Last Week at the Military Commissions, Jan. 30–Feb. 4: New Proceedings in al-Iraqi (Part 1 of 2)

The military commission trying alleged al-Qaeda commander Abd al-Hadi al-Iraqi reconvened from Jan. 30 to Feb. 6, after a break in proceedings since July due to al-Hadi’s serious medical issues. This is the first of two posts summarizing these proceedings, covering Jan. 30 to Feb. 4. During this period, the commission discussed several defense motions related to the defendant’s medical condition, including access to a medical doctor who would act as an expert witness for the defense, a possible abatement in trial proceedings, and motions surrounding the government’s chief witness against al-Hadi. Below is a summary of the proceedings.

Procedural Matters

Military judge Colonel Peter Rubin called the commission to order Jan. 30. All members of the prosecution team returned from last summer, but with assistant trial counsel Vaughn Spencer now acting in a civilian rather than military capacity.

All members of the defense team except Navy Lt. Cmdr. Keith Lofland were present for the duration of the session. Lofland requested to withdraw as counsel due to the expiration of his orders this year and his retirement in 2019. His withdrawal request noted that the timing would allow a replacement to be identified in a manner providing continuity for the defendant. Rubin asked al-Hadi if he consented to Lofland’s excusal and al-Hadi replied in the affirmative. The commission found that good cause existed to excuse Lofland.

Al-Hadi waived the presence of Brent Rushforth, his current lead counsel for all hearings in 2018. Both Rushforth’s request for excusal and the defendant’s waiver were filed as Appellate Exhibit 007S. The commission found that the defendant remained adequately represented per Rule for Military Commissions (R.M.C.) 805(c).

Rule 802 Hearings

The commission summarized several R.M.C. 802 conferences that occurred between the formal sessions, out of the presence of al-Hadi. On Jan. 9 and Jan. 10, Rubin held a Military Commission Rule of Evidence 505(h) hearing to discuss admission of classified information and the order of appellate exhibits. On Jan. 28, the parties met to discuss the pending attorney changes and the proposed order of defense motions. Rubin said he would follow the Amended Docketing Order, AE 107C, and the defense informed the judge they planned to request accommodations for al-Hadi on account of his current medical condition. The defense also requested that the commission observe the defendant’s entrance into the courtroom at the next session. During a R.M.C. 802 conference Jan. 29, the commission determined the order of 14 motions to be addressed during the current session.

Request for Senior Medical Officer Testimony

During the Jan. 29 conference, the commission directed the government to produce the base senior medical officer (SMO) to testify about al-Hadi’s condition. The SMO did not appear Jan. 30 as requested, and Spencer asked the commission to order the SMO’s presence. Defense attorney Adam Thurschwell wanted to put on the record some of the accommodations made for the defendant and additionally to object to the potential testimony of the SMO. The judge expressed concern about operating in “a vacuum of information” regarding al-Hadi’s condition and said he wanted to hear the SMO’s opinion on whether the defendant is healthy enough to attend and participate in the proceedings. Thurschwell raised the issue of the AE 099 filings, which discuss al-Hadi’s medical status and the legal standard for determining his physical competence to stand trial, and requested that the commission move forward with litigating these issues.

Defense Motions Related to Defendant’s Medical Status

Rubin decided to proceed with consolidated argument on several defense motions related to the medical status of the defendant and the government’s accommodation of his health during the pre-trial process.

The first motion discussed was AE 099, filed in Sept. 2017, as supplemented by AE 099 (Sup), which informed the commission that al-Hadi had a medical condition requiring emergency attention and requested an abatement of proceedings until the defendant was physically competent to stand trial. The government agreed that a continuance might be necessary, but objected to the proposed abatement. Defense motion AE 103 asked that the commission order the military commissions convening authority to appoint and fund Dr. James Cobey to provide expert testimony on orthopedic medicine and spinal surgery. The government opposed the motion on the grounds that compelled employment of an outside medical consultant was unnecessary because the government was already providing al-Hadi “round-the-clock expert medical care and supervision.” In AE 098, the defense sought to compel the government to provide al-Hadi’s medical records as part of pre-trial discovery. In Oct. 2017, the commission ordered the government to identify the relevant medical records. The government responded that it had previously produced medical records to the defense and would continue to do so within 30 to 45 days of receiving them.

Counsel for the defense also discussed the accommodations that had been made for the defendant so that he could attend the proceedings. Thurschwell noted that the government provided a standard hospital-style orthopedic chair and a brace that extends from mid-thorax to under the chin and is designed to support the defendant’s neck. The government had also provided a special toilet for al-Hadi, but it was broken and did not alleviate the defendant’s discomfort, causing him to skip meals to avoid having to use it. Thurschwell also reiterated his objection to the physical security searches of al-Hadi, which the guard force continued despite a defense request to alter the search method.

After describing these accommodations, Thurschwell asked for permission to proceed to argument on AE 099. He declared that “an defendant is not physically competent to stand trial either if his presence at trial would substantially increase the risks to his health or life … or if his present physical condition is such that it may substantially impair his ability to present a proper defense.” Thurschwell argued the question of whether the defendant meets the standards is a judicial factual finding as opposed to a medical finding, and said the defense would normally have access to medical records and an expert so the court could hold an adversarial hearing on the matter. The defense therefore objected to the commission relying on the testimony of the SMO to make a determination of the defendant’s ability to stand trial. The defense elaborated on al-Hadi’s poor physical condition to provide context for why they had filed a motion to abate in Sept. 2017. The defendant has had four operations in the intervening months and continues to struggle with his health. In light of this, the defense modified its request for relief, seeking to proceed in a manner that does not impair the physical health of the defendant in lieu of a full abatement of the proceedings.

Spencer, counsel for the government, disagreed with the defense’s characterization of the law surrounding motions for abatement. He then moved on to AE 098, which was not docketed, noting that the defendant’s medical records were undergoing equity review; when this process was complete, the defense would have access to medical records from Dec. 5, 2017 to Jan. 14, 2018. The government would not object to reasonable accommodations prescribed by the commission, such as half-day hearings or rescheduling hearings around the defendant’s medical appointments, but was opposed to an adversarial hearing regarding al-Hadi’s medical condition. Spencer argued an adversarial hearing was not required and that the defendant was capable enough to be present for pretrial hearings with accommodations. Spencer referenced Rule for Courts-Martial 701 and Article 46 of the Uniform Code of Military Justice, which guarantee that the defense and prosecution teams are on equal footing with regard to obtaining witnesses and evidence, and noted that the defense was entitled only to the opportunity to obtain witnesses and evidence.

After the government noted its objections to the defense’s motions, the commission took a recess so that the defense could confer with its client. When Rubin called the session back to order, Thurschwell informed the commission that al-Hadi was fading and that the government had failed to accommodate his request for a hospital plastic bottle. Thurschwell requested an abatement until proceedings could continue on terms that allowed the defendant to fully participate in his defense. He asserted that the government had insufficiently accommodated the defendant’s physical needs and that the defendant was entitled to an expert witness.

Defense Motion to Compel Discovery

The commission began the Jan. 31 proceedings by discussing AE 099CC, a defense motion to compel discovery. Thurschwell renewed the defense’s motion to abate the proceedings entirely until the Guantanamo Joint Task Force could accommodate the defendant’s needs. He took particular issue with the use of tight handcuffs and the guards’ seizure of privileged papers when they searched the defendant the day before. The defense argued the conditions of al-Hadi’s confinement exacerbated his medical problems and prevented him from being able to fully engage with counsel.

The prosecution called the military staff judge advocate (SJA) who was on duty on Jan. 30 to refute the defense’s characterizations of the events that led to the defendant’s discomfort. The SJA said he was not a law enforcement officer and could not comment on the guards’ handcuffing procedure. He noted that the defendant was given the opportunity to use the restroom in his cell before going back to the camp and that an argument ensued, after which point the defendant soiled himself. The SJA also discussed government policy regarding legal papers, which must go through the legal mail process before they are sent to the camp.

On cross-examination, the SJA testified that he was unaware of the failure to provide a toilet seat that the defendant could use without pain and did not know of any change in standard operating procedures for the handling of defense documents by the defendant. Thurschwell commented that the SJA lacked sufficient knowledge about many of the issues raised to support the prosecution’s characterization of defendant’s claims of his improper treatment as false.

The government responded that it had in fact made sufficient accommodations and any issues with the seizure of paperwork were not germane to the issue at hand, namely whether an abatement was necessary. Spencer said the defense team was just trying to delay proceedings. Thurschwell countered that the government had the burden of proving the defendant was medically fit for trial, and that without a medical expert or access to the defendant’s recent medical files, the defense had no choice but to take their client as his word.

The commission dismissed the defense’s assertion of deliberate indifference to the medical needs of the defendant as being without merit and decided no abatement was warranted.

Defense Request to Compel Production of Discovery Related to Ahmed al-Darbi

Air Force Maj. Yolanda Miller spoke for the defense on AE 070XXX, a motion to compel certain discovery. She discussed the difference between a Human Intelligence Collection Requirement (HCR), a Source Directed Requirement (SDR) and an intelligence evaluation, and said the defense requested access to the SDRs and HCRs related to al-Darbi, the government’s primary witness against al-Hadi, in order to determine the extent to which the government had interrogated him about al-Hadi. The request specifically asked for objective information about whether or not al-Darbi was truthful under interrogation, which the defense could use during its cross-examination of the witness.

The government, represented by Marine Capt. Eric Depue, responded that the types of documents requested were not discoverable. Under certain circumstances, such as those covered by M.C.R.E. 513 and R.M.C. 914, they can be discoverable, but the defense’s request fell under R.M.C. 701—opinion testimony by lay witnesses—and could be blocked by prosecutorial discretion. Depue argued that the prosecution’s “determination is final unless and until the defense requests a specific item directly from the court and argues in favor of its materiality,” and that the defense had not met its burden of materiality. The government noted that none of the documents requested contained objective facts and that the government had provided responsive information through other means of discovery.

The defense disagreed and requested that the commission review the documents to independently determine whether they contained discoverable information.

Defense Motion to Compel Release of Psychiatric Records Related to al-Darbi

In AE 096, the defense moved to compel production of discovery related to al-Darbi’s mental health, which both the government and counsel for al-Darbi opposed. Counsel for al-Darbi, Navy Lt. Cmdr. Greg Young, argued that disclosure of privileged records is different from discovery, and that psychiatric records concerning al-Darbi’s mental state were privileged and, as such, not available for discovery under M.C.R.E. 513. The commission acknowledged that further discussion of the matter was needed but acquiesced to defense attorney Thurschwell’s request to conclude hearings for the day in order to accommodate the defendant.

The commission re-examined the issue during the Feb. 4 session. Young reiterated that the defense had conceded the documents were privileged in order to ensure the commission placed the burden of justifying disclosure on the defense. The defense asked whether a walled-off attorney—that is, a neutral party—determined that the information in the medical records was privileged. Miller said that in camera review by the commission was warranted, at the very least, and refuted the assertion by al-Darbi’s counsel that the defense conceded the documents were privileged. The defense also noted that, without the evaluations, it would be impossible to determine the impact of torture on the detainee.

Young made a brief statement describing the changes in the defense’s arguments surrounding the motion, but Rubin concluded proceedings for the day before the matter was fully litigated.

Medical Testimony on al-Hadi’s Current Medical Condition

The government called the neurosurgeon who operated on al-Hadi four times in Sept. 2017 as a witness, in order to provide additional information on the defendant’s medical condition. The neurosurgeon said he had reviewed the results of an MRI al-Hadi received on Jan. 30, and it suggested surgery was necessary but that a physical examination of the defendant indicated surgery was unlikely to improve his symptoms. The doctor also noted that al-Hadi’s current housing and transportation conditions were unlikely to worsen his physical state.

The defense cross-examined the witness, focusing specifically on whether the defendant’s pain was so great that he could not adequately participate in his own defense. The neurosurgeon admitted he would likely recommend that a patient experiencing the type of pain the defendant claimed to feel cease all activity until the discomfort subsided. The neurosurgeon described his examination of the defendant and why it led him to believe the defendant would not require further surgery, and said the defendant was nevertheless scheduled to receive further testing to confirm the diagnosis.

Defense Motion to Compel Appointment of Expert

The defense filed AE 090 asking the commission to compel appointment and funding of an expert witness to testify regarding the likely veracity of al-Darbi’s accusations against the defendant. Professor Richard Leo, the sought expert witness, would provide background information on the effect of the interrogation techniques used on al-Darbi on the trustworthiness of the statements obtained. The defense described the dispute with the government over the expert consultancy requests as a question of whether the federal “reasonable attorney” test or the Gunkle-Breshnahan test applied. Thurschwell argued that the current situation satisfied either test.

The government responded that it was not unusual for there to be a question of the validity of allegedly coerced testimony or testimony received from a party in return for leniency. The prosecution conceded that allegations of mistreatment of al-Darbi existed but argued the issues could be fully addressed through cross-examination, making expert witness testimony unnecessary.