After Three Months, Some Signs of Life at Guantanamo Military Commissions

The courtroom at the military commissions of Guantanamo Bay, Cuba finally came alive again this week after three months of inactivity. Before the court was the case of Hadi al-Iraqi, who is charged with a number of offenses including denying quarter—that is, killing fighters after they’ve surrendered—and attacking protected property in Afghanistan and Pakistan in 2003-2004.

Judge Waits called the court to order just after 9:00 AM on Tuesday, May 17. The first order of business was to introduce al-Iraqi’s new defense team, as he fired his previous one last September. His new lead defense counsel, Mr. Brent Rushforth, was sworn in before the commissions after certifying to the judge that he was qualified to hold the position.

Next up was the matter of al-Iraqi’s name. According to the defense, his given name is actually Nashwan al Tamir, and he has requested to be addressed as such moving forward. Judge Waits noted that in previous depositions, al-Iraqi had told the commissions that his name was “Mr. Hadi,” so the judge was not inclined to begin referring to him any differently after two years of pre-trial proceedings. Mr. Rushforth said he understood, but wanted the court to know that the defense would be referring his client as Nashwan al Tamir from that point on.

Defense later noted that “Abd al Hadi al-Iraqi” is a title, not a name, and that there are a number of individuals throughout the Middle East that are referred to as Hadi al-Iraqi. Their goal in requesting the court to use the name Nashwan al Tamir is to ensure that all parties are referring to the same individual.

Mr. Rushforth then voir dired – asked Judge Waits a series of questions to determine personal bias, noting that it was the first time in his 50 years of practicing law that he had voir dired a judge, since it is not allowed in federal court. He asked Judge Waits questions about his relationships with various individuals in the Departments of Defense and Justice, as well as the judge’s position on the admissibility of evidence obtained by torture, enhanced interrogation techniques, or “rough handling.” After the questioning, Judge Waits assured the court that there was nothing in his past to imply that he would not be able to oversee the proceedings impartially and fairly.

The sole motion on the docket for this session was AE 015K, a motion from the defense team to request an additional 18 months before the case goes to trial. The defense argued that since four additional team members do not have security clearances yet, the accused’s right to adequate representation isn’t being met and it would be unjust to move forward. They also claimed that the prosecution has not yet provided them with all necessary discovery, so it is impossible for them to properly prepare for trial. Finally, Mr. Rushforth contended that it is imprudent to move forward in this case while the al Bahlul case is pending before the D.C. Circuit court, as the judgment could drastically change the case against al-Iraqi.

There were several other justifications for continuation listed on the original motion that Mr. Rushforth said he will offer later in subsequent motions.

Judge Waits pointed out that there’s no reason the commissions can’t proceed with motions unrelated to the al Bahlul decision, and that suspending everything for 18 months for that reason is irresponsible. The al Bahlul case is focused on the question of whether or not conspiracy can be tried as a war crime or must be tried in federal court.

The prosecution responded to Mr. Rushforth’s motion by noting that the accused is already adequately represented with three military counsel and one civilian counsel. They do not see the need to halt proceedings to wait for the security clearances to go through on additional counsel simply because the defendant would like them on his team. They also said that they have provided the defense with 80 percent of current discovery, and will provide the remaining 20 percent as soon as it has been processed, noting that trial is still months away even without a continuance.

After hearing arguments, Judge Waits suggested to the prosecution that if the additional members of the defense team are already in the civilian counsel pool, it would be in the interest of the government to expedite their security clearances. While he did not rule on the motion, it seems unlikely that he will grant the full 18-month continuance. At the end of the session, he told both teams to prepare to proceed with the currently-scheduled July hearings which will almost certainly discuss who is at fault for the continuous delays.

The commissions recessed at 11:43 AM, just shy of three hours after they convened. The next hearing isn’t scheduled until July 11. Depending on how Judge Waits rules on AE 015K, the trial may still be years away. To date, the military commissions at Guantanamo Bay have convicted only eight individuals, and four of those cases have been overturned. In comparison, federal courts have successfully tried and convicted more than 500 individuals on terrorism-related charges since 9/11.

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Published on May 20, 2016

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