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September 08, 2015

Lawyers Try to Get Access to Tortured 9/11 Defendant’s Medical Records

Last week in the D.C. District Court, lawyers for Guantanamo detainee Mustafa Adam al-Hawsasi, one of the accused in the 9/11 trial, tried to convince Judge Richard J. Leon to order the government to allow an independent expert to examine Hawsawi, and to provide classified information on his medical condition and conditions of detention.

The hearing was part of Hawsawi’s habeas corpus petition challenging the legality of his detention. That legal proceeding is separate from his ongoing military commission, in which Hawsawi’s lawyers are also seeking classified information. On Thursday, defense attorney Walter Ruiz argued to the federal District Court in Washington that to have all the evidence necessary to properly challenge his detention, Hawsawi’s defense team needed this additional information on his health. For Ruiz, the two matters were “inextricably linked.”

Ruiz described Hawsawi as “a very sick man” largely as a result of his abuse by CIA interrogators, which was documented in the Senate Intelligence Committee’s Torture Report, released last year. One of the detainees subjected to the infamous “rectal rehydration,” Hawsawi suffers from tearing in his rectum, rectal prolapse, and chronic hemorrhoids, requiring him to manually reinsert his bowels whenever he uses the bathroom.

At the start of proceedings, Judge Leon seemed fairly dubious about the connection between Hawsawi’s habeas challenge and the need for his medical records, telling Ruiz, “You’re reaching for the moon and you have normal length arms.” However, the judge seemed to soften a little as Ruiz discussed two other D.C. District Court decisions in which he argued the Court granted similar orders.

Judge Leon noted that there already exists an avenue for Hawsawi’s defense team to gain access to some of the classified medical records in the context of his military commission prosecution, by signing a memorandum of understanding (MOU) with the U.S. government.

Ruiz stated that while this process “sounds reasonable … the reality [of proceedings before the military commissions] is not so reasonable.” Indeed, a particular quirk of the Guantanamo military commissions is that the prosecution determines which evidence the defense receives—something that is not the case in U.S. federal courts. Federal courts have established procedures for handling classified evidence and do so routinely, having convicted over 500 individuals on terrorism charges since 9/11, including Osama bin Laden’s son-in-law, who was sentenced to life in prison just 18 months after his capture. Either way, all of the defense attorneys representing Hawsawi have the appropriate security clearances, which means they should be able to review the materials without issue.

Ruiz told the Court that two other Guantanamo defense teams had signed the government’s MOU to obtain their clients’ medical records but subsequently became embroiled in more than two years of litigation in the military commissions over access to other records and issues concerning the accuracy of those that were provided. And these disputes are unlikely to be resolved any time soon; the 9/11 case has been mired in pre-trial hearings since May 2012. Since last February, all hearings have been canceled due to unresolved conflict of interest issues caused by the FBI’s attempt to infiltrate at least one of the five defendants’ legal teams.

In reality, Ruiz argued, the D.C. District Court was the only way for Hawsawi’s team to actually obtain all the information on his medical conditions.

Ultimately, however, Judge Leon could not get past the fact that at least some medical records would be provided if Hawsawi’s lawyers signed the government’s MOU. The judge declared he would likely dismiss the application without prejudice and rule that the request was “at best premature.” Significantly, however, he left the door open for Hawsawi’ team to pursue a further District Court action to obtain additional medical records, once the team had signed the MOU, reviewed the records provided by the prosecution and “reevaluated.”

As such, the hearing ended with a slight “watch this space” tone. Given the disastrous run of the Guantanamo military commissions, perhaps the D.C. District Court might prove to be an avenue to actually get things done.