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July 14, 2017

Al Hadi’s Prosecution Showcases Confusion, Inadequacy in Guantanamo

By Camille Marrero 

Two weeks ago I sat behind glass in a courtroom gallery looking at a defendant seated with his attorneys. Across the room sat a team of prosecutors, a judge, and military personnel.

The 40-second delay in audio streaming—to prevent transmission of classified information—and the multiple security checks to enter the gallery reminded me that this wasn’t like any courtroom I had been to in the continental United States. This was Guantanamo Bay, Cuba, and I was here to observe a pre-trial hearing session at a military commission in the prosecution of Abd al Hadi al-Iraqi.

An Iraqi national, Hadi was captured in Turkey in October 2006. The CIA held him in a black site for nearly six months before he was transferred to Gitmo in April 2007.

Hadi is considered a high value detainee. He is charged with committing serious violations of the laws of war as a senior member of al Qaeda in Afghanistan, Pakistan, and elsewhere from 2001 to 2006. The attacks he allegedly participated in killed and injured U.S. and coalition service members and civilians, in addition to destroying property.

If convicted, Hadi faces life in prison.

Unlike proceedings in federal courts, where the public can show up on the day of the hearing to observe, proceedings in the military commissions are not easily accessible. This was the third time that I made travel arrangements to visit Guantanamo. The first time, I received notice that the hearings had been cancelled the day before my trip. The second time, the office of military commissions failed to process my paperwork in time.

After all that buildup, the five-day trip to Gitmo was disappointing. The open hearings lasted only four hours—the same amount of time that we had waited at Andrews Air Force Base for our plane to depart to Guantanamo.

Military Judge Peter Rubin, a Marine Colonel, heard oral arguments on four out of six motions. Most of the issues were related to the in-court deposition of Ahmed Mohammad Ahmed Haza Al Darbi, which is scheduled to begin in August.

The prosecution filed a motion to require Hadi to be present for the portion of Al Darbi’s deposition during which he will identify the defendant. The prosecution argued that a face-to-face identification of the defendant is necessary given the debate over his identity.

The debate over Hadi’s identity stems from questions about his given name. Since May 2016, Hadi’s defense team has claimed that his given name is actually Nashwan al Tamir. The defense noted that “Abd al Hadi al-Iraqi” is a title used throughout the Middle East.

In last month’s hearing, the defense opposed the prosecution’s request to require Hadi’s presence at Al Darbi’s deposition for a face-to-face identification. The defense cited regulations that allow the defendant to waive his right to be present in a deposition.

Judge Rubin asked the parties what his authority was to require the accused to be present at a session if it is not a hearing. This sparked argument over whether the applicable rules considered a deposition to be part of the trial process. The prosecution ultimately claimed that the accused does not have the right to be absent, stating that such tactics would frustrate the public interest in justice.

This back-and-forth over the applicable rules went on for the four hours that I sat in the courtroom gallery.

The time and effort spent reconciling different interpretations of the military commission’s statutory authority showcased a fundamental inadequacy in the Guantanamo system. Had the defendants had been apprehended according to federal law, interrogated lawfully, and charged in a federal district court where the rules are clearly defined, there would not have been room for the ambiguity that I saw in Hadi’s prosecution.

Since 9/11, U.S. federal courts have convicted more than 620 individuals on terrorism-related charges. The military commissions have had eight convictions—three of which have been completely overturned, and one partially overturned.

As I sat in the Guantanamo courtroom and listened to hours of muddled arguments, I couldn’t help wondering whether justice was actually being served.