Inside Gitmo: The war court that America forgot

The man wheeled into the courtroom looks like he could be much older than 58.

His long beard, almost entirely white, extends to the middle of his chest. Hunched over in a wheelchair with a pillow across his lap, he moves slowly. With the help of a walker, he carefully lifts himself up and, surrounded by uniformed soldiers, settles into an orthopaedic chair at the far left of the defence table.

While he is not shackled during the court proceedings, a metal chain runs out of the floor beneath him.

Abd al Hadi al-Iraqi, the nom de guerre of Nashwan Abdulrazaq Abdulbaqi, was captured in Turkey by US forces in 2006, held by the CIA for more than five months, and then brought to Guantanamo Bay in 2007.

Although he has been imprisoned for 13 years, Hadi has yet to be convicted of a crime.

Accused of being a senior member of al-Qaeda with close ties to Osama bin Laden, Hadi was charged with war crimes by the Office of Military Commissions (OMC), the US-run war court trying prisoners held at the prison facility in Guantanamo Bay, Cuba.

If convicted, Hadi would face life in prison at Guantanamo Bay, a prospect prison administrators have been preparing for, as the prison camp adds handicapped upgrades for its ageing detainee population.

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Lire

The OMC, established at Guantanamo in 2006, is the first war court of its kind since WWII. Without much legal precedent, its methods have not been tested, and the result has been a court with massive bureaucratic and procedural issues.

The court has faced systemic problems, leading many - from the American Bar Association to former US President Barack Obama - to call for its dismantling.

Susan Hensler, the head of Hadi's defence team, told Middle East Eye the fact that the OMC is operating under the guidelines of separate legal systems is at the core of many of these issues - and has led to "profound structural problems".

"The military commissions represent an uneasy marriage of American federal jurisprudence and military justice principles in a deliberately fraught location," Hensler said.

The result is a system that does not fall within "international legal norms", she said.

US vs Abd al Hadi al-Iraqi

Of the 40 prisoners that remain at the facility, seven prisoners are currently going through OMC court proceedings. Five of those are being tried in a joint, death-penalty case dubbed "the 9/11 case", charged with plotting the 2001 attacks.

During a hearing in Hadi's case this month, Hensler started by informing the judge that he had been given Valium, Flexeril and Percocet before the hearing. "And he's in a great deal of pain after being restrained in the van outside of the courtroom for approximately 35 minutes," she said.

This disclaimer about Hadi's medication and mental state is how all of his pre-trial hearings have begun so far.

Hadi suffers from degenerative disc disease. The discs between his vertebrae have started to deteriorate and flatten, crunching down on nerve pathways and resulting in intense pain, even after five surgeries at the prison.

Moving him from his prison cell halfway across the 116-square-kilometre base to the courthouse only exacerbates his condition, Hensler said.

"If things become complicated, I will not be able to understand," Hadi said after the judge asked if he was aware enough to continue with the proceedings.

In line with generally accepted legal standards, the OMC requires that defendants who choose to participate in their trials be coherent and meaningful participants.

Hadi's defence team argues it is impossible for him to meet that standard, however, as he lives in a state that teeters between intense pain and a medically-induced fog.

Scott R. Anderson, a fellow at the Brookings Institution in Washington and former attorney-adviser at the US State Department, said it is up to the OMC, as the judicial body, to figure out a solution.

If not, the defence can appeal any decision the court makes, potentially forcing the already-lengthy trial to start all over again, he said.

"The defence is essentially saying, 'It's not our job to figure out how to make this system work,'" Anderson said. "They're saying, 'The governing body has passed a requirement, and we don't think these proceedings meet that requirement.'"

So far, the judge in Hadi's case has determined he does meet that requirement and has chosen to continue with the hearings while making several exceptions for Hadi's comfort.

At his most recent hearing, the judge told Hadi to adjust his position, stand up, stretch or lay down in a hospital bed set up inside the courtroom.

But questions about whether Hadi is really an active participant are dwarfed by another, more pressing concern of his defence team: Was the US government's evidence against him gathered through the use of torture?

In 2009, the US Congress passed legislation prohibiting the introduction of some evidence gathered through torture or "cruel, inhuman, or degrading treatment".

Hensey told MEE that her team has not been given "adequate proof or assurances" that the evidence against Hadi was not gathered through torture or other unapproved means. "But we will continue to litigate this issue aggressively," she said.

‘Questions left unanswered’

In addition to questions about detainees' medical and mental states, and allegations that torture-tainted evidence is being used, defence attorneys and prosecutors alike have quit mid-case over objections to the OMC's complicated legal system.

"Because this is a whole separate system … there is precedent that hasn't really been worked out before. People try to draw parallels from the civilian justice system or from the military justice system, but those parallels don't always hold," Anderson said.

Hearings have been cancelled and trials frozen for reasons ranging from objections to the discovery process, to mould and listening devices found in defence team meeting rooms, to serious accusations of corruption.

'Because this is a whole separate system … there is precedent that hasn't really been worked out before'

- Scott R Anderson, fellow at the Brookings Institution

A lack of legal precedent often means there are no clear answers to standard, procedural questions.

"You've got defence counsels saying they don't feel comfortable representing their clients after certain judicial rulings, and that in turn raises the question of whether they can even resign on their own, or do they need the judge's permission to resign. Then, what do we do when they resign and we can't go forward?" Anderson said.

"There's a lot of these questions left unanswered."

When a defence lawyer quits, the government has to bring in another lawyer with the necessary security clearance. Getting the proper clearance has taken nearly a year in some cases, even for military attorneys.

In November, one lead defence attorney, a US brigadier-general, was fined and ordered to be held at Guantanamo for 21 days because he allowed three civilian attorneys on his team to resign without first seeking permission from a judge.

He was held in contempt of court until a higher authority stepped in and ordered his release.

Meanwhile, the military attorneys placed on any particular case are cycled out every two or three years due to the nature of military postings. 

Last year, Pentagon official Harvey Rishikof was abruptly fired from his role as the head of the OMC less than a year after he was appointed.

At the time of his sacking, Rishikof had been in talks over a plea deal to end the 9/11 case, negotiating with the detainees' defence team about getting guilty pleas in exchange for sentences of life in prison.

The defence team claimed that the decision to get rid of Rishikof had been an "unlawful" example of higher-ups exerting influence on the court to keep the death penalty on the table.

'The murky fringes' of government

Marny Requa, the director of Georgian Court University's graduate criminal justice and human rights programme, said the war court has continuously proven to be "thoroughly ineffective".

Requa, who has acted as an observer at Guantanamo on behalf of the New York City Bar Association, said the US would be better off moving the cases to federal courts instead.

"The small number of cases that have been initiated and the smaller number that have concluded are evidence of that ineffectiveness," Requa told MEE. "Particularly when one considers all the counter-terrorism cases that have been processed through US federal courts."

The cases cannot be tried in the US, however, since Congress, during the Obama administration, passed legislation barring the transfer of Guantanamo detainees to US soil.

According to Anderson, the former US State Department official, Congress remains "adamantly opposed to moving the trials of these people to [US federal] courts".

"There's some question to how constitutional that is, but right now, until someone chooses to challenge Congress's authority on that, no one is allowed to bring these guys to the United States for trial," he said.

The future of the OMC also remains a political issue, said Requa. 

She said she doesn't think US President Donald Trump would risk the optics of looking "soft on terrorism" by shutting down the court, even though he highlighted its inefficiencies in 2017, after a man drove a truck down a crowded bike path in Manhattan, killing eight people.

At that time, Trump said he would love to send the driver to Guantanamo, but said that "statistically that process takes much longer than going through the federal system". 

In the meantime, the trials at Guantanamo appear to have fallen off the US public's radar.

"People have largely forgotten about the military commissions," Anderson said.

That's "by design", added Hensley, Hadi's lead defence lawyer.

"These prosecutions were conceived in the murky fringes of legitimate government conduct," she said. "The fact that they remain there is a result of a government policy to keep them in obscurity."