An Iraqi captive accused of running al-Qaida’s army in Afghanistan after the U.S. invaded in 2001 told a judge through his lawyers Tuesday that he wanted to be called by his real name.
The captive known as Abd al Hadi al Iraqi, in his mid 50s, was charged in June 2014 with war crimes punishable by life in prison as the alleged commander of forces that killed U.S. and foreign allied troops in 2002-04 wartime Afghanistan.
But his real name is Nashwan al-Tamir, said his Washington, D.C., lawyer Brent Rushforth.
Rushforth said in court that the defense team would at some point argue that prosecutors need to prove that the crimes attributed to “Abd al Hadi al Iraqi” were actually committed by Nashwan al-Tamir.
After court, chief prosecutor Army Brig. General Mark Martins said it was indeed “the burden of the government” to prove in court that “the individual sitting in the dock did the charges.”
Defense lawyers had tried for weeks to abort what became Tuesday’s half-day hearing, arguing that team members were still seeking security clearances and that the court compound called Camp Justice was under a continuing cloud amid an ongoing health review.
But prosecutors noted that the man known to the court as Hadi currently had four lawyers: Rushforth, a former Pentagon deputy general counsel who handled intelligence issues during the Carter administration; Army Majors Rob Kincaid and Wendall Hall; and Lt. Cmdr. Keith Lofland.
Rushforth, who has represented since-released, never-charged Guantánamo captives, made his first war court appearance. Because this is not a death-penalty case, the Iraqi is not entitled to a civilian defense attorney under the current formula for military commissions that says he gets one Pentagon-paid U.S. military defense lawyer.
Rushforth instead was accepted as a pro-bono attorney — receiving no payment for his service. The Iraqi man who sat in court in a white robe and turban listening to the proceedings through Arabic translation has consistently since his June 2014 arraignment sought a civilian lawyer — and Tuesday he told the judge that Rushforth would lead his defense team, pending the addition of four more lawyers.
“He’s amply represented right now under the law,” Martins said after court.
But the accused and Rushforth both told the judge, Navy Capt. J. Kirk Waits, that they want to add four more civilians, including two men who worked with Rushforth on earlier Guantánamo cases plus University of California at Irvine School of Law dean Erwin Chemerinsky and Catherine Moore, who he identified as an international law expert. The other two are Robert Palmer and Jimmy Szyamanski.
Three are awaiting security clearances; a decision on whether Chemerinsky could join the team was being handled by the Office of the Convening Authority, the Pentagon overseer of military commissions.
In court, Rushforth made reference to his time in the Carter administration and said he got a security clearance in just two weeks. This time it took months.
Before court, Rushforth said he served in the Pentagon’s General Counsel office as a deputy for the last 2 1/2 years of Jimmy Carter’s presidency and had involvement in both the SALT treaty and the ill-fated attempt to rescue U.S. hostages in Iran.
The case currently has five prosecutors, four of them military lawyers also led by a civilian, Felice Viti, who as a federal prosecutor in Utah handled the 2011 Elizabeth Smart kidnap and rape case and got a life sentence.
The U.S. government alleges that fighters who answered to Hadi committed a series of war crimes, including shooting at a U.S. military medevac helicopter, setting roadside charges that killed American soldiers, and attacking civilians in Afghanistan and Pakistan.
Hadi is the only case of a professionally trained soldier to go before the war court.
He was part of Saddam Hussein’s army, a non-commissioned officer in the 1980-88 Iran-Iraq War, according to his American lawyers, then fled Iraq for Afghanistan after Hussein had troops invade Kuwait but before the start of Operation Desert Storm. He has been held at Guantánamo as Abd al Hadi al Iraqi since April 2007.
Before his 2007 transfer to the U.S. Navy base, he was held in secret CIA custody.
The name change was a puzzlement, and the prosecution didn’t weigh in on the question. His 2013 charge sheet includes nine different alleged aliases, one with the first name Nashwan but no variations of Tamir.
Adding to the puzzle, a CIA profile of the captive released on his arrival Guantánamo called his “true name” Nashwan Abd al-Razzaq Abd al-Baqi.
Waits announced that he had been calling the captive “Mr. Hadi” after consulting him on how he would like to be addressed at his June 2014 arraignment and would continue to do so.
Editor’s note: An earlier version of this story quoted an attorney as saying there was a deposition in the Southern District of New York made under the name of Nashwan al-Tamir. It was made in a New York case, but under the name of Hadi al Iraqi.