Defense lawyers for a man accused of war crimes as commander of al-Qaida's post 9/11 army in Afghanistan on Tuesday protested a litigation timetable toward a mid-2019 trial, saying defense preparation only began in earnest in 2016, and the legal team is in flux.
No trial date has been set, prosecutor Vaughn Spencer replied, arguing that in his nearly five years on the case the Pentagon has staffed the defense team of Abd al Hadi al Iraqi appropriately.
Hadi, who says his true name is Nashwan al Tamir, fled his homeland of Iraq for Afghanistan in the early 1990s. He was captured in Turkey in 2006, held by the CIA for 170 days and brought to Guantánamo in April 2007. He was charged in June 2014 with commanding pro-Taliban and al-Qaida insurgents in Afghanistan that carried out war crimes, such as remote-control bombings of U.S. and allied troops and targeting civilians. If convicted, he could be sentenced to life in prison.
Marine Col. Peter Rubin, the judge, has issued a litigation schedule of legal and evidentiary challenges, according to those who have seen it, that has the defense and prosecution exchanging witness lists later this year, a last step toward starting the national security trial. The timetable sets April 5 as the prosecution deadline to submit an amended convening order, essentially an updated list of U.S. military officers who could serve as Hadi's jury. The document was still undergoing a review by the U.S. intelligence community to see what parts of the judge's order the public will be allowed to see.
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Pentagon-paid defense lawyers used a half-day hearing to argue that they have been inadequately resourced to defend a man who was held in a CIA Black Site and where — although no "enhanced interrogation techniques" were employed, according to a Senate study — his lawyer Adam Thurschwell said Tuesday he was "threatened with torture."
Defense lawyers are challenging confusing classification or over-classification of documents; discovery that does not let them discern if other former CIA captives' tortured testimony was used in his interrogations; and a slow process in getting Top Secret clearances for coming members of the defense team.
Coerced or tortured evidence is not allowed under the current format for the war court created after the Sept. 11, 2001, terror attacks. And prosecutors say they will only use at his trial what he told the FBI voluntarily after he arrived at Guantánamo. But his lawyers want underlying evidence, such as interrogation plans, to see whether the agents' questions were prompted by Black Site threats or the torture of other CIA captives.
One key issue is whether, as Spencer argued, the Iraqi is only entitled to a military defense attorney and no paid civilian lawyer. He currently has four military attorneys a civilian lead counsel and four pro-bono volunteers.
Thurschwell, who is on leave from serving as general counsel at the Military Commissions Defense Organization, argued in court that the Chief Defense Counsel, Marine Brig. Gen. John Baker and former war court overseers agreed that for a complex national security case like Hadi's he needs a more robust team: three full-time government-paid civilian counsel with federal criminal defense experience plus military defense attorneys and a support staff to include three intelligence analysts, two investigators and four paralegals.
For Tuesday's half-day hearing, Hadi returned to court in a wheelchair, and used a walker to transfer to a hospital-style rehabilitation chair he was prescribed as part of his recovery from a series of four spinal surgeries to prevent paralysis after degenerative disc disease left him incontinent. Judge Rubin offered him frequent recesses to cope with residual pain from the surgeries.
In one 15-minute break, he used his walker to do three 12-foot laps in the court, a sign that he is slowly recovering toward trial. One of his lawyers said he may yet face another surgery on his back, and asked the judge to order the prison to extend the lease on an MRI until September, a year after Hadi's first spinal surgery.
The judge did not rule, and prosecutors urged Rubin to not interfere with prison management. The scanner was brought to the base for forensic purposes to study the brain of a Saudi captive accused of orchestrating the 2000 USS Cole bombing that killed 17 American sailors. The Saudi faces a capital trial and, his lawyers argued before quitting that case, proof of brain damage could spare the former CIA prisoner the death penalty.