https://www.usnews.com/news/articles/2014/11/17/accused-al-qaida-leader-in-court-at-guantanamo
GUANTANAMO BAY, Cuba – Accused senior al-Qaida leader Abd al-Hadi al-Iraqi got another day in court Monday during a pretrial hearing in the case against him.
Sitting in a courtroom 1,393 miles north of the equator, the alleged adviser to Osama bin Laden – garbed in a white, ankle-length robe and turban – sat and stroked his beard while listening to members of both the prosecution and defense teams debate two defense motions: a motion to dismiss for lack of subject-matter jurisdiction, and a motion to strike common allegations.
Al-Hadi was captured in Turkey and arrived at Guantánamo Bay in April 2007, said Marine Lt. Col. Tom Jasper, one of his defense attorneys. He faces war crimes charges related to the use of explosives and suicide bombers against U.S. and allied troops in Afghanistan.
Al-Hadi’s charges are based on the theory that he was not a legitimate soldier, according to The Associated Press. If deemed one, Jasper said he could be granted immunity for acts of war, according to Reuters.
For the motion to dismiss for lack of jurisdiction, Jasper argued the U.S. government is responsible for determining what type of prisoner al-Hadi actually is: a prisoner of war or a person who was captured during an armed conflict.
The defense claims that al-Hadi did not receive a fair hearing to establish his status after his capture. His lawyers asked that all proceedings related to his case be suspended until such a hearing can take place.
It is up to the judge – Navy Capt. J. Kirk Waits – to determine whether a hearing should take place.
In order to be labeled a POW, individuals must meet conditions such as the following under the Geneva Conventions:
Membership and armed force status in a party fighting in a conflict
Membership in a militia that has volunteered to fight for a party engaged in conflict as long as they are under the command of someone responsible for his subordinates, have a distinctive insignia of said party recognizable at a distance, carry arms openly and conduct operations in accordance with the laws and customs of war.
Have a relationship to a combatant party, such as a crew member, war correspondent or contractor.
If such a hearing is ordered to take place and al-Hadi is indeed found to be a POW, the defense argues that he should “be released and repatriated.” The prosecution contends al-Hadi is not entitled to such a hearing.
The second motion initiated by the defense asked that 63 allegations listed on al-Hadi’s charge sheet in addition to the original five charges be stricken because they “are extremely prejudicial to the accused.”
“The charges are perfectly clear,” said Air Force Maj. Ben Stirk, another of al-Hadi's defense attorneys. “There is no need for the allegations … they are a cheat sheet for the government … They’re inflammatory."
Stirk said if the added allegations are allowed to remain on al-Hadi's charge sheet, they could serve as bullet points outlining the prosecution’s argument and would be readily accessible to members of the jury.
The prosecution argued the allegations were succinct and allowed for a “plain, concise and definite” charge sheet.
If the judge sides with the prosecution and allows the allegations to remain, the question of whether the prosecution must prove all 63 allegations or just one as normally required would still remain.
Al-Hadi's case is considered by some to be unique because it deals with accusations related to over a decade’s worth of alleged transnational terrorism.
