In a first, when lawyers and the judge in an al-Qaida war crimes case meet Tuesday and Wednesday to discuss secret evidence, they’ll convene not at Guantánamo but in a conference room near the Pentagon.
Judge Marine Col. Peter Rubin has scheduled a closed national security session, called a 505H hearing, in the case against alleged al-Qaida commander Abd al Hadi al Iraqi at military commissions headquarters in Alexandria, Virginia. Neither the captive nor the public will be allowed to watch it.
Hadi is accused of leading al-Qaida and Taliban forces who allegedly set roadside charges and carried out suicide attacks and ambushes that killed American troops and CIA contractors and targeted other U.S.-allied troops and civilians after the United States invaded Afghanistan in 2001.
Attorney Adam Thurschwell, who defends the Iraqi man who goes by Nashwan al Tamir, said the hearing is “very narrow,” and could last two days discussing potential evidence to be used in a possible coming cross-examination of a Saudi captive who testified against the Iraqi in August.
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It is a first because, for years, the judges have held the secret sessions on the fringes of public hearings at Guantánamo’s Camp Justice— typically at day’s end before reconvening in open session the next day.
The accused is not entitled to attend these secret sessions. So, some lawyers say they can be held in any place where classified information can be discussed, such as a Sensitive Compartmented Information Facility (SCIF).
Hadi is recuperating from a series of emergency spinal surgeries — and may require another — leaving an open question of whether he’ll be able to attend the next scheduled public hearing, a two-week session set to start at Guantánamo Jan. 29.
Hadi’s lawyers say the captive can barely walk and is suffering excruciating pain.
On Nov. 29, a prison doctor wrote that it “is not medically advised at this time” for U.S. troops to use the prison’s tackle and shackle technique, called a forced cell extraction, “absent extraordinary circumstances.” Now Hadi’s lawyers want the judge to fund an orthopedic surgeon as a case consultant to offer an opinion on whether Hadi is medically fit to stand trial.
The surgeon is James Cobey, described as a former Army doctor with 30 years of spinal surgery experience and a share in the 1997 Nobel Peace Prize for his role in the International Campaign to Ban Land Mines.
The chief judge at the war court, Army Col. James L. Pohl, has similarly expressed interest in holding some classified hearings in the Washington, D.C., area in the Sept. 11 case. That has yet to happen however, because although the conference room at war court headquarters is a SCIF, it is not approved at a high enough level to handle certain Top Secret information — something that apparently does not apply to the Hadi case.
One distinction may be that, while the Iraqi was held in a CIA Black Site for a time, a Senate study of the CIA program said he was not subjected to the spy agency’s enhanced interrogation techniques, suggesting his case has a lower level of classification.
In fact, the report said Hadi was rendered to the spy agency in November 2006, two months after the alleged 9/11 plotters were already at Guantánamo. In the previous four years, the CIA had moved their war-on-terror captives through its secret prison network, called the Black Sites, denying them attorneys and Red Cross visits, and subjecting them to rectal abuse and waterboarding, to beatings, sleep deprivation and dietary manipulation.
Hadi’s lawyers have attributed the captive’s disability to degenerative disc disease coupled with “a history of deliberate and callous indifference” to his health, a rebuke of the prison’s claim that it provides top-notch care.
Hadi’s surgeries have repeatedly forced postponement of the pretrial hearings in his non-capital case.
The Pentagon acknowledged the first of his emergency back surgeries, on Sept. 5 — describing it as a heroic effort mounted by a special medical team flown to the remote base ahead of Hurricane Irma. Court filings reflect three more surgeries, at least one of them also on an emergency basis, on Sept. 18, Sept. 23 and Nov. 18.
Thurschwell said medical reports suggest another will soon be required. For each, the Pentagon has airlifted a special medical team — in one instance with a special hospital bed — because Guantánamo’s small community hospital only provides routine care to the more than 5,000 people who live on the base in southeast Cuba.
The military commissions spokeswoman, Navy Cmdr. Sarah Higgins, confirmed that the Hadi hearing will be the first pretrial hearing by a military commissions judge outside of Guantánamo. She noted, however, that in another case a war court judge held a post-conviction session at Fort Belvoir, Virginia.
In that case, an appeals court asked a war court judge to consider a narrow question in the case of an already released captive, Ibrahim al Qosi, who pleaded guilty to war crimes and now has Pentagon defense attorneys seeking to overturn that conviction.
An earlier version of this story incorrectly stated when lawyers and the judge in an al-Qaida war crimes case meet.