Prosecutors said Monday they need an admitted Saudi terrorist to finger accused al-Qaida commander Abd al Hadi al Iraqi at his eventual war crimes trial to dispel a potential defense theory of mistaken identity.
Defense lawyers have suggested the United States has charged the wrong man in the case that accuses Hadi of commanding irregular forces in Afghanistan after the 9/11 attacks and committing a string of wartime violations — from killing and wounding U.S. and allied forces to targeting noncombatants.
The 50-something defendant, an Iraqi man who fled to Afghanistan in the 1990s, calls himself Nashwan al Tamir. A variation of that name appears as Hadi’s alias on his charge sheet. But defense lawyers say the burden is on the prosecution to show the gray bearded man who appeared in court Monday in a white turban and black Afghan vest is the same man in the charge sheet.
One soldier whose death Hadi allegedly “ordered and funded” was Army Capt. Daniel Eggers, a Green Beret from Cape Coral, Florida, who was among four U.S. Special Forces who were killed May 29, 2004 by a roadside bomb in Afghanistan. His father, Vietnam war veteran William Eggers, watched the proceedings in the national security court’s spectators section — the first “victim family member” to attend a pretrial hearing in the case that started with arraignment in June 2014.
At issue at this week’s pretrial hearing is whether and when to record videotaped testimony from captive Ahmad al Darbi, a Saudi who pleaded guilty here in 2014 to terror charges.
Case prosecutor Navy Cmdr. Kevin Flynn said Darbi would be able to point to the Iraqi as a “high-level al-Qaida commander.”
Darbi, a Saudi, admitted to unrelated war crimes in February 2014 in a plea agreement that delayed his sentencing by four years so he could turn cooperating witness for U.S. prosecutors. Under the deal, sealed during the Obama administration, a Pentagon official agreed Darbi should be repatriated to Saudi Arabia to serve out his sentence. If that timetable holds, and the Trump administration agrees, he would leave the wartime prison in February.
The Iraqi was formally charged in June 2014, four months after Darbi’s guilty plea. No trial date has been set.
It was long understood that Darbi’s testimony was sought in the death-penalty case of fellow Saudi Abd al Rahim al Nashiri, accused of orchestrating al-Qaida’s Oct. 12, 2000 suicide bombing of the USS Cole off Yemen that killed 17 American sailors. Less clear was why Darbi was being called in this case.
Defense attorney Adam Thurschwell, appearing for the first time in the case, said Darbi and his Iraqi client met, once in 1997.
But prosecutor Flynn said in court Monday there were “multiple meetings,” including shared meals and rides in the defendant’s truck.
Defense attorneys are resisting the testimony altogether. Thurschwell argued that the prosecution made a “significant miscalculation” in 2014 when it believed Darbi would have testified in the intervening four years. Moreover, they seek sufficient evidence to argue that Darbi was so profoundly tortured in U.S. custody that his testimony should be excluded from the case.
They gave the judge a 2008 war court filing in which Darbi describes being subjected to rectal abuse, slave labor, beatings, forced nudity, threats of rape, isolation and sleep deprivation soon after his 2002 capture.
Case prosecutor Navy Lt. Cmdr. Vaughn Spencer asked the judge to forbid defense lawyers from using the word “torture” during the deposition, which could be held this summer, calling it a legal term for which there has been no judicial finding.
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Thurschwell replied that Darbi himself had described his abuse in U.S. custody as torture, and defense lawyers intended to question him about it.
Hadi, for his part, sat comfortably in court in sharp contrast to his January hearing. Then, he refused to be touched by a female guard and was forced from a court cell and wheeled into court fastened to a restraint chair typically used for prison camp force-feedings.
Monday morning, however, two male guards walked him into court.
Monday afternoon, his lawyers asked the judge to let the Iraqi voluntarily waive attendance at any hearing involving a female touching him. Hadi had sought and lost a court order to prohibit female guards from touching him altogether, invoking a Muslim tradition of only being touched by women in his close family.
Judge Rubin did not rule but questioned whether that would constitute a voluntary waiver. The “appearance would be he wants to be present but somehow there's a female guard member preventing him from coming in the courtroom,” he said.