Last Week at the Military Commissions: Medical Complications and Voir Dire in Al-Iraqi

The military commission trying alleged al-Qaeda commander Abd al-Hadi al-Iraqi reconvened on Nov. 6, after Hadi’s poor medical condition impeded the previous session in September. The Nov. 6 session ended after only thirty minutes, due to Hadi suffering back spasms and needing treatment. Proceedings resumed for a half-day session on Nov. 9 and covered additional medical accommodations for Hadi, voir dire of the military judge, and the pending excusals of five members of the defense team.

The presiding military judge, Marine Corps Lt. Col. Michael Libretto, brought the session to order on Monday morning and noted that Hadi was present. Defense attorney Adam Thurschwell informed the court that Hadi had experienced back spasms earlier in the morning and was given medication to reduce the pain, but likely would not be able to stay much longer. Thurschwell accordingly asked Libretto to postpone voir dire of the judge, currently at the top of the agenda, and instead turn to two pending motions related to medical accommodations for Hadi. Libretto denied the request, reiterating that his priority was to conduct voir dire in the presence of the accused. After some back-and-forth between about Hadi’s current medical status and ability to participate in proceedings, Libretto summarized two in camera conferences held since the prior session, in which the parties discussed the decision to adjourn the previous session, how much discussion of the defendant’s condition should go on the record, and the intended schedule and topics for the November session. The court then began voir dire of Libretto, a process intended to identify any potential sources of bias or other grounds for the judge’s recusal from the case. The defense questioned the judge about his prior interactions with one of the military prosecutors, Maj. Johnathan Rudy, and one of Hadi’s previous defense attorneys, Lt. Col. Tom Jasper. The defense then paused and asked for a recess on account of Hadi suffering a spasm, which Libretto granted.

The commission did not return until the morning of Nov. 9, at which time the military judge swore in a new civilian defense counsel and had the government explain three additional medical accommodations for Hadi put in place since the last session, including providing a hospital bed in the courtroom. The parties then discussed Hadi’s medical status. The government said that Hadi’s neurosurgeon considered his condition stable and believed that not much more can be done besides providing medication to mitigate the pain and allowing Hadi to change positions and move around as needed. The defense responded that Hadi continues to suffer severe discomfort and his presence at trial should not be considered voluntary under the circumstances. Judge Libretto noted that there was no reason to debate voluntariness because Hadi was present, and moved on to the voir dire, which was interrupted during the Nov. 6 session. Thurschwell returned to the issue of Libretto’s relationships with Maj. Rudy and Lt. Col. Jasper, as well as with Brig. Gen. John Baker, the chief defense counsel for the military commissions. The defense further inquired about the judge’s knowledge of, and views on, Islam; whether he knew anyone killed on 9/11 or in combat against al-Qaeda or the Taliban; his previous experience working on cases somehow touching on Islam, al-Qaeda, or the Taliban; Libretto’s ability to ignore political pressure surrounding the case and judge fairly regardless of command or other outside influences he might face; his experience working with classified evidence; his understanding of the military commissions’ unique rules and procedures, as distinct from the military court-martial system; his prior conversations about the case with anyone outside his judicial staff; the length of his assignment as judge and his expected promotion date, and whether either would affect how he handles the case; and, ultimately, his ability to keep an open mind about the factual and legal issues in the case and give fair consideration to both parties’ arguments.

On its turn, the government asked only if there was anything that made Libretto believe he could not faithfully or impartially perform his duties, and the judge said there was not.

At the end of questioning, the defense lodged a challenge on the grounds that Libretto might not be sufficiently impartial due to his prior professional relationships with Jasper and Baker. Libretto dismissed the challenge, saying that he would be impartial and that the facts do not support a reasonable inference that he might not be.

Next, the parties turned to the issue of the excusal, or requested excusal, of six members of the defense team. The chief defense counsel of the commissions, Brig. Gen. Baker, purportedly excused Capt. Jeffrey Fischer, Cdr. Aimee Cooper, and Maj. Kenitra Fewell, but, as Libretto noted, the Court of Military Commission Review ruled that the chief defense counsel could not excuse counsel on his own authority and that the military judge had the final say. After asking Hadi if he understood the reasons for the excusal of counsel and whether he gave his knowing consent in each case, and noting his view that the defendant was not prejudiced thereby, Libretto approved the excusals. The judge also addressed the withdrawal of civilian defense attorney Brent Rushforth, who had been unable to actively participate in the case since early 2017. Baker rescinded Rushforth’s qualification as defense counsel in October, on Rushforth’s request, but Rushforth did not then notify the military judge as required by his employment agreement. In light of Rushforth’s failure to comply with the terms of his agreement and the Rules of the Court and explain to the court the basis for his requested withdrawal, Libretto ruled that Rushforth remains counsel for Hadi and must continue to represent him until such time as Rushforth fulfills the procedural requirements to withdraw and demonstrates good cause on the record. Next, the court considered requests to withdraw from Thurschwell and Maj. Yolanda Miller. Libretto asked Hadi if he consented to both requests and Hadi said he did. Nonetheless, the judge decided to reserve decision on Thurschwell and Miller for the time being, given the amount of turnover in the defense team and some uncertainty about the status of incoming counsel.

The prosecution chimed in to express concern about whether Hadi genuinely consented to the excusal of Fischer and Cooper, as his comments to Libretto suggested he believed Fischer and Cooper would have rotated out even if Hadi did not approve of their departure. If in Hadi’s mind it was already a fait accompli regardless of what he said, then his “consent” was not really meaningful. Libretto responded that he understood the government’s concern, but that Hadi had said on the record that he understood he did not have to consent and did so anyway. The judge said he did not think Hadi’s consent was problematic, but Libretto was open to discussing the matter further in a subsequent session if necessary. He then concluded proceedings for the week.

The commission is now in recess until January 2019.