GUANTANAMO BAY, CUBA — What started out as a motion to cease physical contact between female guards and an al-Qaida-linked detainee became a question of defense rights in military court.
Defendant Abd al Hadi al-Iraqi was charged with war crimes that led to U.S. military deaths in Afghanistan. Captured in Turkey, the 53-year-old man became a war prisoner in 2007. Facing life in prison, what he seems to care about most at this point is adhering to his Muslim religious beliefs.
During judicial proceedings at Guantanamo Bay this week, al-Iraqi’s lawyer made a motion to stop physical contact with female guards to honor his client’s convictions. But the hearings moved backward on Tuesday after the judge addressed an even bigger issue — equal access to witnesses between the prosecution and defense.
“That is the most basic of due process,” said Capt. J.K. Waits, the judge, as he grew more exasperated with the lack of information the U.S. government provided. It was the first time Waits has served as a judge for a military commission.
Federal court rules don’t apply for defendants at Guantanamo Bay. War prisoners, accused of crimes against the U.S., are tried before military commissions, where security measures prevent defense attorneys from accessing witnesses directly — they have to go through the prosecution.
It’s because the U.S. government must determine whether highly classified information is relevant to the case. In any military commission, the U.S. government is the prosecutorial body.
Pre-trial hearings for al-Iraqi, an Iraqi national who allegedly was an al-Qaida commander, came to a halt on Tuesday when defense attorney Marine Lt. Col. Thomas Jasper complained that he didn’t get the chance to interview witnesses. Jasper also didn’t get access to crucial evidence for the hearings until a day after the hearings began.
“In the limited time I’ve been on this case, the most frustrating part is constantly hearing about how transparent this process should be,” Jasper said.
Gen. Mark Martins, chief prosecutor at Guantanamo Bay, disagreed. “I would push back on any notion that individuals in the proceeding don’t have access to witnesses,” he said. “I believe the proceeding is well under control.”
Misinformation and delays
Under the Sixth Amendment to the U.S. Constitution, a defendant has the right to know the nature of the charges and evidence against him. In federal court there are rules that protect that right, said Hattie Harman, staff attorney for the Indiana Supreme Court and part of the Military Commissions Observation Project at Indiana University. Equivalent rules for military commissions have yet to be implemented, she said.
When the defense requests highly classified evidence, the prosecutors are the ones who decide whether to hand it over. The defense must also seek interviews with witnesses through the prosecution. If the defense team is blocked from receiving any information, the judge can intervene.
Al-Iraqi’s defense lawyers said they didn’t get more than 150 pages worth of evidence until 7 p.m. the night before the first hearing on Monday. They only had the chance to interview one witness. And they couldn’t see the video of al-Iraqi being forced out of his cell after he refused to be shackled by a female guard until three hours before the hearing.
The ultimate question that the court was “dancing around,” Harman added, was whether the witness’s identities and information were a big enough security concern that they couldn’t be disclosed.
When the prosecution couldn’t answer Waits’ questions, he grew annoyed and empathetic toward defense.
“What is the rush?” Jasper said. “If this issue was so important to the government, they would have given us the opportunity to speak to the witnesses earlier. … It’s not an adequate amount of time in a case of this magnitude where my client faces the possibility of potential life in prison.”
Waits said if it were so important to finish quickly — as the prosecution maintained — the U.S. government would not have dragged out the defense’s access to information. He told Army Lt. Col. David Long, a prosecutor, he needed to get more specific in terms of what the impacts of the motion will actually be.
Waits postponed the hearings until late January when another motion is scheduled.
Religious rights
In court, Al-Iraqi wore a checkered pink turban and a white dishdasha that streamed down to his ankles. He stroked his 4-inch gray and white beard while listening to a translation through his headphones.
The detention center accommodates his clothing and language essentials, and his prayer schedule even in tight deadline-driven hearings.
“We believe this deeply recognized Muslim conviction is widely recognized across the world,” defense lawyer Jasper said.
The judge ruled in favor of a halt to physical contact during the interim while waiting for the resumption of hearings in January.
Only 10 percent of those guarding detainees at Guantanamo Bay are female — just 3 percent in the camp where al-Iraqi is held.
The prosecution maintains that dropping the female guards would strain resources.
Lawyer Harman said there are three main rights involved — the detainee’s right to privacy and his religious beliefs; operational security, with a right to maintain the facility in the way that works best; and the right of female guards to perform their jobs.
The motion in the Abd al Hadi al-Iraqi proceeding wouldn’t bind the court in future decisions regarding female guards, however. Harman added it would be “premature” to start thinking about how the hearing might apply to future cases.
Jasper said he believes the judge’s interim order is being complied with and that there are no female guards currently having physical contact with al-Iraqi.