Blog
Published on January 17, 2019
By Claire Gianotti
The new year began at Guantanamo with pre-trial hearings in the military’s prosecution of Abd al Hadi al-Iraqi. The proceedings focused on whether Hadi was physically competent to stand trial and on identifying measures the military commission could take to facilitate his meaningful participation in the hearings.
Hadi has been detained at Gitmo for twelve years. Five years ago, the government charged him with war crimes, allegedly committed while an al Qaeda leader. But the military commission is a long way away from addressing the charges against him. The proceedings inch along, stymied by an ever-revolving defense bench and endless debates over the bounds of classified information.
Hadi’s case is further constrained by the defendant’s spinal conditions, which cause chronic pain and extremely limited mobility. He has had five spinal surgeries and experienced a medical emergency in the courtroom.
The fact-finding task this week: whether Hadi could physically stand trial. His defense team heard testimony from his neurosurgeon, Gitmo’s senior medical officer, and a servicemember who interacts with Hadi on a daily basis. While some with this condition have a chance of a full recovery, Hadi is severely debilitated. The doctors detailed their losing fight against his degenerative spinal disease. The commission also heard arguments about Hadi’s mental capacity to make decisions while heavily medicated on prescription opioids and benzodiazepines.
The defense suggested the prison schedules intrusive medical appointments during times Hadi should be resting in order to enable his attendance in court. Most recently, he missed a quarter-annual phone call with family in Iraq because the detention center scheduled the call a day before a hearing. Lead defense counsel Susan Hensler called the forced choice between attending a hearing and speaking with his family “cruel and unusual.”
When a defendant is not present for proceedings, the judge must determine whether his absence is voluntary. When Hadi missed one of his four hearing days, he vigorously maintained that he was physically unable to attend—not that he had waived his right to do so. Last year, defense counsel requested the commission prohibit guards from forcibly removing Hadi from his cell, as such treatment would exacerbate Hadi’s underlying medical condition.
In an unprecedented move, the commission committed to bringing in a handicapped-accessible holding cell to accommodate Hadi during his proceedings. The time it takes to transport Hadi, his attorneys pointed out, as well as the physical trauma of being transported in shackles, would cut into the time Hadi can comfortably sit in the courtroom.
On this session’s final day of proceedings, lawyers finally addressed a motion—filed in 2014 by a different team of attorneys—challenging the military commission’s jurisdiction to try Hadi for the charge of conspiracy. The commission stopped abruptly, however, after only two hours because Hadi was experiencing spasms impairing his breathing. He had left his cell four and a half hours earlier, and his body had reached its limit.
Hadi’s health is instrumental to his fair trial. His feeble body betrays him, leaving him unable to meaningfully answer the allegations against him. Despite the good faith efforts of the commission, the Guantanamo system struggles to accommodate these detainees and acknowledge the sordid, secret past they endured. Americans are left without justice, without an end in sight.
