Defense lawyers asked a Marine judge Tuesday to order the prosecution to find out if a man accused of running the al-Qaida army in Afghanistan will get out of Guantánamo if he’s acquitted or completes a war crimes sentence.
“What are we doing here? Let’s abate these proceedings until we get an answer to this question,” said Brent Rushforth, lead lawyer for the man charged as Abd al Hadi al Iraqi, who could be sentenced to life in prison if he’s convicted. “We don’t know what his fate will be no matter what the outcome of this trial will be.”
Rushforth said for the trial to “be fair and meaningful under the rule of law,” the accused, who says his real name is Nashwan al Tamir, needs to know if he would be allowed to go if he’s found not guilty or sentenced to a shorter term.
“That’s an impossible request,” prosecutor Navy Lt. Cmdr. B. Vaughn Spencer replied, “even if the government had a crystal ball and could foresee the future.”
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Essentially Rushforth was asking the judge, Marine Col. Peter Rubin, to wade into the “Forever War” thicket, and seek an answer about an outcome over which he has no control. Congress has given the president the authority to hold captives in the War on Terror for the duration of the conflict. Only a federal court — not the war court — has the authority to declare a Guantánamo captive unlawfully detained and order the Pentagon to release him.
Rubin at one point wondered aloud whether the answer might be: “It depends, asterisk, on a number of factors unknown at this time.”
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Rushforth, who earlier defended uncharged, since released Guantánamo captives, said the answer to the question would influence defense strategy in the case, including whether to insist on a speedy trial or to consider negotiating a guilty plea in exchange for a certain sentence.
Hadi, a former Iraqi Army non-commissioned officer who ran away from his homeland in the 1990s, is accused of commanding irregular forces that killed and maimed U.S. and allied troops during the post- 9/11 invasion, of representing al-Qaida at the Taliban’s destruction of the Bamiyan Buddhas and of other acts as a senior commander. He’s believed to be in his 50s.
At one point during Tuesday’s session, the maximum-security, expeditionary courtroom at Camp Justice experienced a jolt of a 4.7-magnitude earthquake off the coast of the base in southeast Cuba, prompting a brief recess but causing no discernible damage.
“The military commissions process adjudicates guilt and innocence,” the chief prosecutor, Army Brig. Gen. Mark Martins, said later, outside court. “If they are found guilty beyond a reasonable doubt, they are sentenced, and that punishment is carried out. In the military commissions process those who’ve had their trials happen, and who’ve been sentenced, and those sentences have run, have all been repatriated.”
He listed several examples: Omar Khadr, who pleaded guilty in 2010 in exchange for certain repatriation to Canada to complete his sentence; Salim Hamdan, who was found guilty of foot soldier violations as Osama bin Laden’s driver in 2008, and was repatriated to Yemen in the same year, when his sentence ran out; and Ibrahim al Qosi, who was returned to Sudan in a plea agreement.
“If the implication is that a military commissions process and outcome is meaningless, that’s just not the way it’s worked out,” the general said.
The next test of that concept and the first of the Trump administration comes early next year. An Obama-era agreement said confessed terrorist Ahmad al Darbi could be sentenced here later this year and sent to serve the sentence in a prison in his native Saudi Arabia in February — after Darbi turns government witness in the Hadi and USS Cole bombing trials.
In their arguments, defense and prosecution lawyers acknowledged that at one point the two sides discussed a plea agreement rather than the trial.
Spencer, the prosecutor, said the law permits Hadi to use a petition of habeas corpus to challenge his detention in federal court. The Iraqi had a habeas petition, but the case was closed, he said, prompting Hadi to raise his hands in surprise.
Rushforth said after court that Hadi was unaware of the development at the court, which has traditionally deferred the unlawful detention question in the case of Guantánamo captives with active war court prosecutions until after their trials.