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March 15, 2019

Guantanamo Hearings Stalled by Continuing Medical Concerns

By Ingrid Schultz

Last week pre-trial hearings briefly resumed for the military commission prosecution of Abd al Hadi al-Iraqi. Pre-trial hearings have been continuously constrained by his spinal condition, which causes him chronic pain, but this time, it was the lead defense counsel’s medical emergency that brought the open hearings to an abrupt halt.

Brought to Guantanamo in 2007, Hadi has been charged with war crimes, allegedly committed as an al Qaeda leader. Due to repeated delays, Hadi’s case is still only in the pretrial stage, and his full trial is not scheduled to start until February 2020.

The delays are due, in part, to the detainee’s poor health. While at Guantanamo, he’s had five back surgeries and still suffers from chronic back pain. During the January hearings, the prosecution committed to providing Hadi a handicapped-accessible holding cell at Camp Justice by March 3rd. The cell would reduce the need for transfers to and from Camp Justice, which have been a major trigger for Hadi’s back pain. Although the trailer has been delivered to the base, the interior of the cell was not ready for this hearing. Hadi was therefore not transferred to Camp Justice until just before it began.

The session began with a brief attorney-client meeting in the courtroom. Hadi’s defense team has had difficulty meeting with their client, as he requires days to physically recover from the transfer to the meeting site. This meeting was only the third that some members of his defense team have had with him.

The effects of Hadi’s pain medication on his mental state have been a focus of his pre-trial hearings. The defense team made several requests for continuances and breaks due to Hadi’s back pain and mental state. They said Hadi was in serious pain after being constrained for 30 minutes in a van outside the courtroom. Additionally, Hadi had been given Valium, Flexeril, and Percocet. His counsel voiced concerns regarding his mental capacity to participate in his own defense while so heavily medicated.

When briefly questioned by the Judge Michael Libretto, the defendant said that he felt drowsy and that he did not believe he would be able to understand any complicated issues that may arise. However, Libretto chose to continue with the day’s hearing, encouraging Hadi to move about to reduce the risk of back pain and spasms.

Following complaints of back pain from Hadi, Libretto provided two breaks during the two-hour hearing. Prior to the second break, Hadi stated he was struggling to focus due to his pain medication. One defense attorney commented that his answers were coming slower and that he was struggling to follow the questions.

In addition to the defendant’s medical condition, the brief hearing highlighted issues that have complicated all the military commission trials, including discovery and access to evidence. As exasperated defense and prosecution attorneys repeatedly stated, arguments surrounding these issues have been ongoing since 2013, and after 5 years, the commission seems no closer to fulfilling this preliminary step toward a trial.

The hearings were cut short after only two hours when lead defense counsel, Susan Hensler, suffered from severe dehydration and had to be treated at the base hospital. Hearings will not resume until July 2019, following Hensler’s maternity leave.

Given the constraints created by Hadi’s spinal condition, complications of military commissions trials, and the other unpredictable interruptions that come with any legal proceeding, it is unclear if either side will be ready for the trial scheduled to begin in less than one year. As this process inches along without a clear end in sight, the military commissions at Guantanamo continue to fail in their mission to provide any kind of justice.