The judge in the case against an Iraqi man accused of war crimes in Afghanistan scrapped on Friday a five-day effort to hold a hearing after a prison doctor repeatedly declared the prisoner recovering from five spine surgeries in eight months unfit to leave his rehabilitation cell.
Abd al Hadi al Iraqi, 57, declined to come to court on Monday and Tuesday, at one point telling a prison lawyer that he was unwell and unwilling to sign a waiver for the judge to hold a hearing without him, according to court testimony. The Iraqi has been confined to a rehabilitation cell for months, recovering from his fifth spine surgery, which was conducted in May.
It was to be Marine judge Lt. Col. Michael D. Libretto’s first hearing at a military commission and at one point Tuesday Libretto declared Hadi fit to come to court, at no further medical risk if he did and voluntarily absent if he did not show up. Within hours the prison sent word that its Army major physician had withdrawn his permission for Hadi to leave his cell for a half-day hearing. Hadi had a new troubling episode in his rehabilitation cell.
Thursday afternoon, Libretto ordered prosecutors by Oct. 12 “to provide its proposed course of action to ensure the accused’s presence at currently scheduled future sessions of this commission, taking into account the accused’s fluctuating medical conditions that restrict his ability to be transported to commission proceedings.”
The Iraqi, who came into U.S. custody with lower back disc degeneration, suffered back spasms on four days last week, two impairing his breathing, episodes that prompted his defense attorneys to urge Libretto to scrap this week’s hearing aboard a round-trip charter air shuttle that costs up to $180,000. Prosecutors offered no opinion on whether Libretto should cancel this session. Libretto’s predecessor twice canceled hearings since the May surgery. Another week-long session is scheduled for November.
Hadi, who goes by the name Nashwan al Tamir, was charged in June 2014 with war crimes punishable by life in prison as the alleged commander of insurgents in 2002-2004 wartime Afghanistan who targeted U.S. and allied troops as well as civilians. His lawyers have said while his lower back problems predate his capture, but worsened to the point of incontinence at Guantánamo, requiring emergency military neurosurgery.
War court defendants have a right to attend their own hearings, Hadi attorney Adam Thurschwell told Libretto in court Tuesday. Holding a hearing in Hadi’s absence, he said, “gives the appearance of lawlessness.” Prosecutors disagreed that Hadi has an absolute right to attend all portions of the proceedings against him.
Hadi has come to court between surgeries, using a wheelchair as well as a walker. Thurschwell said, based on his medical record and letters from Hadi that had emerged from the prison, the Iraqi wasn’t faking his pain and a plan to go forward in his absence would violate a war court defendant’s rights.
“To be blunt, Judge, that damage is done now,” Thurschwell said. “I mean, he has been given an unconstitutional choice. That is a violation that is now in the appellate record.”