The transfer of the five men leaves 122 inmates at the remote prison located at a US naval base in southeastern Cuba. PHOTO: REUTERS
The trial for Abd al Hadi al Iraqi at the Guantanamo Bay military prison in Cuba is an international tribunal but prosecutors are using domestic laws to try him, said defense attorney Air Force Major Ben Stirk.
"That's not the international law of war," Stirk said in a pre-trial hearing.
Hadi al Iraqi is charged with being an al Qaeda commander who led attacks against US and coalition troops in Afghanistan from 2002 to 2004.
The Pentagon also accuses him of plots to assassinate Pakistan's then-president, Pervez Musharraf.
His attorneys say charges that Hadi al Iraqi conspired to commit murder were based on US law rather than the international law of war that could protect combatants from criminal liability.
Arguing against the defense motion, Assistant US Attorney Mikeal Clayton said a broad definition of the law of war could help militants "mask or shield themselves from liability."
The US Military Commissions Act preserves the defendants' rights to counsel, to avoid self-incrimination and to be convicted only if there is proof of guilt beyond a reasonable doubt, Clayton said.
He also said accusations that Hadi al Iraqi, who has been imprisoned at Guantanamo Bay since 2007, conspired to commit acts of terrorism meet international standards for criminal prosecution.
Military commission Judge Navy Captain J Kirk Waits did not rule on the motion. Waits touched on a complaint filed against him and a second military judge at Guantanamo Bay by female US military guards who accuse him of sex discrimination.
Waits issued a ban in November against female guards touching prisoners.
The ban came after Hadi al Iraqi and other detainees complained that being touched by women to whom they are not married violates Islamic religious doctrine.
The complaint filed last week said Waits' order violated federal rules that prohibit gender-based and other discrimination in employment.
Waits said he should not need to excuse himself from the case.
"My impartiality cannot reasonably be questioned," he said.
Waits is scheduled to hear arguments on the guards issue on Wednesday. The hearing was monitored by closed-circuit television at a media center at Fort Meade, outside Washington.
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