Last Week at the Military Commissions: Medical Accommodations and Conspiracy Liability in al-Iraqi

The military commission trying alleged al-Qaeda commander Abd al-Hadi al-Iraqi reconvened from Jan. 7-14, after a break in proceedings beginning in November 2018. The bulk of the session focused on Hadi’s medical status and accommodations being made to enable his participation in proceedings, and the commission heard testimony from Hadi’s neurosurgeon, the camp senior medical officer (SMO), and the commander of the Joint Detention Group (JDG). The parties also took up a defense motion to dismiss one of Hadi’s charges—conspiracy to commit law of war offenses—and a defense motion to dismiss co-conspirator liability as a theory of vicarious liability for three other charges, as well as several other administrative matters.

Administrative Matters

On Jan. 7, presiding judge Lt. Col. Michael Libretto brought the session to order. Lt. Dahoud Askar and Lt. Charles Ball were sworn in for the defense.

Libretto noted that all parties present when the commission last recessed were again present, including Hadi, with the exception of defense attorneys Adam Thurschwell, Maj. Yolanda Miller and civilian defense attorney Brent Rushforth, all of whom had requested excusals. During the previous session in November 2018, Libretto reserved decision on the excusals of Thurschwell and Miller (despite having granted their absences in Appellate Exhibits (AE) 132A and 132C). On Monday, he announced the Commission would continue to withhold a determination on their excusals until the defense team provided an assessment of how their excusals would impact the litigation timeline. (Libretto ultimately granted the excusal of Thurschwell and Miller on Jan. 17.) Similarly, Libretto granted Rushforth’s absence on Monday but did not grant Rushforth’s excusal because nothing had changed since his excusal justification had been found insufficient during the November 2018 session. Libretto ordered that Rushforth either submit additional information justifying his excusal by Jan. 30 or appear for the next session, scheduled for March 4, 2019.

Libretto attributed his hesitancy to grant excusals to a concern that granting them would result in a lack of “ability to comply with previously ordered deadlines.” For example, Libretto pointed out that in AE 110C, the Commission had ordered the parties file notice to the commission and opposing counsel of the evidentiary motions they intended to file in accordance with an amended litigation schedule. The government timely filed its motions, but the commission received no notice or associated motion from the defense. On this point, defense attorney Susie Hensler noted the defense team had objected to the litigation schedule in part because the team did not have sufficient resources to determine a schedule.

Hensler also told Libretto that Hadi had found it humiliating and degrading to lie down on the provided courtroom medical bed for a nap during the November 2018 session, as the bed was in full view of the audience. Hensler asked that accommodations be made in the future to provide Hadi privacy from the public viewing audience. Libretto indicated he would consider this request if the event were to arise again.

Excusing Hadi for Classified Session

Next, the parties turned to the matter of whether Hadi should be excused from the Rule 505(h) classified hearing scheduled for Tuesday, Jan. 8. While the defense team acknowledged that former Judge Col. Peter Rubin had already decided that Hadi could be precluded from attending classified hearings, defense counsel Hensler objected to this particular 505(h) notice of hearing because the government had not provided any justification in its request that the hearing be closed to the public and to Hadi. As a result, Hensler was concerned that matters which should be properly categorized as unclassified might be discussed along with classified matters during the 505(h) session. After hearing Hensler’s arguments, Judge Libretto held that if matters of an unclassified nature were addressed during the 505(h) session and were identified as such, then the Commission could revisit those matters during the open session scheduled for Wednesday, Jan. 9, to ensure that all matters that could properly be disclosed in public are disclosed in public.

Neurosurgeon Medical Testimony on Hadi’s Medical Accommodations

Following a recess to allow Hadi to rest, the Jan. 7 session reconvened in the afternoon to hear testimony and receive evidence from Hadi’s neurosurgeon (who testified anonymously pursuant to AE 014) via video teleconferencing. The hearing was intended to determine the viability of the current medical accommodations provided for Hadi and to assess whether additional accommodations might be required to facilitate his participation in the commission in the long term.

First, the neurosurgeon testified that Hadi had been recovering from his surgery appropriately, that his medication prescriptions were not unusual for recovery, and that Hadi had gained strength in his arm muscles and lower extremities. However, the neurosurgeon found it “difficult” to make a prognosis on the extent to which Hadi might recover further, and noted that Hadi’s current state with occasional pain and muscle spasms may never improve.

The neurosurgeon then provided an opinion that reduced transit time between his primary holding cell at Camp VII and the courtroom could minimize Hadi’s risk of pain and muscle spasms, as could allowing Hadi to shift positions while in the courtroom. The neurosurgeon also recommended that Hadi be given an opportunity to lie down while being transported, but noted that this recommendation would be subjective according to Hadi’s pain on any particular day. Additionally, the neurosurgeon stated that in general, a patient’s level of activity can correlate with the pain experienced; if Hadi were to be moved every day for proceedings, versus being afforded a day of rest in between sessions, this could correlate to worsened pain. Regarding other possible treatments that might allow Hadi to remain comfortable for extended periods of time during the proceedings, the neurosurgeon recommended acupuncture, trigger point injections, a transcutaneous electrical-nerve stimulator (TENS) unit (a battery-operated device that produces a vibratory sensation to distract the nervous system from pain), and muscle stripping with a physical therapist.

On cross examination, the defense team turned to interactions between the senior medical officer and the neurosurgeon. The neurosurgeon testified that the SMO reaches out via email when the neurosurgeon is needed for a specialist consultation regarding Hadi. Defense attorney Hensler noted that the defense team had requested these emails between the neurosurgeon and the SMO from the 2018 calendar year but had not received any, and asked that Libretto order the government to disclose the emails. Libretto instructed Hensler to file a motion requesting the order so that it might be taken up accordingly during the following session.

Lastly, the neurosurgeon testified that Hadi was one of his “best patients,” that he wished all of his patients were as in-depth as Hadi, that Hadi was very in tune with his body, and that Hadi was “always honest and frank.”

Hadi’s Medical Status and Right to Appear

The commission reconvened on Jan. 9 to continue with the testimony of the SMO. Hadi refused to attend but affirmatively stated that he was not waiving his rights; similar to his refusal to attend the Sept. 24, 2018 session, he claimed that his absence on Wednesday was due to medical incapacity rather than a voluntary waiver. (In general, if a defendant’s absence is voluntary the commission may proceed in absentia. If a defendant’s absence is involuntary, the commission may not proceed.) To determine whether Hadi’s absence should be deemed voluntary or involuntary due to medical incapacity, Libretto heard testimony from the assistant staff judge advocate (SJA), who had met with Hadi earlier in the morning to determine if he would attend the session, and from the SMO, who had attempted to medically examine Hadi.

The assistant SJA first testified to speaking with Hadi for roughly 10 minutes that morning in his cell at Camp VII and reported that Hadi had said he strongly desired to be at the commission for the SMO’s testimony, but that he could not attend because he did not feel well enough. Specifically, Hadi had said he took a Valium Tuesday night and then another Wednesday morning because his pain was escalating. The assistant SJA also testified that Hadi had reported feeling worried and anxious after taking the Valium, stating that “[Hadi] was worried. He had been thinking about it all night, and…when he took the Valium, he said then it basically put him out. [H]e was anxious about the event, but his pain again was not allowing him to participate.” On cross examination, Lt. Ball confirmed with the assistant SJA that Hadi had said the Monday session “took a lot out of him” and that Hadi repeated the phrase “I want to go” several times when asked if he wanted to attend the Wednesday session.

Next, the SMO testified as to Hadi’s capacity to attend the Jan. 9 session given his medical status. The SMO had seen Hadi approximately every one to two weeks since November 2018 in an outpatient setting, including a meeting with Hadi on the morning of Tuesday, Jan. 8, during which time Hadi was “lucid and able to communicate freely.” Despite conceding that anxiety associated with the proceedings could cause increased physical pain and that long periods of immobility in the proceedings could provoke spasms, the SMO nevertheless believed that the discomfort could be mitigated with medicine and accommodations such as the courtroom bed. Additionally, the SMO spoke on Hadi’s current medical accommodations, medications, and physical therapy, and provided his opinion that the commission proceedings should not worsen Hadi’s condition or set back his postoperative recovery.

Ultimately, Judge Libretto found it was unnecessary to make a current determination on whether Hadi’s absence was voluntary or involuntary. Instead, Libretto ordered the commission to continue with testimony on Hadi’s medical accommodations in absentia, stating that “the only appropriate remedy” would be to continue in Hadi’s absence for the narrow purpose of determining what accommodations may be present and available to effectuate his attendance at future commission sessions. The defense counsel objected to moving forward with testimony in absentia, arguing that it was improper as there had been no finding of voluntariness, and asked that the commission defer additional SMO testimony until the following day, especially given the testimony of the SJA that Hadi had indicated a strong desire to attend. Libretto overruled the objection.

Senior Medical Officer Testimony

For the remainder of the Jan. 9 session, the SMO testified on the viability of current medical accommodations for Hadi and on recommendations for further accommodations that would promote greater efficiency in the commission’s proceedings.

On direct examination by the government, the SMO provided an overview of Hadi’s current medical status and offered an opinion that based on observations, treatment, and discussions with Hadi’s neurosurgeon, having Hadi present in the courtroom would be unlikely to endanger his health or exacerbate medical conditions.

Additionally, the SMO provided recommendations on other accommodations that could further mitigate the risk of exacerbation. These options included acupuncture, topical ointments and creams, trigger point injections, a specific regimen of pain medication rather than an “as needed” plan (though the SMO noted that Hadi had been resistant to this recommendation), and minimization of movement by moving Hadi’s holding location closer to the courtroom during weeks that the commission is in session. The SMO did not recommend any other accommodations for the courtroom aside from those already given, such as the medical bed. If a spasm episode were to occur during the commission proceedings, the SMO recommended having a corpsman present to administer medications as needed.

On cross examination, the SMO noted that continuity of care is important following Hadi’s surgery and that the SMO is only assigned to Guantanamo Bay for a period of nine months. The SMO also discussed how shackling could affect Hadi’s gait, and how Hadi’s social visits also have a medical purpose. Finally, the SMO testified that there had not been any acute injuries, emergent conditions, or significant developments since he started in the position in November 2018, despite Hadi’s history of muscle spasms. The SMO found Hadi’s condition to be stable and consistent with any person who has experienced similar conditions and surgeries.

On Jan. 14, the defense recalled the SMO to testify further about Hadi’s medical care. The defense asked the SMO about efforts to find a pain management specialist within the military medical corps who could be brought in to evaluate Hadi and provide recommendations on how best to manage Hadi’s condition going forward. The SMO also discussed efforts to obtain a TENS unit that Hadi could use on his own, the drug regimen administered to Hadi when he needs to move facilities for legal visits, and his recent observations and evaluations of Hadi.

Joint Detention Group Commander Testimony

On Jan. 11, the commission heard testimony from the commander of the Joint Detention Group at Guantanamo Bay, Col. Steven Yamashita. Before the government started questioning Col. Yamashita, defense attorney Hensler raised a defense objection to moving forward with the testimony on the ground that the government had not produced the written materials on which the witness’s testimony was based (referred to as Jencks materials) to the defense prior to the session. Libretto noted the objection and allowed the government to proceed. Yamashita explained his responsibilities as commander of the JDG, which include overseeing all of the detention camps on base, facilitating International Committee of the Red Cross (ICRC) visits and communications, and orchestrating detainee movements for legal and medical visits. The parties questioned Yamashita about his knowledge of Hadi’s condition and the various medical accommodations that had been made in recent months, including adding to his cell at Camp VII a modified bed, handrails, an accessible toilet, and an accessible shower, compliance with the Americans with Disabilities Act (ADA), and how the JDG would handle requests for additional modifications. Yamashita also discussed the availability of guards and trained medical personnel at the camp to respond to medical emergencies; efforts to procure a vehicle in which Hadi could be transported laying down, rather than sitting upright in a wheelchair, between Camp VII and the facility where he meets with his legal team; the logistical coordination involved in enabling meetings between Hadi and his defense team; and the planned installation of a new holding cell nearby the legal facility that Hadi could remain in overnight for the duration of each commission session, rather than going back to Camp VII each day; and constraints on Hadi’s ability to move freely within the attorney-client meeting space. Wrapping up her questioning, Hensler asked if Yamashita was aware that the overhead lights in Hadi’s cell hadn’t been working since New Year’s Day, and Yamashita said he wasn’t.

ICRC Call Scheduling

At the start of proceedings on Jan. 14, defense attorney Hensler informed Judge Libretto that a quarterly ICRC Skype call with Hadi’s family in Iraq that was scheduled for Jan. 23 was unexpectedly moved up to Jan. 13 and Hadi was only given one day’s notice. Because he is only permitted for medical reasons to be moved in a van every other day, he was put in the position of having to choose between talking to his family on Jan. 13 or appearing in court on Jan. 14. When he decided to forgo the call on Jan. 13, he was informed that that was interpreted as a waiver of his right to a call this quarter. The defense stressed that this sort of scheduling conflict had arisen before, and asked the judge to intervene to ensure that other events scheduled for Hadi by the JDG or ICRC did not conflict with commission hearings. Libretto indicated he was not sure he had the authority to provide the relief requested, but noted it for the record and asked Hensler to submit a written pleading.

Defense Request for a Neurosurgeon Mitigation Expert

Judge Libretto next heard argument on AE 121, a defense motion to compel appointment and funding of a mitigation expert in the field of neurosurgery. The defense told the judge that since filing the motion, they had identified a military neurosurgeon who is available to help prepare the capital mitigation case. The government said it did not object to appointment of a mitigation expert, as long as his role is actually confined to consulting on sentencing-related issues and he is not being brought in for the broader purpose of overseeing Hadi’s medical care. The government did note that, in its view, the defense failed to follow the proper procedure for requesting the mitigation expert, which would have been to submit a tailored proposal to the convening authority.

Defense Motion to Dismiss Standalone Conspiracy Charge

The parties next argued AE 117, a defense motion dismiss Hadi’s fifth charge, conspiracy to commit law of war offenses, for lack of jurisdiction. The defense asserted that stand-alone conspiracy is not a law of war crime under international law and therefore cannot be tried by military commission. According to the defense, Congress’s power to codify violations of the law of war comes from the Define and Punish Clause of Article I, and the relevant history and judicial precedent point towards standalone conspiracy not being a crime within the scope of Congress’s authority to define under that clause and grant to a military commission the power to enforce.

The government argued in response that the Define and Punish Clause is not the exclusive source of Congress’ authority when it comes to conferring enforcement jurisdiction on military commissions—Congress can look not only to international law but also to prior U.S. law of war experiences—and that, in any event, standalone conspiracy is a recognized crime under international law. The government also contested the defense’s interpretation of a number of higher court decisions, most significantly the en banc D.C. Circuit’s decision in Bahlul III, and claimed that a majority of the court in Bahlul III clearly rejected the arguments made by the defense, even if only a plurality joined the primary opinion for the court. According to the government, the standalone conspiracy charge provided for in the Military Commissions Act, with which Hadi is charged, is distinct from the inchoate conspiracy charge found problematic in Bahlul III and remains valid after that case. The motion to dismiss should therefore be denied.

Defense Motion to Dismiss Co-Conspirator Liability Theory

The parties also covered AE 027, a defense motion to dismiss co-conspirator liability as a theory of vicarious liability for three charges Hadi faces: attacking protected property, using treachery or perfidy, and attempted use of treachery or perfidy. Continuing with the argument it made with respect to the standalone conspiracy charge, the defense asserted that only those offenses recognized under international law are triable by a military commission, and that co-conspirator liability (also known as Pinkerton liability) is not a settled principle under international law. International legal precedents, in the defense’s view, point towards a requirement of conscious scienter to be held liable, not the lesser Pinkerton standard that permits liability for all co-conspirators when any one co-conspirator performs an overt criminal act, whether or not the other co-conspirators knew about or participated in the act.

The government responded that the co-conspirator theory of vicarious liability is valid in the military commissions because the relevant language in the Military Commissions Act parrots that of Article 77 of the UCMJ, which has been interpreted to include Pinkerton liability, and because Bahlul III confirmed the validity of the co-conspirator liability under the Military Commissions Act. The motion to dismiss the theory in Hadi’s case should accordingly be denied.

Defense Motion to Reconsider Motion to Compel Access to Counsel

Judge Libretto took up AE 102K, a defense motion for reconsideration of the court’s denial of a motion to compel the government to grant immediate access to counsel where he resides or to abate proceedings. Hadi’s attorneys argued that they should be able to meet with Hadi wherever he is, whether that is at his cell at Camp VII or the medical recovery facility if he returns there, and not just in the designated attorney-client meeting spaces. Because meeting at the attorney-client spaces requires Hadi to be transported from Camp VII and his medical condition limits how often he can be moved, under the current rules the defense team is limited in how often they are able to meet with Hadi and conduct trial preparations. The judge previously deferred to the JDG commander’s determination that the only location where privileged attorney-client communications can take place is the secured attorney-client meeting facility. The defense asked Judge Libretto to reconsider that decision and compel the government to make accommodations for Hadi to meet with his legal team at Camp VII. The government responded that there is no reason for Judge Libretto to reverse his prior decision because Hadi has been judged medically fit to travel for legal meetings and the JDG commander’s determination is still valid and owed deference.

Scheduling

At the start of the Jan. 14 hearing, Hensler informed the Libretto that she will be unable to travel after the second week of March as she is due to give birth shortly thereafter, and accordingly intended to file with the commission a written request that the March session be held starting Mar. 5 rather than the subsequent week. She also requested that the April session be cancelled as she will be unable to attend and is the most experience defense attorney on Hadi’s team. As of now, the window for the next session is March 4-15.