War court hearing cut short when fragile prisoner can’t get a bathroom break

Guantánamo prisoner Abd al Hadi al Iraqi, who says his true name is Nashwan al Tamir, poses for the International Red Cross in a 2014 photo taken for his family, and provided by his attorneys.
Guantánamo prisoner Abd al Hadi al Iraqi, who says his true name is Nashwan al Tamir, poses for the International Red Cross in a 2014 photo taken for his family, and provided by his attorneys.

Army guards brought an Iraqi prisoner into court in a wheelchair and neck-to-waist brace for a hearing that abruptly ended Tuesday morning after troops forgot to bring to court a special toilet seat for the disabled and then denied the captive a hospital bottle to urinate in.

Abd al Hadi al Iraqi, accused of war crimes for allegedly commanding al-Qaida insurgents after the 9/11 attacks, was making his first appearance since summer following a series of emergency spinal surgeries by the U.S. military. The first was Sept. 5 after the prison discovered that the captive who had complained of chronic back pain for years was incontinent, prompting the Pentagon to scramble military medical staff to the base ahead of Hurricane Irma.

At issue Tuesday was whether the captive has recovered sufficiently to competently work with his defense lawyers. The judge canceled October and December hearings over a series of four surgeries on Hadi’s lower back and neck, which included at one point tightening screws and at another removing a blood clot.

Prosecutors noted Hadi was medically cleared by prison doctors to go to court. But in the first known instance at Guantánamo, the doctor overseeing Hadi’s healthcare refused to appear in court Tuesday morning to answer the judge’s questions on the captive’s condition.

“I am an attorney, not a doctor. I don’t know what I don’t know,” judge Marine Col. Peter Rubin declared, seeking expert testimony from the doctor in charge of healthcare at the clandestine Camp 7 prison. It is there that the military houses 15 former CIA captives, most of whom were subjected to physical and mental abuse in years of secret custody at overseas prisons. The spy agency acknowledges waterboarding three of them.

A clearly chagrined case prosecutor, Vaughn Spencer, said the doctor whose title is Senior Medical Officer ignored the court’s request to come and testify Tuesday morning because he had appointments to see his patients. Those under his care include five men accused of plotting the Sept. 11 attacks, three men suspected of roles in Southeast Asia terror attacks and the alleged mastermind of the USS Cole bombing.

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Spencer said his side “did not anticipate him ignoring my communication of your request,” and proposed that the judge order the doctor to court.

For his part, Hadi displayed no evident discomfort in the morning session. The gray bearded man in a white prison uniform and skullcap gingerly used a walker brought by prison guards to shift into a reclining rehabilitation chair. And he gestured with both hands as he sat cross-legged in the padded chair, speaking animatedly with his lawyers before court began.

His defense lawyers, however, describe him as physically fragile and prone to experiencing escalating pain after a morning of sitting. During attorney meetings last week, his lawyer Adam Thurschwell said, he was unable to participate after at most three hours.

Thurschwell objected to bringing the absent doctor to testify, in part because he had recently arrived at Guantánamo and was new to the case. A female doctor treated him last year under a military staffing scheme that regularly rotates Army majors with medical degrees through Camp 7.

In addition, the defense lawyer said, his team is seeking a court order to let them hire a medical expert to consult on Hadi’s condition. Thurschwell said the question of Hadi’s competence to take part was a decision for the judge, who needed to hear from both sides before deciding. The prosecutor disagreed, saying the judge could rule based on the opinions of prison medical staff.

The previous doctor wrote in a Dec. 28 affidavit that Hadi was healing well, “his hardware is in an appropriate position and he has been cleared to remove his brace while sitting in his chair and lying in bed.” However, she noted, Hadi’s “lumbar spine may require further stabilization surgery in the future.”

A step toward deciding that was scheduled for late Monday. Spencer announced in court that Hadi was scheduled to undergo an MRI at 10 p.m., a process that could take some time and deny him a full night of rest. So the lawyers and the judge agreed to adjourn until 1 p.m. Wednesday.

Court arguments seesawed between a discussion of the Guantánamo war court standard on what made a captive physically fit for trial and bodily functions.

About two hours into the hearing, Thurschwell said the captive needed to rest — in part because it took the guards an hour to move him from prison to court in a process that safeguarded his spine, but exhausted him.

First, however, the lawyer said the Iraqi urgently needed to urinate. With no special toilet seat at the war court compound, called Camp Justice, and guards refusing to bring him a hospital-style bottle to use, he would need to be transferred to a holding cell behind the court in a process that would require he lie on a bed and rest afterward.

Spencer said the troops were likely reluctant to provided the captive with a urination bottle because other detainees had, in the past, used water bottles to splash their urine on their guards — a form of protest that prison staff have described as weaponizing their body fluids.

The Marine judge postponed a decision on a defense request to order the guards to bring a special toilet seat for the disabled and bottle for urination to the court for each session after the prosecutor said he believed his side could find a way to accommodate the defense request.

The Iraqi, now in his 50s, allegedly led insurgents who resisted the U.S. invasion of Afghanistan with roadside bombs, ambushes and other attacks that did not distinguish combatant from civilian. He says his real name is Nashwan al Tamir. Conviction could carry a maximum life sentence.

He got to Guantánamo in April 2007, after 170 days in secret CIA custody and had for years complained of chronic back pain, according to medical records. The pain was mostly treated with Ben Gay, according to his lawyers — until medical staff feared paralysis.

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His lawyers say that even before the man charged as Hadi was captured in Turkey in 2006, allegedly trying to reach Iraq on orders of Osama bin Laden, the captive already had degenerative disc disease demonstrated by an MRI and was recommended for surgery. Tuesday night’s was to be his first MRI since his capture.

Carol Rosenberg: 305-376-3179, @carolrosenberg

About the surgeries

Court records show the captive underwent the following surgeries on the following dates:

Nov. 14, 2017: Cervical spine fused from C3-T2.

Sept. 23, 2017: Removal of a post-operative hematoma in his neck.

Sept. 18, 2017: C304/C4-5/C5-6 Anterior Disectomy and Fusion.

Sept. 5, 2017: Emergency L4-L5/L5-S1 laminectomy after incontinence ensued.