By John Ryan | May 20, 2016 | Guantanamo Bay, News & Features
Photo of Brent Rushforth provided by his firm, McKool Smith.
Guantanamo Naval Base, Cuba – The gears of justice at Guantanamo Bay continue to grind forward in ever more legally fascinating ways. In this week’s single half-day session, a defendant charged with war crimes for his alleged role with al Qaeda arrived not only with a new legal team but a new name.
With his legal counsel, the man charged as Abd al Hadi al Iraqi now has an all-star team with wide-ranging trial and appellate experience, led by McKool Smith litigator Brent Rushforth and backed by University of California at Irvine Law School Dean and constitutional scholar Erwin Chemerinsky. Both have joined the case on a pro bono basis.
Perhaps of equal note, Abd al Hadi al Iraqi’s lawyers now claim prosecutors have the wrong man. Their client, they say, is actually named Nashwan al Tamir and was not a member of al Qaeda.
On Tuesday, the defendant – his official court name will remain Hadi for now – expressed satisfaction with the four new lawyers sitting beside him in the highly secure Courtroom II of the Camp Justice complex.
Last September, the judge on Hadi’s military commission, Navy Capt. J.K. Waits, granted Hadi’s request to have his appointed military lawyers removed from the case. On Tuesday morning, Waits confirmed with Hadi the names of the new team members – Rushforth along with Army Majors Robert Kincaid and Wendall Hall, and Navy Lt. Commander Keith Lofland – and asked if this met his wishes.
“Yes, I do like that,” Hadi said in Arabic.
The slim, white-bearded defendant faces a life sentence for numerous alleged war crimes as an al Qaeda commander in Afghanistan and other locations. A trial date is not set in the case.
Under commission rules, he is only entitled to a government-paid military lawyer because he is not facing the death penalty. All death-penalty defendants receive both military lawyers and experienced capital defense lawyers at the public’s expense.
However, the commission’s chief defense counsel can assign civilian lawyers to non-capital defendants from a pool of approved pro bono applicants.
Rushforth served as a deputy general counsel for the Department of Defense in the Carter administration and also is a former chairman of the Center for Law in the Public Interest. He joined the Washington, D.C., office of McKool Smith in 2012, where he has specialized in antitrust litigation. He also began handling habeas petitions for Guantanamo detainees in 2005. This is his first case before the military commission system set up by President Bush and continued in its amended form under President Obama.
In a meeting with the media after the hearing, Rushforth said that McKool Smith was supportive of his decision to take the case, though his time spent on paid work will decrease significantly.
He will have help from four additional pro bono civilian lawyers not present for the hearing, including Chemerinsky, a perennial member of Lawdragon’s “Leading Lawyer” lists. “He is going to be our constitutional law guru,” Rushforth said.
Also on the Hadi team is fellow McKool Smith litigator Robert Palmer, who worked on past habeas cases with Rushforth. Palmer was an assistant special prosecutor during Watergate and later served as President of the Arizona Center for Law in the Public Interest.
In court Tuesday, Rushforth criticized the government for “slow-rolling” security clearances for the new civilian attorneys. His team sought a continuance of the proceedings until the team was complete, and in fact had wanted this week’s hearings postponed.
Rushforth told Waits that he found it “a little rich” for prosecutors to contend his team could move forward as is.
“In all the years I've been litigating cases in federal court, the other side has never been able to tell me what my team is,” he said.
One of the prosecutors, Navy Lt. Commander Vaughn Spencer, pointed out that Hadi is only entitled to a single military lawyer under the law – and he now has three military lawyers along with the new lead, Rushforth. In addition, the prosecution had agreed to holding off on hearings until Rushforth was cleared to access all information related to the case.
“He is adequately represented by civilian counsel, with more experience than I've been alive apparently, and dating back to the Carter administration, perfectly capable of proceeding in the current proceedings and three military counsel with probably 30 years of military justice between them,” Spencer said. “The accused is adequately represented.”
Spencer said that his side did not know about the four new civilian lawyers until the night before. He added that the prosecution “has very little ability” to speed up the clearance process, and that a member of his team was also waiting for a security clearance to be approved.
Waits responded that he wasn’t interested in “who's got it worse.” He earlier noted that the security-clearance process was not “a model of efficiency” and that Rushforth’s clearances seemed to move forward with “record” speed.
The judge agreed that some of the case’s pending motions could move forward while the clearance process was ongoing for the additional defense lawyers. The parties spent the balance of the hearing, which ended at about 12:40 P.M., discussing what motions to put on the calendar for the next scheduled session in July. Hadi’s commission is in recess until then.
Name Change for Defendant
Military commission sessions generally do not proceed from start to finish without an odd twist or turn. Near the start of Tuesday’s hearing, Rushforth told Waits that his client’s name was not Abd al Hadi al Iraqi but instead Nashwan al Tamir. He added that his team would be using Nashwan al Tamir going forward.
Waits said he wouldn’t stop him from doing so. But he said that prior to the defendant’s 2014 arraignment, his defense lawyers said their client wanted to be referred to as Abd al Hadi al Iraqi.
“So I will continue to refer to him as ‘Mr. Hadi’ until such time as this issue is resolved,” Waits said. “I've been doing it for two years.”
In their post-hearing meeting with media, the new defense team said that the government has charged the wrong man.
“He’s not the guy they think he is,” Rushforth said. “He’s not al Qaeda. They can’t prove it.”
Also Tuesday, Waits allowed Hadi’s new lead lawyer to voir dire him to probe for potential conflicts that might disqualify the judge from the case. Among the questions, Rushforth asked if Waits had ever “authorized the destruction or deletion of evidence” related to the case.
In doing so, Rushforth was referencing recent news reports that defense attorneys for alleged 9/11 plot mastermind Khalid Sheikh Mohammed had filed a motion alleging that the judge on that military commission – separate from Hadi’s case – had authorized the destruction of certain evidence at the prosecution’s request. The Mohammed team, led by David Nevin, is seeking the recusal from that case of both the judge, Army Col. James Pohl, and the prosecutors.
Waits was not aware of the article. He said, though, that under military commission rule 505 – which covers the handling of classified information – judges do approve “deletions” of evidence before it is handed over to the defense.
“Outside the 505 context,” Waits said, he had not approved any deletions.
During the hearing, the Hadi team expressed great discomfort with the 505 process, which is modeled on Classified Information Protection Act (CIPA) procedures in federal court cases. The process allows ex parte communications between the government and judges in which prosecutors propose redactions, summaries and substitutions of classified evidence to which the defense is entitled.
The lead prosecutor on the Hadi commission is Felice Viti, a veteran prosecutor from the U.S. Attorney’s office in Utah who successfully prosecuted Brian David Mitchell for the kidnapping and rape of Elizabeth Smart. He pointed out that CIPA had been around for a long time and suggested that everybody “familiarize” themselves with the procedures.
Rushforth said he appreciated the suggestion but would nevertheless “attack” the process if he could find a way.
Viti asked Waits if there was any reason why he could not impartially preside over the case.
“Absolutely not,” the judge answered. “No doubt in my mind.”
On Tuesday, Rushforth did not make a challenge to Waits staying on the case, though he could at a later time.