Defense says Guantanamo detainee is soldier, exempt from war crimes

Reuters News
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Posted: Nov 17, 2014 5:17 PM

By Tom Ramstack

FORT MEADE Md. (Reuters) - A U.S. military lawyer for a Guantanamo Bay, Cuba, detainee described as an al-Qaeda commander said on Monday he may be classified as a soldier under international war rules - and therefore exempt from prosecution - so charges against him should be dropped.

Marine Lieutenant Colonel Tom Jasper asked a judge to dismiss multiple charges against Abd al Hadi al-Iraqi, accused of commanding attacks on coalition forces in Afghanistan, killing civilians and conspiring to assassinate Pakistani President Pervez Musharraf.

Jasper said Article 5 of the Third Geneva Conventions of 1949 might classify Hadi al-Iraqi as a "lawful combatant" and, as a prisoner of war, grant him immunity from prosecution for lawful acts of war.

“The bottom line, sir, is that at this point Hadi al-Iraqi could not be tried by this tribunal,” Jasper told the judge during the hearing at the Guantanamo Bay prison that was shown over closed-circuit television at Fort Meade, Maryland, media center.

More evidence and hearings are needed to define Hadi al-Iraqi’s status, Jasper said.

But Justice Department attorney Mikeal Clayton argued Hadi al-Iraqi should be classified not as a soldier but as a terrorist. He faces the possibility of life in prison on the charges.

State Department officials said Hadi al-Iraqi was chosen by Osama bin Laden to oversee al-Qaeda’s operations in Iraq, including commanding terrorist training camps.

Clayton said al-Qaeda propaganda videos describe him as “a hero to al-Qaeda’s cause."

The Supreme Court, ruling in 2006 in the case of Hamdan v. Rumsfeld, found al-Qaeda members were not Article 5 “lawful combatants” exempt from criminal prosecution. In addition, Congress authorized the trials of al-Qaeda agents under the 2009 Military Commissions Act.

Hadi al-Iraqi, 53, was captured in 2007 and has been held at the U.S. military prison at Guantanamo Bay as a "high-value detainee."

In a separate issue, Hadi al-Iraqi’s attorney in a court filing asked the judge to order the military to cease using female guards to shackle him. The request came after he resisted a female guard's attempt to shackle him after he met with his legal team, prompting four male guards to forcibly restrain him.

“Mr. Hadi al-Iraqi’s Muslim faith requires him to avoid physical contact with any females to whom he is not married or related,” his lawyer said in the documents.

(Editing by Barbara Goldberg and Bill Trott)