Last Week at the Military Commissions, Feb. 5–13: More New Proceedings in Al-Iraqi (Part 2 of 2)

Proceedings in the military commission of alleged al Qaeda commander Abd al-Hadi al-Iraqi continued Feb. 5–6 and then again more than a week later on Feb. 13 at Guantanamo Naval Base, with military judge Army Col. Peter Rubin presiding. The commission met for a half day on Feb. 5 to continue discussing matters raised in prior days and for twenty minutes on Feb. 6 so that Rubin could issue rulings on a number of pending motions before the court. It then reconvened on Feb. 13 to discuss several more outstanding motions regarding discovery, treatment of al-Hadi, and his lawyers’ ability to communicate with him given his health condition.

Preliminary Housekeeping

Kicking off the Feb. 5 session, Rubin announced he was denying the defense’s motion for the assistance of outside expert Dr. Richard Leo in preparation for the cross-examination of defendant-turned-government witness Ahmed al-Darbi, as well as its motion for production (or in camera review by the judge) of discoverable information in al-Darbi’s mental health and psychotherapy records. The judge also ordered that the record for the Jan. 31 argument on Appellate Exhibit (AE) 096 be unsealed and heard the government’s request for an order to protect certain witnesses’ identities and allow them to testify under pseudonym. Rubin then continued with docketed items, offering the parties the opportunity to discuss the neurosurgeon’s testimony the day before about al-Hadi’s medical competence to stand trial and to argue AE 107A, the defense motion for a continuance of the deposition of al-Darbi until the April session.

Al-Hadi’s Medical Status

Civilian defense attorney Adam Thurschwell discussed the neurosurgeon’s Feb. 4 testimony about al-Hadi’s medical condition, asserting that the doctor conceded he could only make assessments as to al-Hadi’s ability to be transported without suffering additional physical harm—and not his ability to be fully engaged in the preparation and presentation of his defense. Thurschwell argued that al-Hadi’s legal competence to stand trial turned on the latter, rather than the former, and that the defendant’s current pain levels were too severe to continue back-to-back full-day sessions. The defense proposed a modified schedule: a four-day cycle of two half-days in court followed by two days out of court for attorney-client meetings and to allow al-Hadi to rest.

Defense Motion for a Continuance

Thurschwell next addressed the defense motion for a continuance of the al-Darbi deposition until April, calling the delay necessary to protect al-Hadi’s constitutional and statutory rights to participate meaningfully in his defense. In support of this request, Thurschwell argued that the defendant’s need for extensive medical care had prevented the defense team from meeting face-to-face with him for several months, impeding their preparations for the deposition cross-examination; that even if counsel had been able to meet with al-Hadi in person, they would have been prevented on ethical grounds from discussing substantive matters for the reasons set forth in AE 101, mirroring the allegations raised in the other active commissions about intrusions on attorney-client privilege; and that the government failed to mark for release to al-Hadi the transcripts of the deposition direct examination of al-Darbi and of Abd al-Rahim al-Nashiri's testimony in his own case, thereby impeding the sharing of relevant written documents with the defendant.

The defense attorney stressed that the defense team had made exhaustive efforts to meet with—and to the extent possible, share critical information with—their client. Any delays were the result of al-Hadi’s serious medical condition and the government’s own actions, not lethargy or intentional stalling by the defense. The continuance would necessitate a delay in the pending transfer of al-Darbi to Saudi Arabia, but that would be a minor inconvenience to the government when balanced against the imperative of protecting al-Hadi’s right to make a meaningful defense. Thurschwell also asked that the commission obtain a declaration from Defense Secretary James Mattis regarding whether al-Darbi’s transfer is still going forward on schedule, in light of the recent executive order to keep the Guantanamo military detention facility open. If the witness’s transfer was delayed for extrinsic reasons, the continuance in the case would not cause any additional interference.

Assistant trial counsel Vaughn Spencer responded for the prosecution, arguing that the medical staff’s determination of al-Hadi’s medical competence to participate, rather than al-Hadi’s subjective declarations of pain, should control whether proceedings can continue. Otherwise, al-Hadi would be able to unilaterally impede the commission’s progress. As long the defendant is medically cleared and the government continues to provide reasonable accommodations, his decision not to meet with counsel or attend court sessions should be deemed a voluntary waiver of his right to participate. Spencer also rejected the defense’s AE 101 argument, reminding the court that the issue had been litigated in other commissions, with rulings in favor of the government and the continuation of proceedings. Finally, he challenged the defense’s assertion that the government was withholding critical discovery, arguing that the defense possessed “99.5 percent, probably” of its requested discovery since last summer and did not officially ask that the transcripts be re-marked for release to al-Hadi until Jan. 14. If the defense was unprepared to proceed with deposition cross-examination of al-Darbi, it was because of their attorneys’ own choices.

Government’s Proposed Way Forward

Rubin next asked Spencer how he envisioned proceedings continuing. Spencer said the government did not object to half-day sessions to accommodate al-Hadi, but he also said he did not believe the defendant had an absolute right to be present for al-Darbi’s deposition. The prosecution team previously insisted upon al-Hadi’s presence during the deposition, and the court issued an order to that effect to preempt future litigation over the admissibility of the deposition on confrontation grounds. But at this point, Spencer argued, al-Hadi’s choice at any point not to participate despite being medically cleared to do so should constitute a voluntary waiver. As in the other commissions, the defendant would sign a written waiver and a staff judge advocate would testify to its voluntariness. That process would not negate the risk of later challenges to the admissibility of deposition testimony, but it was nonetheless the best option in the interest of allowing proceedings to move forward.

Spencer also addressed the defense’s proposal that the commission obtain a declaration from the secretary of defense regarding al-Darbi’s transfer, calling it “an amazing request” without any basis in law. There was no reason for believing that the U.S. government would not comply with the terms of al-Darbi’s pretrial agreement and release him to Saudi Arabia as promised. The transfer date might be altered by decisions on the Saudi end, but regardless, the commission should not throw a wrench in diplomatic arrangements by ordering that al-Darbi remain at Guantanamo until April.

Responding to the prosecution’s request to proceed with al-Darbi’s deposition with or without al-Hadi present, Thurschwell asked the judge for the opportunity to fully brief the matter in writing. The defense attorney thought it would be “futile to hold a deposition outside the presence of the defendant” because the testimony should be inadmissible on confrontation grounds. Allowing its introduction at trial therefore created a significant risk that a conviction, if obtained in the commission, would be overturned on appeal.

Orders on Defense Motions

On Feb. 6, Rubin briefly reconvened the commission to provide decisions on several defense motions. He dismissed AE 101, finding “no evidence or even an allegation of any intrusion into the attorney-client relationship in this case” and that “the defense is not operating under an ethical constraint in meeting with their client.” On the same grounds, he denied AE 106, a motion for appointment of a countersurveillance expert to assist the defense.

Next, he found no evidence that “the accused's attendance at this commission session will endanger his health or further aggravate his medical condition” or that he “is unable to participate in his own defense.” Despite al-Hadi’s medical unavailability for several months, the judge believed the defense had adequate time to prepare for their cross-examination of al-Darbi. The continuance until April requested in AE 107A was therefore unwarranted, and proceedings would continue in a modified schedule designed to enable al-Hadi to participate as much as possible. The commission would follow a three-day cycle of two half-days followed by an off-day either until completion of al-Darbi’s deposition or until Rubin ordered otherwise. Al-Hadi would not be forced to attend the deposition sessions, but they would continue in his absence if he chose not to participate despite being medically cleared.

Finally, Rubin directed the government to re-mark the transcript of al-Darbi’s direct examination for release to the defendant and to process in the normal manner any additional discovery and reclassification requests from the defense.

To give the defense maximum time to prepare for the cross-examination of al-Darbi, Rubin then put the commission in recess until Feb 10.

Al-Darbi Deposition

As Carol Rosenberg reported for the Miami Herald, defense attorneys for al-Hadi questioned al-Darbi for several hours on Feb. 10 and Feb. 11 about the truthfulness of his statements on direct examination, particularly those that implicated al-Hadi. Al-Darbi testified about his treatment while in U.S. custody at the Bagram military detention facility in Afghanistan and in the early years at Guantanamo, and how his living conditions changed after pleading guilty in 2014 and agreeing to cooperate with the government. Likely aiming to discredit al-Darbi’s testimony against al-Hadi, Thurschwell focused on the incentives the witness received in exchange for testimony against his fellow detainees. Once the defense rested on Sunday afternoon, Rubin, acting as deposition officer, brought those proceedings to a close.

Return to Pre-Trial Motions

On Feb. 13, the judge reconvened the commission for a morning session to discuss three additional pending motions: AE 099CC, AE 099HH, and AE 102E. Starting with AE 099HH, a defense motion requesting that the commission prohibit facility guards from forcibly removing al-Hadi from his cell (“forced cell extraction”) except where a dire risk to safety or immediate potential loss of life is foreseeable, Thurschwell reiterated the base medical staff’s recommendation that the defendant be handled gently given his fragile condition. The defense attorney argued that forced cell extractions infringed upon al-Hadi’s constitutional rights, as they demonstrated deliberate indifference to his serious medical needs and amounted to cruel and unusual punishment in violation of the Eighth Amendment. Navy Cmdr. Kevin Flynn responded for the prosecution, arguing that the possibility of al-Hadi being subject to forced cell extraction in the future was “mere speculation,” and there was therefore no basis for the commission to intervene and enjoin the Joint Task Force (JTF) guards. The defense carried the burden of proving imminent and actual harm to the defendant, and had not done so in this case. The government also informed the judge that the JTF commander instructed the guards to comply with the senior medical officer’s recommendations regarding handling of al-Hadi. Thurschwell countered that the JTF policy could be changed at any time, and that the issue was ripe for decision under an exception to the normal standing requirements for when alleged harms are likely to recur but on such a short timeline as to impede legal review. Rubin asked to see documentation of the JTF policy before deciding.

Next, the judge invited argument on AE 099CC, a defense motion to compel production of additional discovery of two broad types: 1) the identities of medical personnel and contact information of medical personnel dealing with al-Hadi since his first emergency surgery in 2017; and 2) evidence of undue or wrongful influence by the JTF elements on the medical opinions being issued, in particular those clearing the defendant for transportation to meetings. The defense claimed to need the information in order to better understand how decisions about al-Hadi’s medical status were made, whether the JTF was acting in good faith in evaluating and providing accommodations for the defendant, and whether the defendant was, in fact, medically competent to stand trial. The prosecution rejected the implied accusation that “the government is involved in pressuring the former SMOs and not taking the accused's...medical health seriously.” The defense, Flynn argued, was abusing the discovery process by going on a fishing expedition based purely on speculation.

Finally, the parties turned to AE 102, a defense motion for the commission to reconsider its denial of a motion to compel the government to grant immediate access to the accused in the hospital. In rejecting the first motion on the basis that the issue was not ripe for decision, Rubin provided the caveat that “the inability of the government to accommodate, in the face of these unfortunate circumstances in-person or even telephonic attorney-client communications, will be weighed in consideration of future requests for continuances or appropriate relief." Because al-Hadi’s condition remained unstable and there was a significant likelihood that he’d need additional surgery or other treatment, Thurschwell argued that it was necessary for the defense attorneys to be able to meet with the defendant in the hospital, rather than exclusively in designated attorney-client meeting spaces. Assistant trial counsel Spencer provided the rebuttal for the government, calling the issue moot or at least not ripe because the defense team had not encountered any trouble meeting and otherwise communicating with al-Hadi in recent weeks. Furthermore, the attorneys were asking to meet with their client in a public space, where the security of their confidential communications could not be guaranteed, a strange request given their protestations about alleged government infringement upon attorney-client privilege.

Next Steps

Before concluding, the defense alerted the judge to ongoing challenges with the security clearance process for new members of the team, and their intent to litigate the matter if not otherwise resolved soon.

And with that, Rubin put the commission in recess until Apr. 9.