U.S. Military Commission Hearing against Hadi al Iraqi/Nashwan al Tamir

Our group of NGO Observers at “Camp Justice” on the Guantanamo Naval Station

Yesterday I attended a hearing held in the military commission case against Hadi al-Iraqi, who was referred to by both the military judge, Marine Colonel Paul Reuben, and defense lawyer Adam Thurschwell as Mr. Al Tamir, the name the defendant claims. I and observers representing five other non-governmental organizations (NGOs) and our Guantanamo escort entered the court complex through a security tent and a walkway lined with chain-link fencing covered with black cloth to provide shade and protection. There was additional security at the entrance to Courtroom II itself, and we then received our seat assignments in the gallery. The six of us sat in the second and third rows, and Miami Herald journalist Carol Rosenberg sat in the first row. There was a retired serviceman observing, as was a woman in an area reserved for victim family members (VFMs). There is a blue curtain which can be drawn to separate VFMs from other observers, but it was not drawn today. A uniformed serviceman sat in the middle of the gallery.

The gallery has five large windows looking into the courtroom, each with a television monitor at the top. The monitors display the person speaking, whether the judge, defense or government counsel, and they and the audio work on a 40 second delay. We were informed that if classified information is mentioned, a police-type light to the left of the judge would turn on, the monitors and audio would stop, and white noise would begin. This did not occur while we were at the court today. Cameras in each corner of the gallery kept watch upon observers, who were warned that decorum would be maintained as if we were seated in the courtroom. The proceedings were also broadcast by closed circuit television to sites at Fort Meade, Maryland and Fort Devens, Massachusetts.

The Courtroom

Inside the courtroom are six tables for each the defense and prosecution teams. This was set up to accommodate the six original 9/11 Defendants. Charges against one of the six has since been dropped. A chair on the left side of each defense table is equipped with “shackle points” – a chain about a foot long secured to the floor to which Defendants may be shackled. These shackle points have not been used on Al-Tamir since he became incapacitated, but are still used on other Defendants. About nine individuals were on each side of the aisle, including an interpreter for Al-Tamir, defense and government counsel, and their staff.

Nashwan al-Tamir, now in his 50s, was transported into the courtroom in a wheelchair by servicemen and wore an upper body brace extending to just below his chin to immobilize his neck. He has undergone four surgeries in the past four months, and hearings set in October and December were postponed. According to his lawyers, Al-Tamir suffered from degenerative disk disease before he was captured in Turkey in 2006, allegedly trying to reach Iraq on orders of Osama bin Laden. He spent 170 days in secret CIA custody before being transferred to Guantanamo in 2007 and had for years complained of back pain. In 2014 he was charged with being a high-ranking member of al Qaeda Iraq and liaison with the Taliban, and is accused of being responsible for deadly attacks in Afghanistan and Pakistan in 2003 and 2004. If convicted, he faces a life sentence.

Tuesday’s hearing

This week’s hearings are to address defense motions requesting the government provide medical evidence requested in discovery, for a medical expert on Al-Tamir’s competence to participate in his own defense, for an order compelling access to the accused by his counsel, and an order to prohibit his forcible extraction from his quarters. The arguments Tuesday covered only the first two of these motions. Defense counsel Thurschwell, a Pentagon paid civilian, argued that Al-Tamir needs accommodation for his disabilities, including a hospital chair for use when consulting with his lawyers at camp 7, where he is held, a special toilet seat which reduces the pain he experiences without it, a bottle to urinate in without exacerbating his pain, and for shorter hearings with more breaks. Thurschwell argued that Al-Tamir’s pain was exacerbated by his captors’ denial of necessary medical care until last fall, when he had become incontinent and was in danger of paralysis.

The government’s arguments were presented by Lieutenant Commander B. Vaughn Spencer, who recently became a civilian. Vaughn did not have clear answers as to why Al-Tamir was not provided with the devices he had requested to accommodate his disabilities, or why the current senior medical officer (SMO) who was to testify about Al-Tamir’s condition did not appear. He expressed confusion as to whether the defense was requesting abatement, or postponement of proceedings, or accommodation so that proceedings could continue, and noted that the government had no objection to Al-Tamir’s requests for accommodation.

Thurschwell pointed out that the Defendant was present and was willing to participate to the extent he could receive accommodations that could prevent him from experiencing debilitating pain. The defense requested its own medical expert to assess Al-Tamir’s competence to participate in his own defense, considering a deposition to perpetuate the testimony of a government witness is set to take place next week, and for the court to order the Joint Task Force (JTF) in charge of Al-Tamir’s confinement to provide the requested devices. Each side presented arguments as to the applicable legal standards under the Military Commission Act of 2009 and precedent for assessing a defendant’s capacity to participate in his own defense at this pre-trial stage of proceedings, and the defense’s entitlement to an expert.

While Judge Reuben wanted to address several other issues yesterday, he granted the defense requested an end to the hearing due to Al-Tamir’s inability to relieve himself without the requested devices, while taking all other motions under advisement. As Mr. Tamir was set to undergo an MRI last night at 10 p.m., today’s hearing will not begin until 1 p.m.