GUANTANAMO BAY, CUBA – It has been eight years and three months since alleged senior al-Qaida commander Abd al Hadi al-Iraqi arrived at Guantanamo Bay. Now much-anticipated hearings related to his alleged war crimes charges have been delayed two more days.
Lt. Col. Tom Crosson, a Defense Department spokesman, said Monday the Pentagon will not comment on why the military commission judge, Navy Capt. J.K. Waits, has delayed the start time of the first session this week.
Reasons for delaying hearings run the gamut from natural disasters to last-minute legal disclosure of new evidence that could complicate the hearing, a Guantanamo defense attorney said.
Military commission personnel will meet Tuesday to review scheduling for the pre-trial hearings, which are not expected to begin before Wednesday morning. The Guantanamo Review Task Force recommended Hadi for prosecution in January 2010.
Hadi, one of Guantanamo’s remaining high-level detainees, is charged with conspiring and leading a string of violent attacks in Afghanistan and Pakistan from 2001 to 2006.
The Mosul, Iraq native is accused of attacking civilians and also 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.
Hadi allegedly instructed fighters to dress in local attire in order to blend in with the civilian population , and instructed them to videotape attacks and victims’ deaths for use in al-Qaida propaganda films. He is 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 Shikin, 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.
The pre-trial hearings scheduled this week will hinge on defense motions related to Hadi’s status as an unlawful enemy combatant, a term used by the U.S. government to denote status of unlawful combatants without protections under the Geneva Conventions. (Is that change OK?)
If the prosecution proves that Hadi is entitled to prisoner-of-war status, the jurisdiction of his case will be limited to the military commissions at Guantanamo, rather than federal court.
Three defense motions on the table this week relate to Hadi’s conspiracy charges, which have come under fresh scrutiny in the wake of a recent 2-to-1 panel opinion by the United States Court of Appeals for the District of Columbia against Ali Hamza Ahmad Suliman Al Bahlul.
Bahlul’s 2008 “inchoate conspiracy” conviction was overturned because the commission at Guantanamo did not have authority to convict him of a conspiracy charge according to the law of war on Article III grounds, the panel wrote.
On Sunday, the chief prosecutor in the Hadi case, Brig. Gen. Mark Martins, said the military commission judge may defer judgment on the conspiracy charges in order to see if the D.C. circuit opinion will remain final, or be petitioned again by the government en banc by July 27. Martins also noted the two cases should not be conflated.
“There’s a strong doctrine of also considering individual cases. Bahlul’s not exactly the same as Hadi. They’re slightly differently situated before the law and before the court,” Martins said.
Martins addressed questions of whether the Bahlul decision may challenge the future of Guantanamo’s military commissions, calling these opinions “both overstated and myopic.”
“Regardless of the government’s decision, military commissions will continue moving toward trial in its seven ongoing cases,” he said Sunday. “We’re not even in the controversial area of law in how we’ve been charging.”
If Hadi is present should the hearings proceed Wednesday as planned, it will be the first time he has appeared in court since judge Navy Capt. J.K. Waits rescinded his “no-touch” order for female guards in March.
Previously, Guantanamo Bay obliged Hadi’s demand that female guards not be permitted to touch him, citing his adherence to Islam as justification on grounds of the Religious Freedom Restoration Act. Capt. Waits said the overturned appeal resulted from a need for a well-functioning facility and elimination of gender discrimination.
If Hadi is convicted, he faces life in prison, distinct from other active prosecutions at the Guantanamo war court in the Sept. 11 and USS Cole terror attacks which seek military execution.