Terrorism Trials & Investigations

Military Commission Charges Sworn Against Abd Al Hadi Al-Iraqi

By Wells Bennett
Monday, June 10, 2013, 8:16 PM

So we learn from these charging documents, and from the Department of Defense's press release.  The latter says, among other things:

     The Department of Defense announced today that military commission charges have been sworn against Guantanamo detainee Abd al Hadi al Iraqi, an Iraqi national.

The charges allege that Abd al Hadi, as a senior member of al Qaeda, conspired with and led others in a series of perfidious attacks and related offenses in Afghanistan from 2001 to 2004.  "Perfidy" is an offense triable by military commission in which those who are the targets of attack are killed, injured, or captured after the attackers have "invit[ed] the confidence or belief... that [the attackers] were entitled to... protection under the laws of war."  The charges allege--

•  that Abd al Hadi joined al Qaeda by 1996;

•  that, in furtherance of the group's hostile and terrorist aims, he served as a high-ranking leader on various senior councils that set al Qaeda's agenda and policies;

•  that he was a significant al Qaeda liaison to the Taliban, to al Qaeda in Iraq, and to other allied groups;

•  that Abd al Hadi commanded al Qaeda's insurgency efforts in Afghanistan and Pakistan, during which he supported, supplied, funded, and/or directed attacks against U.S. and coalition forces;

•  that these operations made use of a variety of unlawful means, including attacking civilians, detonating vehicle borne improvised explosive devices (VBIEDs) in civilian areas, detonating suicide vests in civilian areas, and firing upon a medical helicopter as it attempted to recover casualties; and

•  that Abd al Hadi directed his fighters to kill all coalition soldiers encountered during their attacks, thereby denying quarter to potential captive or wounded coalition soldiers.

Following his tenure as commander of al Qaeda's insurgency in Afghanistan and Pakistan, the charges allege that Abd al Hadi continued his liaison role with al Qaeda in Iraq and was ultimately assigned by Usama bin Laden to travel to Iraq to assume a position among the leadership of al Qaeda's insurgency there.

The maximum sentence for these charges, should the accused be convicted, is confinement for life.  These charges are merely accusations.  The accused is presumed innocent unless and until proven guilty beyond a reasonable doubt. 

On first glance, the charges seemingly include more established war crimes---denying quarter, perfidy, and attacking protected property.  And note what's not included: material support or freestanding conspiracy counts.  To be sure, there is a theory of vicarious liability in play, apparently: with respect to perfidy, attempted perfidy, and attacking protected property counts, the charge sheet says Al-Iraqi is liable "as a principal and co-conspirator, and as a participant in a common plan," as described in a set of allegations common to certain charged offenses.  Elsewhere, the prosecution filing elaborates:

These common allegations set forth the manner and means by which the accused, Abd al Hadi al-Iraqi ("Abd al Hadi") (see Appendix A for a list of aliases), and his co-conspirators participated in a common plan and agreement, and aided, abetted, counseled, commanded, and procured the commission of each of the offenses listed al Charges II though IV. Further, these common allegations set forth the manner and means by which the accused, by virtue of his position as a superior commander, knew, had reason to know, and should have known that a subordinate was about to commit such acts and had done so and the accused failed to take the necessary and reasonable measures to prevent such acts and to punish the perpetrators thereof.

The accused, a person subject to trial by military commission as an alien unprivileged enemy belligerent, did, from in or about 1996 to in or about late 2006, at multiple locations, in the context of and associated with hostilities, knowingly conspire and agree with individuals, known and unknown, to commit substantive offenses triable by military commission for the purpose of, among other purposes, forcing the United States, its allies, and non-Muslims out of the Arabian Peninsula, Afghanistan, and Iraq. To that end, the accused and his co-conspirators committed the following overt acts to accomplish the objectives and purposes of the conspiracy . . .

(Prosecutors omit "common plan" language, so far as concerns their claim that Al-Iraqi ordered subordinates to deny quarter during combat in Pakistan and Afghanistan.)

The sworn charges now will be reviewed by the Convening Authority.