Gitmo Detainee Fights for New Legal Team, Right to Speedy Trial

I sat alone in a darkened hall in Fort Meade. Live-streamed (well, almost—there is a forty-second delay to prevent transmission of classified information) on a screen before me, a judge at Guantanamo Bay considered the military commission case of Abd al Hadi al-Iraqi (Hadi).

Hadi is a high-value detainee in his mid-50s charged with war crimes. He was captured in 2007, held at a black site for almost six months, and then transferred to Guantanamo. If convicted, he faces life in prison—but pre-trial proceedings are moving at a snail’s pace.

Hadi—who indicated in May that his real name was Nashwan al Tamir—has been trying to reconstitute his legal team after firing his previous one last September due to conflict of interest concerns. New military lawyers have been assigned to represent him, and his new lead counsel, Brent Rushforth, was sworn in two months ago. But efforts to add four civilian attorneys to the defense team have stalled.

In this week’s hearing, the defense team argued that the ball is in the government’s court, which they said had done virtually nothing to process the attorneys’ security clearances. The prosecution countered that two of the attorneys could have sought interim low-level clearances, while another’s paperwork remains incomplete. At the conclusion of the session, this issue remained unresolved and the defense indicated that it will submit additional information soon, detailing the team’s efforts to obtain clearances.

Another question raised in the proceedings was how many attorneys Hadi has a right to choose, as a matter of constitutional law and under the military commission’s rules. The defense claimed that Hadi has the right to choose multiple civilian attorneys to represent him—which the prosecution disputed.

The parties also discussed whether Hadi—whose case has been in pretrial hearings since 2014—has a right to a speedy trial. The defense team asserted that Hadi was entitled to this right under the Sixth Amendment. However, the judge directed the parties to focus instead on whether the rules for military commissions excused the delays. The prosecution argued the delays were proper and reasonable, so should be excused under military commission rules. The defense team indicated it will revisit this question as part of its Sixth Amendment argument in future proceedings.

Finally, the defense team sought to withdraw an earlier motion without prejudice, which called for all charges to be dismissed and a review of Hadi’s status by a “competent tribunal,” in accordance with Article 5 of the Geneva Conventions. The defense argued that the motion was prematurely filed. At issue is whether the military commission is a “competent tribunal” to conduct this status determination or whether it must be done by a Combatant Status Review Tribunal (CSRT). And, according to the defense’s argument, the outcome of this status determination will define whether the military commission has the power to hear and decide the case against Hadi. The defense plans to reformulate the arguments in the motion.

Hadi’s next hearing is scheduled for September 19. Milestones for the pre-trial proceedings have not yet been agreed upon, and any prospects for an actual trial are years away. The painfully slow pace of Hadi’s case and the disputes about the relevant standards and procedures all provide further proof that military commissions are not credible forums to try terror suspects. Federal courts offer the robust safeguards and procedural rules that would allow for fair trials of Gitmo detainees. One former detainee has already been convicted in federal court, as have numerous terrorism suspects captured overseas, including Osama bin Laden’s son-in-law.

Even as the United States grapples with its history of torture and indefinite detention, the world’s attention is shifting. Children who were in third grade on 9/11 have now graduated college. But Guantanamo remains a dark stain on America’s conscience. The ongoing trials of detainees like Hadi continue to punctuate the news, reminding us that this shameful chapter of U.S. history is not yet closed.

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Published on July 14, 2016

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