[JURIST] A US military lawyer for a Guantanamo Bay detainee argued Monday that the detainee, who is described as an al Qaeda commander, may be classified as a soldier according to international war rules and thus exempt from prosecution. The lawyer asked a judge to dismiss the charges against Abd al Hadi al-Iraqi, who is accused of commanding attacks on coalition forces in Afghanistan, killing civilians and conspiring to assassinate Pakistani president Pervez Musharraf. The lawyer said Article 5 of the Third Geneva Conventions of 1949 [text] might classify the detainee as a “lawful combatant” and grant him immunity from prosecution for acts of war. More evidence is needed to determine his status. In 2006 the Supreme Court ruled in Hamdan v. Rumsfeld [JURIST report] that al-Qaeda members were not “lawful combatants” exempt from criminal prosecution under Article 5.
Guantanamo Bay [JURIST backgrounder] remains the subject of legal debate, and the detention facility has come under criticism in 2014 for treatment conditions, prisoner exchanges and prolonged release dates. In October the US Department of Justice filed a motion in the US District Court for the District of Columbia seeking to stay an order issued by the court requiring the public release of 28 videos [JURIST reports] showing the forcible removal and forced feeding of Guantanamo Bay detainee Wa’el Dhiab. In June US President Barack Obama announced that prisoner of war Bowe Bergdahl was released into US custody in exchange [JURIST report] for five detainees held at Guantanamo Bay. Bergdahl was the only confirmed US prisoner of war from the conflict in Afghanistan remaining in enemy custody. JURIST Guest Columnist Jonathan Hafetz of the Seton Hall University School of Law discusses the lessons offered by the Bergdahl exchange [JURIST op-ed] as they relate to US policy on Guantanamo. In April Human Rights Watch published a letter to Obama, urging the US to expedite the return of Yemeni detainees [JURIST report] cleared for release from Guantanamo.