An Iraqi captive accused of commanding al-Qaida’s army in Afghanistan after the Sept. 11 attacks appeared in war court Tuesday with his lawyers seeking a freeze in proceedings over four missing civilian counsel.
Also, the Pentagon revealed that the case’s lone civilian prosecutor had packed up and returned to Utah. Assistant U.S. Attorney Felice J. Viti had served as the top case prosecutor of the Iraqi, who announced in court in May that his true name is Nashwan al Tamir.
The captive was charged in June 2014 as Abd al Hadi al Iraqi, accused of 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.
Now, he faces an all-military prosecution team led by Navy Commander Douglas Short of four Navy JAGs and a Marine.
In May, when the 50-something captive last came to court, his attorneys announced that he wanted to be called by his “real name,” Nashwan al Tamir, something the judge, Navy Capt. J. Kirk Waits, has so far rejected. The gray-bearded defendant sat silently throughout Tuesday’s proceedings in traditional white attire.
They also announced the addition of four voluntary unpaid civilian attorneys to the team, including constitutional law expert Erwin Chemerinsky, dean of the law school at the University of California at Irvine; Catherine Moore; Robert Palmer; and Jimmy Szyamanski. Since then, none of the four has received security clearances to come to court or meet the client, and Hadi’s defense team is asking the judge to halt the proceedings until they do so.
A prosecutor, Navy Lt. Cmdr. Vaughn Spencer, said the defense was misreading the law and that a non-capital military commission defendant — meaning a defendant who is not facing the death penalty — was entitled to one civilian lawyer. He asked the judge to “make clear to the defense, this issue is settled” and move forward with this team as currently constituted.
Spencer also accused defense lawyers of purposefully trying to delay progress. Palmer and Szyamanski were already granted interim clearances to do some case work, Spencer said, and Chemerinsky had yet to complete his paperwork.
“We need the counsel,” said Washington, D.C., lawyer Brent Rushforth, the lead defense attorney, who claimed that Chemerinsky had already completed his paperwork. Since his June 2014 arraignment, the Iraqi has been asking for civilian defense counsel. He currently has Rushforth plus three military lawyers.
Defense lawyers say the case will turn on constitutional questions, and they want Chemerinsky and the others to prepare for the trial, of which the date has not been set.
At issue, said Rushforth, is whether Guantánamo is “a Constitution-free zone.”
The judge invited case prosecutors to wade into the question of whether the U.S. Constitution applies at the war court that President George W. Bush built and President Barack Obama reformed. “This is not a court in the United States,” Waits told Spencer. “Why aren’t you talking about that?” Waits asked him.
Spencer replied that the prosecution doesn’t want Waits to reach the Constitution question, and that the judge can decide based on constitutional avoidance. Then Rushforth replied, you can’t argue the doctrine of constitutional avoidance unless the prosecution agrees that the Constitution applies at Guantánamo.
“Interesting argument,” the judge interjected.
The deputy chief prosecutor, Army Col. Robert Moscati, said on the eve of the hearing, “we the prosecution don’t control the pace of security clearances,” calling it “not within our control.” He also expressed no concern over the defendant’s “use of a different name.”
Reporters learned of the disappearance of Viti as the lead prosecutor when he didn’t come off the plane that brought the judge, lawyers and other court support staff on Saturday. As a federal prosecutor in Utah, Viti handled the 2011 Elizabeth Smart kidnap and rape case and won a life sentence — the same penalty prosecutors seek for the Iraqi.
The prosecution said through a Pentagon spokeswoman that Viti’s one-year assignment to the military commissions expired this month, and he returned to his home district in Utah. Viti worked at the war court’s prosecutor’s office from 2007 to 2009 and also at the New York trial of the only Guantánamo captive to face prosecution in federal court, Ahmad Ghailani, who got a life sentence.