Hadi al Iraqi was arraigned at Guantanamo Bay on 18 June 2014 for war crimes allegedly perpetrated in Iraq and other countries when he was a senior member of al Qaeda Iraq and liaison with the Taliban.

Hadi’s first pre-trial hearing was set to begin today at 9:00 a.m., but was delayed until 1:30 p.m. The judge noted that in conference the previous afternoon, the defense had asked for a delay until 1:00 for Hadi to meet his new counsel, whom Hadi would have met for the first time.  Defense had then asked for an additional 30 minutes to accommodate prayers.

Hadi

Just before the hearing began, I could see Hadi and his defense team through the soundproof window that separates the inner courtroom from the public gallery, where the NGOs sit in assigned seats. In addition to myself, 8 other NGOs representatives were present for today’s proceedings, representing such diverse groups as Judicial Watch, various law school programs (Yale, Seton Hall, Toledo), a large bar association, Pacific Council, and Human Rights Watch.

Hadi appears much older than in photos I had seen online, with a chest-length, mostly grey beard.  He seemed very comfortable with his military defense counsel, shaking hands and exchanging pleasantries as they arrived at the defense table. Hadi also seemed comfortable interacting with his military security guard detail, asking them questions, including how he was allowed to pray in the courtroom before the hearing convened (which he did, standing and singing a prayer, followed by silent prayer using a prayer mat).

CCTV Viewing Site in Massachusetts

The judge ordered that a new viewing site be made available for CCTV to be broadcast to a military base in Massachusetts. The prosecution asked for clarification if the new CCTV site was for public viewing or only for victim’s families. The judge ruled that the Massachusetts site is only for victim families (and will make such decision permanent).

The judge noted that the CCTV broadcast is considered by the commission to be over and above constitutional and due process requirements and that the fact that one CCTV site at Guantanamo was not functioning today is covered by this opinion.

New Defense Counsel

New military defense counsel, Marine Col. Thomas Jasper, Jr., reviewed his qualifications and lack of disqualifying factors.

The judge asked Hadi (again) if he was aware that on 1 October 2014 his then military defense counsel, whose orders were expiring, would be excused (he had agreed to this at arraignment). Hadi again acknowledged this. The judge ordered that the counsel not be released as counsel from the case until after 30 September 2014 because he could be instrumental in transition for new counsel and preparing ex parte, under seal law motions that were ordered today.

Hadi has two other existing military defense counsel who will continue, as well as the now-added Col. Jasper. The judge asked Hadi if he had any questions about defense counsel. Hadi said he had no questions, but stated that he felt the addition of civilian counsel would be helpful. The judge had earlier noted that Hadi had not taken any action to secure civilian counsel, and now reminded Hadi that he has that option (at no expense to the government) and that military counsel can assist with that request. Hadi responded “good.”

Protective Order Motion

The Commission was scheduled to consider AE0013, the government motion seeking a protective order to safeguard against disclosure of classified information. According to a press statement from Chief Prosecutor General Mark Martins, such a protective order would allow the defense team to view classified government information in order to allow the accused the ability to challenge its use or veracity, while also protecting national security interests.

The defense did not file a response to the government request to protect sensitive non-classified information after initially objecting.

The prosecution argued that the protective order does not stop Hadi from relaying information he knew previously (although other means may prevent this).

The judge then asked: but you differentiate this defendant with the defendant in the Pappas case because here Hadi is in custody? Do you have any legal authority for this distinction saying that classified information in possession of Hadi is really in the custody of the United States because he is detained?

The prosecution answered that items not covered in the protective order are covered with other measures; here he is in custody. Pappas relied on potential criminal prosecution to prevent disclosure.

Defense arguments

The defense stated that they are very close to what the prosecution just argued. They argued a global objection against secret evidence and secret discovery that may not be available to the defendant client. By narrowing, some concerns are allayed. Hadi’s observations are not classified but treated as such here. He is in custody, so his lack of obligation to not disclose is moot.

Defense is concerned that they would have to sift through 1,000 pages of classified information to decide what to show Hadi, and then they must get special clearance to show Hadi those materials, that would basically be disclosing protected attorney work product and would disclose strategy by showing what the defense counsel feel is most important – defense should not have to do this.

Defense also sought to clarify that a Defense Security Officer will be appointed under the protective order because it has been difficult in the past. The military judge noted that the proposed order says one would be appointed “upon request of defense counsel,” and if the order is approved the defense should ask as soon as possible.

    “Enhanced” Interrogation. The defense noted that the term “enhanced” was moot as the government had now stated that Hadi was not subjected to enhanced techniques. The defense did not object to the commission’s proposed new language regarding disclosing classified information and the commission noted the consensus. In response to the question of “if not the OCA, then who?” (OCA stands for “Original Classifying Agency”) the defense simply wants to be able to discuss information from discovery with its client.

The judge stated in response that he agrees with existing case law that OCAs are in the best position to decide who needs to know.  This question is out of the realm of the commission.

The defense replied that if an OCA says counsel can see certain information, but the accused cannot, then that is very important. How can the defendant not see the information?

The judge stated that these are indeed two different things and that the commission will make discovery decisions accordingly. If not the OCAs, then who?  I have ruled myself out.

Defense counsel stated that it now agrees that this belongs to the OCAs.  But if an OCA is not willing to share information with the accused, the case should not proceed. It’s that important. The judge stated that he believed the prosecution agreed.

Prosecution Arguments

If the judge orders information disclosed and the OCA says no, we litigate the appropriate remedy. The defendant needs to be put in the position “as if” he received adequate information. The defense cannot get a ruling that Hadi can just see all classifies information.

The judge stated that the protective order is a pure question of law, so there is no burden on government but that the government had volunteered to bear the burden and the judge accepted this.

The prosecution stated that the Military Commissions Act (MCA) charged the commission with two goals: to conduct a fait trial, and to maintain and protect classified information. The MCA states that the commission shall issue a protective order to accomplish these goals and that the proposed orders are necessary to remove grey areas, open questions and the potential for mistake. Because an order is required by the MCA, the only question is the details.

The defense had proposed that the protection of interrogation techniques be amended to “enhanced interrogation techniques.” However, classified information included enhanced and non-enhanced techniques (as well as information resulting from these techniques).  Additionally, no enhanced techniques were used on Hadi, so this request makes no sense.

The defense had also proposed a change to the proposed order language setting the definition of unauthorized disclosure of classified information; the proposed order included “Confirming or denying information, including its very existence, constitutes disclosing that information.” Defense suggested changing “including its very existence” to “where the very existence of the information is classified.” The government objected to this change and the military judge interjected that this is actually the definition of another term and needs to stay as is, or be defined another way.  Prosecution said it reads the language differently.  The military judge suggested “where the very existence of the information is classified, would constitute unauthorized disclosure” and prosecution agreed with this suggestion.

Next the prosecution cited 664 F3. 467, 568 (2011) to support its position that having requisite clearance does not give one the need to know classified information. The OCA decides who has the right to know. The defense objection to the OCAs being the final arbiter is therefore baseless. If not the OCA, then who?  (The military judge interjected that he planned to ask the defense that very question).   Prosecution further cited CIA v Simms, 471 US 159, 179 (1985) for the proposition that the agency determination of who needs to know should be given great deference).

The prosecution also addressed the general defense objection regarding the ability to control classified information in two ways: the ability to classify the observations of the accused and the ability to control the defendant relaying classified information outside this context. The prosecution stated that defense counsel would not be allowed to relay information received as a result of these proceedings.  If the defendant himself receives classified information as a part of the proceedings, the accused would be subject to the protective order (the government has to give the defendant access to any information to be used, even if classified).

Draft Pre-Trial Schedule

The judge laid out the draft schedule for further proceedings regarding Hadi:

• 1st set of law motions (legal pre-trial and systematic objections) due 17 Oct 2014.
• 2nd set of law motions due 26 Nov 2014.
• Responses due 14 days after submission and replies due 7 days after.
• Ex parte, under seal, parties to submit anticipated dates of filing of motions.
• Parties will be bound by these self-imposed deadlines, but not be prohibited from new motions.
• 5 Nov 2014 ex parte, under seal, parties to submit a schedule of remaining law motions to be made by 26 Nov 2014.
• 17-21 NOV 2014 oral argument on first set of law motions and discussion of future schedule.
• Evidentiary motions deadlines. TBA

Future Hadi hearings

17-21 NOV 2014

26-30 JAN 2015

23-27 MAR 2015

25-29 MAY 2015

20-31 JULY 2015

Miscellaneous

The judge noted and read into the record the missing information from the arraignment of Hadi that verified that all interpreters had been sworn.

The judge also noted that some parts of the arraignment translation had not made it into the transcription, but were covered by today’s exchanges between the commission and Hadi.

Chief Prosecutor General Martins Meets with NGOs

Chief Prosecutor General Martins met with the NGO representatives after the hearing for approximately an hour to answer questions.