Last Week at the Military Commissions: Proceedings Stymied by Defendant’s Medical Condition

The military commission trying alleged al-Qaeda commander Abd al-Hadi al-Iraqi reconvened on Sept. 24 after a break in proceedings since April. A planned session in June was cancelled after Hadi underwent emergency spinal surgery in May, his fifth such operation since September 2017. Last week’s session was likewise stymied by Hadi’s medical condition and resultant inability to participate in proceedings, forcing an adjournment until at least November.

Marine Corps Lt. Col. Michael Libretto, who replaced Col. Peter Rubin as the case’s military judge in June 2018, brought the session to order on Monday afternoon. Libretto began by recapping a series of events which occurred earlier in the day, after Hadi refused to appear at the scheduled 9:00 a.m. session despite being cleared by the Guantanamo task force senior medical officer (SMO) to participate in one four-hour session during the week. (Guantanamo defendants have the right—whether this is based in the constitution or merely statutory is debated—to attend all in-court proceedings in their case except when inconsistent with the need to protect classified national security information. They may, however, waive the right either expressly in writing or implicitly through voluntary absence. In general, if a defendant’s absence is voluntary, the commission may proceed in absentia; if, however, the defendant’s absence is involuntary, the commission may not.) Consequently, when Hadi declined to appear for the morning session, the task force staff judge advocate (SJA) requested that the SMO conduct a new medical examination of the defendant, to aid the judge’s determination of whether his absence should be deemed voluntary or involuntary due to medical incapacity.

In the afternoon session, at Libretto’s request, the government called the SMO—whose identity was kept anonymous over the defense’s objection—to testify. The SMO, who assumed the position only one week prior, spoke about his knowledge of Hadi’s medical history, his interactions with the defendant over the previous week, the basis for his decision to clear Hadi to participate in the current session, and his assessment of Hadi’s condition after speaking with him on Monday morning. The SMO stood by his earlier conclusion that it was reasonable for Hadi to participate in one session, no longer than four hours, with time to stretch and move around, once a week. He could not rule out the possibility that Hadi would suffer some pain during these periods, but he nevertheless believed the movement would not exacerbate his underlying condition. The discomfort would only be temporary and could be mitigated with medication as needed.

Defense Attorney Adam Thurschwell cross-examined the SMO, aiming to establish that, because of the SMO’s limited familiarity with Hadi, his medical history, and the sort of intensive medical care he requires, Hadi’s assessment of his own condition should be given greater weight by the judge; that there was no basis for believing that Hadi was operating in bad faith by exaggerating his physical condition; that if Hadi was in significant discomfort and reasonably expected he would make things worse by attending the proceedings, his absence should not be deemed a voluntary waiver of his right to attend; and that, even if Hadi could attend the proceedings, his pain might nevertheless render him legally incapacitated and unable to effectively participate in his own defense.

Libretto sided with the government, accepting the SMO’s conclusion that Hadi was medically fit to participate and ordering Hadi to attend the proceedings rescheduled for the next morning. The judge stipulated that Hadi should not be compelled to appear, given his medical condition, and he directed that Hadi be informed that the commission might proceed in his absence if the defendant continued to refuse to attend despite being medically cleared.

On Tuesday at 9:00 a.m., the defendant was again absent. The government called the staff judge advocate who met with Hadi that morning and advised him of his right to attend the session and Libretto’s order to appear. The SJA said he conveyed the information to Hadi, with a translator present to explain in Arabic the court’s order to appear and the risk, if he defied it, that proceedings would nevertheless continue in his absence. Hadi refused to sign the standard rights advisement that is presented to defendants before every session of the commission, and told the SJA that he was “medically unable to appear.” The government argued that Libretto should construe Hadi’s continued refusal to appear as a voluntary waiver of his right to attend and carry on with the proceedings: “[G]iven the objective medical findings in the face of [Hadi’s] subjective and, in this case, speculative concern about what might happen, that’s not sufficient justification to prevent the proceeding moving forward.”

Thurschwell countered that the weight of the evidence about Hadi’s medical condition was on his side: According to the SMO’s own testimony, the week before, Hadi had “suffered two episodes of back spasms so intense and so painful that he was literally unable to breathe for a period of time.” It was therefore not mere speculation that the disruption of moving to the trial facility and participating in proceedings could cause Hadi severe discomfort. Additionally, the defense argued, the commission was not following its own procedure for determining whether a defendant voluntarily waived his right to attend, which specifies that a defendant “may be allowed to waive his right to be present at the first session of a hearing if he submits a written waiver executed in the presence of his defense counsel.” Hadi’s attorneys were not present when the SJA spoke with him that morning and could therefore not verify that his waiver was knowing and voluntary. Furthermore, Thurschwell said, it was improper for the commission to make “physical suffering the condition of a defendant’s exercise of his constitutional and statutory rights and then claim that a decision to waive those rights is voluntary.” Hence, he requested that the commission adjourn until Hadi could physically participate, postponing proceedings until November if necessary.

The government responded that further delay was unwarranted because the commission had gone “above and beyond in this case by issuing the order that it did yesterday to further guarantee that the accused understood the implication of his voluntary choice to come or not,” and “in complying with [the SMO’s] recommendation, has done everything to accommodate the accused’s medical condition under these circumstances.” Since, “in the expert medical opinion of his caregivers, he was medically cleared to come to court,” Hadi’s

“choice not to is voluntary.”

After hearing argument from both sides, Libretto issued his findings and conclusions. Among other things, the judge concluded, “[o]ne, that the accused’s presence at trial would not substantially increase risk to his health or life; and two, that the accused’s present physical condition is not such that it may substantially impair his ability to present a proper defense.” Additionally, he found based on the evidence in the record that Hadi understood his rights and the order from the court to appear, and voluntarily chose not to attend and thereby forfeited his right to appear. Further delay of the proceedings was therefore not warranted under the circumstances. Libretto accordingly directed that the commission would be prepared to reconvene each morning for the rest of the week, until Hadi chose to attend. If Hadi continued to refuse, on Friday, September 28, the parties would come back to discuss the way ahead. The judge then adjourned for the day.

After the conclusion of proceedings on Tuesday, however, the SMO reversed course and withdrew Hadi’s clearance to participate, putting an end to the week’s proceedings. The Miami Herald reports that on Thursday, he reportedly ordered prosecutors “to provide its proposed course of action to ensure the accused’s presence at currently scheduled future sessions of this commission, taking into account the accused’s fluctuating medical conditions that restrict his ability to be transported to commission proceedings” by Oct. 12. (The order itself is still undergoing security review and has not yet been publicly released.) The next session of the commission is currently scheduled for November.