Chief Prosecutor Statement on This Week's Hearing in Al-Hadi

Good evening. Before turning to the proceedings scheduled for this coming week, I wish to update observers interested in United States v. Al Nashiri on the interlocutory appeal previously pending before the U.S. Court of Military Commission Review (“U.S.C.M.C.R.”). In September, the government appealed to the U.S.C.M.C.R. from the Military Commission’s dismissal of the charges related to the attack on the MV Limburg. Last Wednesday, the U.S.C.M.C.R.’s reviewing court, the U.S. Court of Appeals for the District of Columbia Circuit, entered an order staying the appeal so that it could consider the Accused’s constitutional challenges to the appointments of the military judges serving on the U.S.C.M.C.R. According to the D.C. Circuit’s order, merits briefing will be complete in December, with oral argument to follow.

This week, the Military Commission convened to try the charges against Abd al Hadi al-Iraqi will hold its second series of sessions without panel members present since he was arraigned on 18 June 2014. Abd al Hadi was arraigned on charges that he committed serious violations of the law of war by conspiring with and leading others, as a senior member of al Qaeda, in a series of unlawful attacks and related offenses in Afghanistan, Pakistan, and elsewhere from 2001 to 2006. These attacks and other offenses allegedly resulted in the death and injury of U.S. and coalition service members and civilians.

I emphasize that the charges against Abd al Hadi are only allegations. He is presumed innocent unless and until proven guilty beyond a reasonable doubt. Matters under consideration by a military commission in this or any other particular case are authoritatively dealt with by thepresiding judge, and any comments addressing systemic issues that are the subject of frequent questions by interested observers should always be understood to defer to specific judicial rulings, if applicable.

Since the last pre-trial sessions in September, the Commission has issued an order to protect against the disclosure of classified national security information. AE 13I. The protective order the government originally proposed to the Commission in July included a provision requiring defense-team members to sign a memorandum of understanding routinely required of counsel who receive classified information in discovery. AE 13. This memorandum requires defense-team members to protect genuine sources and methods while handling classified information provided to them in discovery. Although the Commission excepted this provision from the protective order it issued in September (AE 13D), it later reconsidered its decision upon government motion, detailed the “expedient and practical protections” it found the memorandum provides, and then amended the protective order to require defense-team members to sign the memorandum (AE 13I). The protective order is consistent with those governing national security cases in federal civilian courts. Interested observers can compare it—along with the memorandum of understanding—to protective orders issued by federal civilian judges in criminal prosecutions in national security cases. These orders are available at www.fjc.gov.