FT. MEADE, Md. (CN) – A constitutional argument broke out at the Guantanamo war court Tuesday as prosecutors condemned the bid to get security clearances for one detainee’s civilian defense team.
“It’s deja vu all over again,” said Navy prosecutor Lt. Cmdr. Vaughn Spencer, quoting baseball great Yogi Berra.
Repeating their argument from the last hearing on the case in May, prosecutors said Abd al-Hadi is entitled only to one civilian attorney, since he is not facing the death penalty.
Al-Hadi has asked for civilian representation since his June 2014 arraignment and fired his all-military defense team in September 2015.
McKool Smith attorney Brent Rushforth accused the government of holding up the necessary security clearances that four members of the defense team need to examine classified evidence and prepare for trial — though the date of such proceedings has not been set.
Arguing that the Sixth Amendment is the right of all U.S. criminal defendants, Rushforth said al-Hadi is entitled to the counsel of choice, otherwise Guantanamo is a Constitution-free zone.
Navy Capt. Judge J.K. Waits asked Spencer to address the argument that the U.S. Constitution does not apply at Guantanamo, but Spencer declined the invitation, saying the court need not answer that question.
The doctrine of constitutional avoidance pushes federal courts not to rule on constitutional issues if they can resolve a case on a nonconstitutional basis.
“This is not the United States so why are you not talking about that?” Waits asked, perplexed.
Rushforth said that constitutional avoidance does not apply unless the government concedes that the Constitution applies at Guantanamo, something the defense would welcome.
“It’s an interesting argument,” Waits interjected.
Rushforth also noted that his defense team is currently without a defense security officer, leaving him without an entity to help him determine if classified information is contained in evidence that is not labeled top secret.
That fact gives him the “heebie-jeebies,” Rushforth said, noting an instance when the government informed him at the 11th hour, just as the team prepared to release information from al-Hadi’s habeas case, that the information was classified.
Held at the Guantanamo Bay prison since 2007, the United States has dubbed al-Hadi a senior-level terrorist with al-Qaida who oversaw Afghan forces that committed war crimes in the wake of the 2001 U.S.-led invasion of Afghanistan.
Rushforth insists his client “is not the guy they [prosecutors] think he is,” noting that the government listed 11 aliases on al-Hadi’s charge sheet.
The detainee announced in May that his real name is Nashwan al-Tamir, and Rushforth said the government will not be able to prove that al-Tamir is a member of al-Qaida.
Judge Waits continued referring to the defendant as al-Hadi at Tuesday’s hearing.
Among attorneys for al-Hadi still awaiting his security clearance is Erwin Chemerinsky, the dean for the University of California at Irvine law school.
Rushforth said Chemerinsky is a constitutional-law expert who needs to interview al-Hadi about who interrogated him and where.
His clearance application is at “dead standstill,” Rushforth said, as are the applications of Jimmy Szymanski, Robert Palmer and international law scholar Catherine Moore.
Spencer deferred blame for “slow-rolling” the defense security clearances, and accused the defense of dragging its feet.
He presented Waits with an email sent Monday from someone at the Special Security Office, which he said showed that two of the four waiting defense counsel have been entitled to interim clearances since April.
Chemerinsky meanwhile has yet to complete his application, Spencer claimed, adding that the scholar has not logged onto the system since May 25.
Rushforth disputed this, saying he has an email in which Chemerinsky claims he did complete the application. Waits wants that email submitted by the end of next week.
Chemerinsky did not respond to an email seeking comment on the matter.
Waits recommended in May that the government work to expedite the clearances, but has refrained from ruling on al-Hadi’s entitlement to the additional counsel.
Rushforth argued the point on semantics, noting that counsel can be singular or plural. Waits pressed him for a case example with multiple lawyers.
“I don’t have such a case,” Rushforth admitted.
Still, the attorney called the lack of movement on the clearances “appalling,” and accused the government of indifference to al-Hadi’s rights.
“If the government fails to do its job, these proceedings must be continued or abated in our view,” Rushforth told the court.
Spencer, the prosecutor, meanwhile recalled that al-Hadi told the judge in May that he accepted as his lawyers Rushforth plus three military attorneys: Army Maj. Robert Kincaid, Army Maj. Wendall Hall and Navy Lt. Cmdr. Keith Lofland.
“Yes, I do like that,” al-Hadi had said.
The al-Hadi war court will convene again in September. The defense team continues to oppose moving forward until it is fully assembled, which depends on the remaining four counsel getting their security clearances.
“As soon as we get our experts, we’ll be moving and we’ll be moving fast,” Kincaid said.
On the other side, the government announced the replacement of its only civilian prosecutor, Assistant U.S. Attorney Felice Viti, with Navy Cmdr. Douglas Short.
With Short taking over for Viti, al-Hadi faces an all-military prosecution team.
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