GUANTANAMO BAY NAVAL BASE, Cuba (CN) — At this week's hearing for an accused senior official of al-Qaida, unusual military commission procedures on full display underscored challenges that have plagued the tribunals since their inception.
First, defense attorneys for Abd al-Hadi al-Iraqi stunned the court with the claim that their client's real name is Nashwan al-Tamir. Then, the judge cleared the path for a process usually reserved for assessing bias of potential jurors.
Al-Hadi's new lead defense attorney spoke to reporters about the permission he received to question Navy Capt. Judge J.K. Waits.
"In the almost 50 years I have been practicing law, I have never examined a judge," McKool Smith's Brent Rushforth said at the hearing. "So I guess if you do this long enough, there's always a first."
Though U.S. Army Brig. Gen. Mark Martins conceded Tuesday that judges have discretion to permit voir dire, he had told reporters the day before that he did not think Waits would permit it.
Voir dire began right away during Tuesday's hearing with Rushforth questioning Waits about his impartiality.
Rushforth also brought up a recent New York Times report on allegations that Judge Col. James L. Pohl permitted the destruction of evidence in the 9/11 case.
When the attorney asked whether any of that evidence involved his client, Waits said he was unaware of the article.
He said if Pohl had authorized the destruction of evidence, he would not know whether any of it pertained to al-Hadi's case.
Waits also said he follows the rules.
"I am keenly aware of my role as the last sentinel in protecting the commission from unlawful influence," the judge said.
Rushforth told reporters Wednesday that the defense team believes evidence was destroyed.
The defense team has an idea of what it might be, Rushforth said, but he declined to specify, saying only that it "may have a direct bearing on our case."
Commander Gary Ross, a spokesman for the Department of Defense, had no comment on the destruction-of-evidence allegations. "It would not be appropriate for me to comment on a filing that has not been submitted to the commission," Ross said in an email Friday. "Once any filing is properly submitted to the commission, the military judge will make the final decision in the matter."
Notably, military commissions do not have to follow evidence rules that would apply in criminal prosecutions in U.S. district courts. The 1963 Supreme Court ruling Brady v. Maryland requires prosecutors and the government to disclose exculpatory material, known as Brady evidence, that is favorable to the accused.
Army Maj. Wendall Hall noted that the Classified Information Procedures Act does not allow evidence destruction, but that the Military Commissions Act adds the word "delete," without defining it.
"What they're authorized to do under the Military Commissions Act is a problem," Hall said.
Does it mean delete, or does it mean physical destruction? The defense team does not know. "If you're asking questions about the definition, there's already an issue," Hall said.