Military Commissions ‘Disrespectful To Our System Of Justice’

On Monday, the first day of the final week of hearings in the 9/11 case during the Obama presidency, more than fifteen years after the September 11 attacks, the Guantanamo military commission was focused on whether one of the five accused men had sufficiently recovered from hemorrhoid surgery to sit in the courtroom.

Mustafa al Hawsawi is a 48-year-old Saudi alleged to have helped organize and finance the September 11 attacks. He’s also known to have been held and tortured in secret CIA prisons between his capture in 2003 and his transfer to Guantanamo in 2006. Although exactly what happened to him in those “black sites” remains classified, the Senate Intelligence Committee in 2014 issued a report on CIA detention and interrogation that detailed many acts of abuse and torture committed against detainees. Some of them, including Hawsawi, were subjected to “rectal feeding” and “rectal rehydration” for no apparent medical reason. According to the report, Hawsawi was subsequently diagnosed with “chronic hemorrhoids, an anal fissure, and symptomatic rectal prolapse.”

Hawsawi’s lawyer, Walter Ruiz, a Navy Reserve officer, on Monday complained that he wasn’t allowed to see his client’s medical records dating back to his time in CIA captivity — and neither were the doctors treating him. It was therefore impossible for them to fairly evaluate his client’s claim that he’s in extreme pain now, following rectal surgery in October. In fact, the evidence of Hawsawi’s treatment in CIA custody and its impact on his current condition were deliberately kept away from medical personnel and out of the hearing. Ruiz wasn’t even allowed to have an independent medical expert evaluate Hawsawi’s most recent medical records.

Instead, beginning Monday afternoon, a doctor and “Senior Medical Officer” at the Guantanamo prison, who had refused to meet with Hawsawi’s defense team out of what he described as a “fear” for himself and his family, testified in the courtroom. The unnamed “SMO,” as he was called, testified that although he is not a colorectal expert, he believes Hawsawi is perfectly capable of sitting for 7-8 hours in court each day. He admitted he had never actually seen Hawsawi sit, except during a brief medical exam. He also admitted he hadn’t seen records of Hawsawi’s medical condition from between 2003 and 2006, when his lawyer says he was “sodomized.” Yet he testified that Hawsawi’s claim that since his surgery he suffers intense pain — a 7 or 8 on a scale of one to 10 — is “atypical.” Still, he’s been prescribing him painkillers including Oxycontin, Percocet and Tramadol, all controlled substances.

Of course, Hawsawi’s treatment in U.S. custody has hardly been “typical.” Yet it was deliberately excluded from a hearing about his medical condition and his fitness to participate effectively in his defense. When his attorney expressed frustration at Judge James Pohl’s admonition that he must make do with the evidence available, sarcastically calling it a “great system,” the judge became irate.

“You might not like this system,” Judge Pohl told Ruiz, “but it deserves respect.” Ruiz responded that the system is “disrespectful to our system of justice, and disrespectful to our flag.” Judge Pohl ordered him to sit down and be quiet, although Ruiz objected that he had not yet completed his cross-examination of the witness.

At the end of the day, Judge Pohl ruled that he’s not “minimizing” Hawsawi’s pain, but he believes he’s able to sit in a chair through full days of court. If he chooses not to come to court, he’ll have to knowingly waive his right to be present at his defense.

The commission is expected to resume Tuesday morning.