New snag stalls war crimes hearing, sidelines Elizabeth Smart case prosecutor

Federal prosecutor Felice Viti leaves the Salt Lake City federal court house on Nov. 4, 2010 at the start of a trial for Brian David Mitchell, accused of the 2002 kidnapping of Elizabeth Smart.
Federal prosecutor Felice Viti leaves the Salt Lake City federal court house on Nov. 4, 2010 at the start of a trial for Brian David Mitchell, accused of the 2002 kidnapping of Elizabeth Smart. GETTY IMAGES

The Pentagon’s latest bid to hold a hearing at the war crimes court hit a snag in the first morning of an Iraqi detainee’s’ two-week session Wednesday, when the judge ruled there was a conflict created by the appointment of a U.S. Marine defense attorney to two ongoing cases.

Navy Capt. J.K. Waits, the judge, sought to press forward after ruling that the accused terrorist, Abd al Hadi al Iraqi, had two military lawyers unburdened by the conflict. Hadi, accused of commanding al-Qaida’s army after 9/11, replied that he had lost confidence in his entire Pentagon-appointed defense team over the episode.

Waits recessed the case indefinitely until Hadi could consult with the conflicted lawyer, who wasn’t at this remote outpost for this week’s hearings.

Prosecutors had hoped to get the case moving with more than a dozen live witnesses at a 10-day military commission’s version of a show-cause hearing, and a new federal attorney who had prosecuted the Elizabeth Smart kidnap and rape case.

But the new prosecutor, Felice Viti of the U.S. Attorney’s office in Utah, never uttered a word before Hadi’s lead defense counsel, Marine Lt. Col. Thomas Jasper, announced in court that evidence the prosecution was using to try to show Hadi was an “unprivileged enemy belligerent” included a Guantánamo jailhouse chat between Hadi and a Sept. 11 defendant, Mustafa al Hawsawi. On paper, the two men have the same defense lawyer, Marine Lt. Col. Sean Gleason.

Gleason became Hadi’s first defense attorney after he got to Guantánamo in 2007 in an ongoing churn of attorneys through the on-again, off-again war court’s bar. Hadi never released him before the Pentagon’s Chief Defense Counsel assigned Gleason to help defend Hawsawi in the Sept. 11 case. Now the evidence of one was to be used against the other.

“Regrettably we’re in a little bit of a limbo,” the judge declared.

Hadi, who had earlier objected to be handled by female guards, had come to court without incident, dressed in white traditional garb, and expressed frustration at the situation. “I’ve been working with Jasper based on wrong information,” he told the judge.

The hearing was supposed to be the first at the war court since March.

The USS Cole capital case is on hold while prosecutors appeal another judge’s decision to a Washington, D.C., based panel — after the Obama administration figures out how to get military members of the panel confirmed by Congress. The Sept. 11 hearings, slated to resume Aug. 24, have been stymied for months by sealed Justice Department notices to that case’s judge about an FBI investigation of defense teams in the case against Khalid Sheik Mohammed and four others accused of conspiring to commit 9/11.

Wednesday’s events sidelined the war court debut of Viti, who until recently served as an assistant U.S. attorney in Utah. In 2011, he got a life sentence for Brian David Mitchell, a self-styled street preacher, who was convicted of abducting Elizabeth Smart at knifepoint from her Salt Lake City bedroom and then raping her in 2002.

Elizabeth, then 14, was held captive for nine months in a case that gripped the nation and confounded law enforcement officials. Mitchell’s sentence and conviction capped a protracted legal odyssey that for a time found the kidnapper mentally unfit to stand trial.

In this case, Iraqi, 54, is accused of commanding al-Qaida’s army in Afghanistan after the 2001 U.S. invasion and could be sentenced to life in prison if convicted. The U.S. government alleges that fighters who answered to Hadi committed a series of war crimes, including shooting at a U.S. military med-evac helicopter, setting roadside charges that killed American soldiers and attacking civilians in Afghanistan and Pakistan.

Hadi has asked for a civilian lawyer, but is not automatically entitled to one under the rules for military commissions because his is not a capital case. His is the only case of 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 for more than eight years.

Both U.S. military defense and prosecution attorneys have come and gone from the case. Hadi was represented at his June 2014 arraignment by Army Reserve Col. Chris Callen, who returned to civilian life and was replaced by Jasper in September. Air Force Maj. Ben Stirk, a deputy defense counsel, has been the only defense lawyer to appear at all five hearings.

Viti came to court as the deputy to the case prosecutor, Army Lt. Col. David Long. He essentially replaced Mikael Clayton, another federal attorney, who left government service. He joined a team of four other prosecutors, Long; Navy Cmdr. Kevin Flynn; Army Maj. Joshua Bearden; and Navy Lt. Cmdr. Vaughn Spencer. They made their first appearances in court, too.

After court Wednesday, Jasper said the unresolved dual representation issue demonstrates a structural flaw with the war court created by President George W. Bush and reformed by President Barack Obama.

“Now you have a 9/11 accused whose attorney has information against Hadi al Iraqi,” he said, “and that’s clearly unfair to Hadi al Iraqi going forward.”

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