GUANTANAMO BAY NAVAL BASE, Cuba (CN) – With a trial date still nowhere yet in sight for the only high-value Guantanamo detainee not facing the death penalty, ample surprises nevertheless emerged as proceedings in his case resumed Tuesday.
The hearing, the first since Abd al-Hadi al-Iraqi fired his last defense team in September, kicked off with an interesting twist. The Iraqi-born detainee has asked to be called by a new name — Mr. Nashwan al-Tamir, his new pro bono defense attorney Brent Rushforth told the court.
Chief prosecutor for the Guantanamo military commissions, U.S. Army Brig. Gen. Mark Martins, said after the hearing that al-Tamiri does not appear among the 11 aliases listed on al-Hadi’s charge sheet, though one lists Nashwan as a first name.
Navy Capt. Judge J.K. Waits said he will continue to refer to the detainee as Mr. Hadi.
“I’ve been doing it for two years, I’m not going to deviate,” Waits said.
“That’s his name,” Rushforth said in response, indicating that prosecutors would need to eventually prove that Nashwan al-Tamir committed the war crimes al-Hadi stands accused of.
The U.S. has dubbed al-Hadi a senior level al-Qaida terrorist, and says he oversaw Afghan forces that committed war crimes in the wake of the 2001 U.S.-led invasion of Afghanistan.
Al-Hadi allegedly plotted with accused 9/11 mastermind Khalid Sheikh Mohammed to assassinate Pakistani President Pervez Musharraf, and conducted multiple attacks on U.S. military installations and civilians, as well as provided security for al-Qaida’s current leader, Ayman Zawahiri, according to his charge sheet.
The U.S. has charged him with war crimes, including “terrorism, denying quarter, using treachery or perfidy, murder of protected persons, attacking protected property, attacking civilians, attacking civilian objects, and employing poison or similar weapons.”
Al-Hadi engaged in these activities, “in order to force the United States, its allies, and non-Muslims out of the Arabian Peninsula, Afghanistan and Iraq,” his charge sheet states.
Al-Hadi appeared unshackled wearing a white, long-sleeved tunic and a white turban on his head, which hung half-way down his back. Al-Hadi was visible to observers, including military personnel, members of non-governmental organizations and journalists, who could view the live hearing through soundproof windows at the back of Courtroom II in the Expeditionary Legal Complex.
Given the distance between the spectators’ gallery and al-Hadi, he could hardly be seen except for brief frontal images that flashed across the 40-second delayed video stream of the proceedings, which gives the judge the ability to block classified information from reaching observers.
Throughout the hearing, observers could mostly only see the back top of al-Hadi’s turban-wrapped head, as it peeked over the computer monitors sitting on five rows of desks behind him. Occasionally, al-Hadi turned his head to chat with a Sudanese translator and the four members of his defense team, briefly showing his profile and his long, graying beard.
Al-Hadi told the judge he approved of the four sitting members of his defense team: Rushforth, Robert Kincaid, Wendall Hall and Keith B. Lofland. This is the first time al-Hadi has been given civilian counsel. Under the military commission system, defendants in non-death penalty cases are not entitled to government-paid civilian attorneys, but Rushforth was allowed to represent al-Hadi pro bono.
“Yes, I do like that,” al-Hadi’s translator said, interpreting his response.
However, al-Hadi delivered the second surprise of this week’s hearing – and to the prosecution – when he rattled off the names of four more civilians he wants to join his defense team, including University of California at Irvine Dean Erwin Chemerinsky, and Catherine Moore, who Rushforth identified as an international law expert.
The prosecution noted that they were first informed of these additions during a teleconference Monday night.
“So you literally never heard of these people until the 802 last night?” Waits asked Navy Lt. Cmdr. Vaughn Spencer, referring to the teleconference. Spencer answered in the affirmative.
Rushforth said he did not know whether that was accurate.
“It’s a little incredulous to me that they didn’t know we were trying to get these people onto this team,” he said.
“How would they know if you didn’t tell them?” Waits responded, later scolding Rushforth for failing to comply with an order for timely notification of specific events.
“Let’s say they are completely surprised as of today – so what?” Rushforth said.
Rushforth insisted that his team cannot move forward with preparation until the new additions get their security clearances, which he said are being slow rolled. Those security clearances will allow the new counsel to look at classified evidence.
Spencer accused the defense of feet dragging, blowing off its accusation of slow rolling and arguing that al-Hadi does not necessarily have a right to multiple defense counsel.
Rushforth numerous times described the prosecution’s assertion that al-Hadi is now properly represented as “rich.”
He asked Waits to expedite getting the new counsel into the pipeline for their security clearances, noting that he once got a security clearance in two weeks when he worked in the Carter administration.
“They are critical people,” Rushforth said. “We need them on the team to be fully prepared.”
Martins said after court that al-Hadi is “amply represented right now,” but Waits recommended that the government get moving with processing the other counsel, while noting he was not yet ruled that al-Hadi is entitled to the additional counsel.
Another hearing for al-Hadi is scheduled for July, though the two sides disagree about what they will be ready to litigate. Up for argument is whether al-Hadi was due Miranda rights and delay attribution.
Rushforth said the defense will not be ready to litigate that issue in July, while the prosecution agreed to argue attributable delay at the July hearing.
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