oath of allegiance to him and agreed to become suicide bombers in an operation that was later canceled. The trainees traveled to Thailand in December 2001 and agreed to help Mr Hambali evade capture. They also surveilled an Israeli aviation counter in Bangkok and obtained weapons and fake passports, and at least one of them collected cash from a Qaeda courier from Pakistan.

It is unclear what this means for Mr Hambali. James R. Hodes, his attorney, has said he is awaiting evidence from the government in preparation for trial. Some of the most sensitive and classified information concerns what CIA agents did to detainees in an overseas prison network, where waterboarding, sleep deprivation, beatings and other abuses were part of a program of now-banned “enhanced interrogation techniques.”

In 2003, according to a Senate study of the CIA programan interrogator told Mr. Hambali that he would never go to court because “we can never let the world know what I did to you.” That investigation was released in 2014 and whatever the interrogator did to Mr. Hambali has not been disclosed.