Flags fly at half mast at Joint Task Force Guantanamo’s Camp Justice, July 22, 2015 (Taylor Hall/Medill NSJI)
NAVAL BASE GUANTANAMO BAY, Cuba — It has been more than 3,000 days since alleged al-Qaida commander Abd al Hadi al-Iraqi was transferred to the U.S. military’s detention facility here.
And new complications this week have further tangled the web of his already Gordian war-court proceedings and will extend his stay at least two more months.
In 2013, congressional Democrats estimated the cost of housing one detainee for one year at the prison camp to be $2.7 million, based on Defense Department figures.
Hadi, a native of Mosul, Iraq, faces life in prison, accused of masterminding a series of attacks on American, Canadian, German, British, Estonian and Norwegian forces, including a 2003 attack on a U.S. military convoy at Shkin, Afghanistan, that killed two U.S. soldiers and injured numerous others.
After another one of his attacks on Oct. 25, 2003, killed two more U.S. soldiers, Hadi’s fighters shot at injured coalition soldiers, according to the charges against him.
He is also accused of attacking civilians and a medical helicopter attempting to recover casualties from the battlefield; directing fighters to kill all coalition soldiers and take no prisoners; providing a reward to the Taliban for assassinating a civilian United Nations worker; acting on orders from Osama bin Laden; attempting to assassinate then-Pakistani President Pervez Musharraf; and destroying historic Buddha statues in Afghanistan’s Bamiyan Valley, a UNESCO World Heritage site.
A pretrial hearing for Hadi that was originally scheduled to begin July 20 and last about a week and a half has been slipped to Sept. 14.
This week’s hearings in Guantanamo got off to a rough start when, two hours prior to a scheduled chambers meeting Sunday, lead government prosecutor Army Lt. Col. David Long turned over 10 pages of evidence from jailhouse conversations in 2007 between Hadi and a Sept. 11 defendant also imprisoned at Guantanamo, Mustafa al Hawsawi.
Hadi’s lead defense lawyer, Marine Lt. Col. Thomas Jasper, said these conversations included information that was adverse to his client.
The prosecution apparently intended to include information from the conversation between Hadi and Hawsawi to prove Hadi was an “unprivileged enemy belligerent,” a label used by the government to determine jurisdiction of war crimes cases, limiting them to the military courts in Guantanamo.
When Hadi’s defense lawyers asked for more time to review the evidence they received Sunday — less than one day before the military hearings were scheduled to begin — the judge, Navy Capt. J.K. Waits, delayed the hearings for two days to give the defense a chance to determine the scope of potential conflict-of-interest issues.
“It is not the prosecution’s job to do conflicts analysis for counsel,” chief prosecutor Army Brig. Gen. Mark Martins said Friday when asked about the reason for the delayed submission of evidence. “We take our discovery obligation very seriously. We are producing it as we find it and prepare it.”
In court Wednesday morning, Waits scolded the prosecution for the delay in submitting evidence — waiting less than one day before the military hearings were scheduled to begin.
“Promptly means promptly,” Waits said. “I didn’t think that was subject to interpretation.”
Jasper, Hadi’s top Pentagon-paid defense lawyer, said two days was not enough time to weed through all the complex conflict-of-interest issues resulting from the new evidence stemming from the chats between Hawsawi and Hadi.
One such issue: It turns out the two alleged war criminals have a defense lawyer in common, at least on paper — Marine Lt. Col. Sean Gleason.
Gleason became Hadi’s first defense attorney after he arrived at Guantánamo in 2007 in an ongoing churn of attorneys through the on-again, off-again war court’s bar.
According to Jasper, Hadi had not properly released Gleason when the Pentagon’s chief defense counsel assigned him to help defend Hawsawi in the 9/11 case. Now the evidence concerning one could be used against the other, which Jasper said posed ethical issues that could complicate future proceedings for the entire defense team.
Hadi spoke to the military judge directly about his concerns. “Attorney Gleason has lots of information concerning me. I don’t know if he’s gong to use this information in the future for me or against me,” he said in Arabic through a translator Wednesday.
The process for releasing defense counsel from representation for a military commission client includes formal dismissal by both military judge and detainee client.
Though Gleason has not represented Hadi in court since being detailed to Hawsawi’s case, the commission now seeks to determine whether he was properly and formally released.
Waits agreed there was a potential conflict for Gleason in representing both Hawsawi and Hadi and said that issue must be resolved, but ruled an hour into the hearing that proceedings could continue because Hadi’s current lawyers were conflict-free.
But Hadi protested, raising new objections.
“Right now I have a very disturbed relationship with my attorneys,’’ he said of his Pentagon-funded defense team, Jasper and Air Force Maj. Ben Stirk.
“I don’t want them to represent me at this time,” Hadi added, citing frustrations over the number of attorneys assigned to work with him on his case over the years.
Hadi said he wants the option of using an independent counsel not assigned by the military — a request he has made before — but agreed to first meet with Gleason.
Both U.S. military defense and prosecution attorneys have come and gone from Hadi’s case. Army Reserve Col. Chris Callen represented Hadi at his June 2014 arraignment, and was replaced by Jasper in September. Stirk, a deputy defense counsel, has been the only defense lawyer to appear at all five of Hadi’s hearings.
Wednesday’s hearing also marked the debut of Felice Viti of the U.S. Attorney’s office in Utah, a new federal attorney who prosecuted the Elizabeth Smart kidnap and rape case. But Viti never uttered a word amid the flurry of conflict issues raised by the defense.
At the end of the hearing Wednesday, Waits put the proceedings on indefinite hold until a meeting between Hadi and Gleason could be arranged.
Though prosecutor Navy Lt. Col. Vaughn Spencer told the military judge Gleason is an active-duty Marine and could be contacted “as quickly as you direct us,” Guantanamo court officials began to book return flights for Saturday as soon as they realized Gleason, not present in Guantanamo this week, could not be located.
Gleason’s email auto-response says he is out of the office until Aug. 7.
On Friday, Martins, the chief prosecutor, said he did not know where Gleason is.
“I won’t in any way try to say that what we’re doing is setting land-speed records,” Martins said of the effort to locate Gleason and facilitate a meeting with Hadi. “We’re making incremental progress. The judge is going to sort out the facts of representation. And counsel have an obligation to make sure they’re representing the client’s interests.”
When asked about the costs of rescheduling the Hadi hearings, which included more than a dozen witnesses for the scheduled 10-day military commission’s version of a show-cause hearing in Guantanamo, Martins said: “These are really important cases. It’s easy to do comparative cost figures and fail to see how important it is to get national security right and fairness right.”
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