Case Coverage: 9/11 Case

This Week at the Military Commissions, 12/5 Session: It All Comes Down to the Hemorrhoids

By Quinta Jurecic
Thursday, December 8, 2016, 11:21 AM

One month later, we’re back at Guantanamo for another week of pre-trial hearings in the 9/11 case. Fidel Castro may have left this vale of tears, but military judge Army Colonel James Pohl is still at it.

The judge begins with a run-through of who’s present. All five accused are there, including Mustafa al Hawsawi, who will be the star of today’s proceeding. When Judge Pohl asks the accused if they understand their rights, Walid bin Attash wants to make some objections: he doesn’t have any sense of what’s going on in the case, he says, because “I don’t have a defense attorney … I do not cooperate with the attorneys at all.” He goes on, “They are facilitating my execution, not defending me.”

Judge Pohl is unmoved and reiterates his previous ruling that bin Attash doesn’t get to fire his counsel. Instead, he wants to move on to the defense’s motion for continuance based on Hawsawi’s inability to “physically … cooperate in his defense.” Hawsawi, who was sodomized during his torture at a CIA black site in the early years of his captivity, is still healing from a surgery performed in mid-October, and the defense wants to argue that his condition is prohibitively poor.

Defense counsel Walter Ruiz steps in. Hawsawi has been cooperative, he says, but his health remains a problem, especially because the defense is working with so little information. In fact, now, in the courtroom, is the first time that the defense has seen Hawsawi since before the surgery. Ruiz asks Judge Pohl to allow the defense further time with Hawsawi, to “compel the [military] doctors to speak with us” in interviews preceding their testimony, and to clarify the restrictions of a previous protective order that has prevented defense counsel from sharing general discovery with pro bono medical experts.

“Here is the conundrum,” says the judge. “I can't accept a voluntary waiver of presence from somebody who says I am in too much pain to come.” If Hawsawi’s health is too poor for him to attend the hearings, in other words, then his waiver of attendance isn’t voluntary.

Army Colonel Robert Swann chimes in for the government. Despite the defense’s complaint that they’ve been denied Hawsawi’s medical reports, he says, the government has been providing such reports to defense counsel on a rolling basis: it’s not that the government has been holding records from the defense, it’s that those records have to go through a process before they can be distributed. And as for the unwillingness of medical officials to speak to the defense, perhaps the Senior Medical Official and his cohort are wary because of “the attacks that are constantly made on the … folks that provide treatment to these individuals.”

Judge Pohl clarifies that all he wants to know is Swann’s opinion as to whether or not he can compel a witness to sit for a pretrial interview, as the defense requests. Swann says no, though the judge can certain compel them to show up in court. Then he gets down to business: “Your question to us: Does Mr. Hawsawi's health and pain level from the date of surgery to the date of these hearings, 51 days, justify a continuance of these hearings? And the answer is no.”

Ruiz argues that Swann is mischaracterizing the process of turning over medical records. Not only have defense counsel not been getting the records as they’ve been produced, but they’ve been receiving some records with key information blacked out, including dates and names. Hawsawi “shouldn’t have to be held hostage” to this health problem, he says.

Swan responds, “The issue is can he sit in that seat and pay attention to what's going on, assuming that he wants to be in that seat the rest of this week. That's all we are talking about. “

After breaking for a four-hour recess to allow Ruiz to meet with Hawsawi, the court reconvenes to confusion as to Hawsawi’s whereabouts. It appears that Ruiz misunderstood Judge Pohl’s instructions and allowed Hawsawi to stay in his holding cell after the recess. He now wants a ten-minute recess to allow Hawsawi back into the courtroom, but Judge Pohl tells him that he’ll have to hold off until the court breaks again in thirty minutes.

Ruiz begins distributing a number of exhibits related to Hawsawi’s medical condition, including a “pain chart” from his medical records and a copy of his written testimony regarding his health, as “Mr. al Hawsawi is in no physical condition to take the stand under these circumstances.” Swann bristles at this, telling the judge, “You can't just simply accept the accused's statement about how he feels.” Judge Pohl is willing to cut Ruiz slack, but warns him that reliance on written rather than spoken testimony is “indirect” and will “carry less weight” in the case.

With that, the court brings the Special Medical Officer (SMO) to the stand to testify. Under examination by Ruiz, the anonymous SMO acknowledges that he reviewed the medical records for all detainees when he arrived at Guantanamo but did not see any of Hawsawi’s records from 2003-2006, when he was detained at a CIA black site.

The SMO then runs through the meetings and consultations he and other medical officials held with Hawsawi about the surgery, which has a recovery period of approximately 30 to 60 days. (Hawsawi is now 51 days out from the operation.) Helpfully, he clarifies that he is not a “colorectal specialist,” but goes into great detail as to the specific procedure Hawsawi received to repair his rectal injury.

And with that, the court heads to recess once more. When it returns, Hawsawi still isn’t there.

MJ [COL POHL]: Mr. Ruiz, did you have permission for Mr. Hawsawi to leave?

LDC [MR. RUIZ]: No, Judge. I'm sorry.  

There’s audio and video in Hawsawi’s cell, and the court will send along a translator to help him follow along. You get a one-time pass for this, says Judge Pohl.

Now it’s Swann’s turn to examine the SMO. He clarifies that the surgery Hawsawi received isn’t in fact a “colorectal surgery” or “surgery for a rectal prolapse,” but rather “surgery for third-degree prolapsed internal hemorrhoids”—a crucial distinction. Under questioning, the SMO also tells us that Hawsawi’s surgery was “elective” and that he had previously refused the operation because the surgeon would have been female.

Swann asks the SMO to describe one of Hawsawi’s several follow-up meetings with the surgeon.

He was very pleasant. In fact, when we were talking about the caliber and the consistency of his stool, we had the interpreter there trying to explain what we were trying to ask him, and I jokingly mentioned is your stool like hummus? And he thought it was very funny and we both laughed.

The SMO says that Hawsawi’s health should in no way prevent him from sitting in the courtroom for the remainder of the week. Notably, when asked by Swann why he chose not to meet with the defense before his testimony, he responds, “Concern for the safety of my family and friends.”

With that, it’s back to Ruiz, who grills the SMO as to whether Hawsawi was “suffering,” as the SMO first indicated, or just “uncomfortable,” and pushes him to define the precise difference between surgery that is medically necessary versus elective. His point seems to be that though Hawsawi’s surgery might be technically defined as elective, that doesn’t mean his client wasn’t suffering severely. “It is fair to say, isn't it, Doctor, that your average individual hasn't been sodomized rectally?  

Swann objects to this on the grounds of relevance. Ruiz says that it’s perfectly relevant: “I am challenging the degree of the injury as being the simple hemorrhoids that's an elective surgery that takes 12 minutes for the average individual. This man was sodomized. He is not the average individual.” But Judge Pohl insists that the only thing at issue is Hawsawi’s current medical condition, not “what happened ten years ago” when Hawsawi was tortured.

In response, Ruiz snaps that he has to question the SMO about these issues because he hasn’t been able to share key information with pro bono medical experts. And thus begins a rapid back-and-forth:

LDC [MR. RUIZ]: Great system, Judge. Great system.

MJ [COL POHL]: Mr. Ruiz, watch those kind of comments. You may not like this system, but you won't disrespect this commission on the record like that. Do you understand me?

LDC [MR. RUIZ]: Judge, I think this whole commission is disrespectful. MJ [COL POHL]: I am not asking for your editorial opinion.

LDC [MR. RUIZ]: It is disrespectful to our flag, and it's disrespectful to our system of justice. M

J [COL POHL]: Stop.

LDC [MR. RUIZ]: I think it is

MJ [COL POHL]: Stop. Sit down. You are done.

LDC [MR. RUIZ]: I am not done with my cross yet, Judge.

MJ [COL POHL]: You are done for now. Sit down.

LDC [MR. RUIZ]: I like the way this works.

After a long time-out, during which the Court hears further testimony from the SMO on Hawsawi’s medication, Ruiz takes the stand again. He believes that the government is trying to convince Judge Pohl that Hawsawi is seeking to delay the proceedings by lying about his medical condition, but in his view, this couldn’t be more wrong: the defense’s approach to Hawsawi’s case “has never been a strategy of delay and defer.” “This is not a person wants to be unhealthy,” he goes on.

After a discussion of Hawsawi’s pain chart, Swann expresses his frustration at having to argue against the “subjective belief of pain.” He pushes back at Ruiz’s insistence at tying Hawsawi’s surgery to the torture that led to that condition, saying that “a lot of people” have hemorrhoids.

“You weren’t sodomized,” Ruiz says.

“I’m sorry? What?” says Swann.

With that fitting exchange, the day comes to an end. Judge Pohl gavels the court out of session after explaining to Ruiz that if Hawsawi chooses not to show tomorrow, he’ll need to voluntarily waive his presence. Pre-trial hearings will continue tomorrow with or without Hawsawi.