Guantanamo Bay, Cuba — Accused senior al Qaida leader, Hadi al Iraqi got his day in court Monday, as pre-trial hearings got under way in the case of The United States of America v. Abd al Hadi al Iraqi.
Sitting in a courtroom, 1,393 miles north of the equator, alleged al Qaida member and Osama bin Laden adviser, Hadi al Iraqi, garbed in a white dishdasha, (ankle-length robe) and turban sat and stroked his beard and listened as members of both the prosecution and defense teams debated two defense motions: a motion to Dismiss for Lack of Subject Matter Jurisdiction, and a motion to Strike Common Allegations.
Hadi al Iraqi was “captured in Turkey in 2006 and arrived at Guantanamo Bay in April, 2007,” said Marine Lt. Col. Tom Jasper, one of his defense attorneys.
For the motion to dismiss for lack of jurisdiction, Jasper argued that the U.S. government is responsible for determining what type of prisoner Hadi al Iraqi actually is, a prisoner of war, or a person who was captured during an armed conflict.
The defense claims that Hadi al Iraqi did not receive a fair hearing to establish his status after his capture. His lawyers asked that all proceedings related to his case be suspended until such a hearing can take place.
It is up to the judge, Navy Capt. J. Kirk Waits, to determine whether or not a hearing should take place.
In order to be labeled a POW, an individual must meet at least one of the following categories:
- Membership and armed force status in a Party fighting in a conflict
- Membership of a militia that has volunteered to fight for a Party engaged in conflict as long as they are under the commandment of someone responsible for his subordinates, have a distinctive insignia of said party recognizable at a distance, carry arms openly and conduct their operations in accordance with the laws and customs of war.
- Have a relationship to a combatant Party, such as a crewmember, war correspondent or contractor.
If such a hearing is ordered to take place and Hadi al Iraqi is indeed found to be a POW, the defense argues that he should “be released and repatriated,” once the conflict in his home country is over.
However, Mikael Clayton of the prosecution said that there is “little doubt” that Hadi al Iraqi is not entitled to such a hearing and prosecutors “will prove jurisdiction over the case.”
The second motion initiated by the defense asked that 63 allegations that were listed on the charge sheet in addition to the original five charges be stricken because they “are extremely prejudicial to the accused.”
“The charges are perfectly clear,” Air force Maj. Ben Stirk, another of Hadi al Iraqi’s defense attorneys said. “There is no need for the allegations… they are a cheat sheet for the government… they’re inflammatory,” said Stirk.
Stirk said if the added allegations are allowed to remain on Hadi al Iraqi’s charge sheet, they could serve as black and white bullet points outlining the prosecution’s argument and would be readily accessible to members of the jury.
The prosecution argued the allegations were succinct and allowed for a “plain, concise and definite,” charge sheet.
If the judge sides with the prosecution and allows the allegations to remain, the question of whether the prosecution must prove all sixty-three allegations or just one, as is normally required, would still remain.
The United States v. Abd al Hadi al Iraqi is considered by some to be a unique case because it deals with accusations of over a decade’s worth of alleged transnational terrorism.