The Military Commission hearing pre-trial motions in the U.S. government’s case against Abd al Hadi al-Iraqi reconvened Wednesday, November 18 at 1:00 p.m. Hadi is accused of several crimes arising out of his alleged role as an al Qaeda commander in Afghanistan during the post-9/11 period. Before convening today, Commission Judge Captain Kirk Waits conducted conferences with the parties on various issues including some anticipated to arise on Wednesday.
Defense Motion AE 21 – Contact with Female Guards
The first issue addressed was the status of defense motion AE 21 requesting that female guards cease certain physical contact with Hadi. The Commission previously granted Hadi’s motion on a temporary basis and the motion was expected to be argued on the merits in this week’s session. But apparently at Tuesday’s conference it became apparent that Hadi’s defense team had been unable access certain evidence that it intended to use in support of its motion. Specifically, Hadi objects to being touched by unrelated females based on his religious beliefs. The government argues that the operational security needs of the detention facility require the use of some female guards. The offensive touch typically occurs during the shackling process when Hadi is being moved from his cell to another location. Apparently in October when Hadi so objected to being shackled by female guards, he was “forcibly removed” from his cell over his objection. A video of this forcible removal exists and has been in the possession of the prosecution team for over two weeks. However, due to problems with the security process (due to the highly classified nature of the video), the defense team was unable to view this evidence until just before Tuesday’s hearing. Additionally, the defense has not yet been provided access to witnesses to the touching and to evidence and/or witnesses confirming the security needs of the detention facility. While the government argued vigorously against extending the time for argument on this issue, the Commission seemed to recognize that the defense could not present a viable substantive argument on the issue without more discovery. The Commission noted that if Hadi is presented with the choice of being shackled by a female or forgoing a meeting with his defense counsel, Hadi’s beliefs apparently prevent him from meeting with counsel or attending his own proceedings. “That is the most basic of due process,” said Judge Waits. And in addition to these rights being recognized under the United States Constitution, they are recognized under numerous internationally binding treaties as well as the Military Commissions Act itself. But also seemingly recognizing that the government has an interest in operating its corrections facilities in a safe, effective, and efficient manner respecting the rights of all genders to equal employment opportunities, the Commission ordered the parties to submit additional briefing on the issue prior to the next scheduled set of hearings in late January.
Defense Motion AE 20 – Article 5 Status Hearing or Dismissal for Lack of Personal Jurisdiction
After wrapping up the briefing schedule for the access to witnesses issue, the Commission issued an oral ruling on one of the motions argued Monday, AE 20. Readers may recall that this motion concerned the defense’s request that Hadi is entitled to a hearing pursuant to Article 5 of the Geneva Conventions in order to determine his status and thus what type of tribunal may try him for the alleged war crimes. Hadi contends that he should be presumed a prisoner of war (POW) and thus may not be tried by a Military Commission. He asked for a determination be made pursuant to Article 5 which provides a particular procedure with a specially constituted panel for determining status. The government argued that Hadi is clearly an unlawful enemy belligerent subject to the jurisdiction of the MCA and no further status determination is needed. Rejecting both parties’ positions, Judge Waits on Wednesday granted the defense’s alternative request, which was that the Commission itself make a determination as to Hadi’s status for purposes of jurisdiction.
Rule 802 Scheduling Conference, Courtroom Tour, and Visit to Camp X-Ray
No open courtroom proceedings occurred on Wednesday, but the parties and the Commission held a Rule 802 scheduling conference to hammer out the way forward and to prepare a plan for the next set of hearings which will occur in late January. The non-governmental observers (NGOs) of the hearings thus had a day devoted to learning more about the facilities associated with the hearings and the detainees. First we were given a detailed tour of the courtroom complex and its related facilities, including the cells used to house detainees on days when they make an appearance in court. Next, the Joint Task Force Public Affairs Office graciously led the NGO observers on a tour of now-closed Camp X-ray.
This area was used in the 1990s to temporarily house the large influx of Haitians arriving at Guantanamo seeking refuge in the United States. For a period of spanning late 2001 and early 2002, Camp X-ray was used to house detainees who were captured in conjunction with the U.S. actions in Afghanistan and elsewhere after the 9/11 attacks. The conditions were quite primitive, and essentially consisted of a small, covered area enclosed by chain link fence for each detainee.
The entire camp was of course heavily guarded and surrounded by concertina wire, most of which still appears to be in place. Fortunately, the government constructed a series of newer, more humane detention areas to house the detainees when it became apparent the situation was not going to be temporary. Camp X-ray is being conserved in its present state for historical and legal purposes.