Military Commissions Resume On Guantanamo Amid Biden Closure Plans and Pandemic Uncertainty

As court hearings go, the July 13-14 session on the Guantanamo Bay Naval Base was relatively mundane. Lt. Col. Michael Zimmerman, a Marine judge appointed to a military commission last September, took questions from a defense lawyer and a prosecutor over his ability to be impartial in the case against Abd al Hadi al Iraqi, a detainee charged with war crimes in Afghanistan. Neither side sought to disqualify the judge at the conclusion of voir dire. The brief session, with less than five hours of total court time, nevertheless signaled a significant development – the resumption of public military commission proceedings after more than 500 days of pandemic-induced delays.

The case against Hadi, an Iraqi alleged to have been a senior al Qaeda operative before his capture in 2006, was the first of what is queued up to be a busy late summer and fall in the Guantanamo courtroom. Included in the current schedule is a two-week session in September – encompassing the 20th anniversary of the Sept. 11, 2001, terrorist attacks – for the military commission against the five detainees accused of planning the 9/11 operation.

The 2021 court calendar begin filling up last month after the Naval base ended its 14-day quarantining requirement for visitors to the base, so long as they can show proof of being fully vaccinated. Three military commissions, including Hadi’s and the 9/11 case, are in the midst of protracted pretrial proceedings; a fourth involves a detainee who has pleaded guilty and is awaiting sentencing; and a fifth is scheduled to start up at the end of August with the arraignment of three detainees charged in the same case.

“The goal is for all of us to go back to business as usual when it comes to Covid, when it comes to access to the base, and travel to and from the base,” Navy Capt. Sam White, the base commander, said in his office to a group of nine reporters who travelled to the base for the Hadi hearing.

White assumed command of U.S. Naval Station Guantanamo Bay in mid-June, a few weeks after his predecessor lifted the quarantine restrictions – and also at a time when infection rates from the Delta variant were beginning to spike stateside. He said the travel protocols would face continuing reassessment and that the base would follow rules set by the Centers for Disease Control and Prevention and his chain of command.

Ronald Flesvig, the public affairs director for the commissions, said that commission judges have made a determination “that Covid-19 mitigation efforts, and particularly vaccinations, have resulted in circumstances permitting the resumption” of in-person hearings.

Asked whether a military judge could be ordered to continue hearings even if the base resumes quarantining requirements, Flesvig said that the “scheduling of proceedings in commissions’ cases falls within the independent and unfettered authority and discretion of” the judges.

The commission cases are moving forward against the backdrop of a new administration intent on closing the Guantanamo Bay detention facility by the end of President Biden’s first term. An integral part of that process is the work of an interagency parole system known as the Periodic Review Board that reviews the status of detainees not facing charges in the commissions. The administration made its first transfer this week of a detainee cleared for release.

In his media roundtable, Capt. White likened his command job on the base to being a landlord with many tenants, among them the Office of Military Commissions, which runs the trials of detainees charged with law of war offenses, and Joint Task Force Guantanamo, which runs the detention operations of the 39 men still held there by the U.S.

On July 13, at the start of the first public court hearing in 18 months, those two sides had trouble coordinating when it came to the defendant’s health and ability to participate in the proceedings – a not uncommon dynamic in the military trials.

Hadi, 60, suffers from a degenerative spinal condition that has required five surgeries in recent years. His therapeutic chair, which he uses instead of a normal courtroom chair, was not in court Tuesday morning, leading to an hour delay before it arrived. At that point, two members of the guard force brought Hadi into court in a wheelchair. He required a walker to make the short transition to sitting at the defense table. (A hospital bed is also available at the back of the courtroom in the event he needs to lay down.)

Hadi takes one Percocet prior to proceedings, then typically takes a Valium during a morning break before taking a second Percocet in the early afternoon. As a late morning break in voir dire approached, Hadi’s team learned and informed Zimmerman that the medical staff did not bring the Valium and the second Percocet to court. Zimmerman initially called for a recess before deciding to break until Wednesday morning.

“My client is permanently disabled and needs pain medication to get through these hearings,” Hadi’s lead lawyer, Susan Hensler, explained to reporters Tuesday afternoon. (Hadi’s lawyers say his name is Nashwan al Tamir and refer to him by that name in court and in pleadings.)

Over the two court sessions, the government was brief in its questioning of Zimmerman. One of the case’s prosecutors, Navy Lt. Commander Charles Roman, established that the judge did not have any significant close relationships with current or former legal professionals associated with Hadi’s case. Hensler probed deeper into Zimmerman’s career, focusing on the judge’s past deployments to Iraq and Afghanistan.

“You're aware that most of the charges and allegations relate to events in Afghanistan?” Hensler asked.

“Yes,” Zimmerman replied. In response to a follow-up question, he said he did not believe he had been to any of the locations in Afghanistan mentioned in the charge sheet against Hadi.

Minutes later, Hensler told the judge that her team was not moving to disqualify him but reserved the right to at a later time “if it becomes necessary.” Zimmerman is the fourth judge to preside over Hadi’s case.

The parties then turned to setting a path forward for the proceedings, which are in an awkward pretrial position. The first judge on the case, Navy Capt. Kirk Waits, revealed after his departure that just a few months after Hadi's June 2014 arraignment he had applied to become an immigration judge within the Department of Justice – a potential conflict of interest given that Justice Department prosecutors work on the case. (Prosecution and defense teams in the military commissions have a mix of civilian and military lawyers.)

In April, the U.S. Court of Appeals for the D.C. Circuit, which hears appeals arising from the commissions, declined to dismiss the case. However, in doing so, it relied on the government’s proposal that Hensler’s team could seek “de novo reconsideration” of any rulings by Waits and his two successors. Under the government’s proposal, the defense team can also identify favorable rulings that it wants to keep in place.

Waits disclosed his job application after what was perhaps the military commissions’ most high-profile disaster of recent years, in 2019, when the D.C. Circuit vacated rulings made by Air Force Col. Vance Spath, the judge in the case against detainee Abd al Rahim al Nashiri, after revelations that Spath also applied to become an immigration judge. (Pretrial hearings in the case against al Nashiri, who is charged with planning the bombing of the USS Cole in Yemen in October 2000, are set to resume with a two-week hearing starting Sept. 20.)

“For the second time, we face the question of what to do about a Guantanamo military commission judge who, while presiding, seeks employment with an entity involved in prosecuting the detainee,” Judge David Tatel lamented at the start of the panel’s decision in the Hadi case.

Hensler’s team is still in the process of identifying which rulings it wants Zimmerman to reconsider, and which to leave in place.  In court Wednesday, the parties argued over the meaning of “de novo reconsideration.” Hensler told Zimmerman that rulings identified by her team should first be vacated and then made subject to new arguments. She said the judge should not review the existing record and use future hearings and pleadings as supplements to that process.

“I think, honestly, supplementing the written record in this case would occupy Your Honor for the rest of your natural life,” Hensler argued. “We need to brief these issues anew, as they stand now.”

Hensler said that she did not foresee her team wanting to relitigate every issue that has arisen in the case but that the “process of scrubbing the taint from this commission, which has been active for seven years, is going to take some time.”

Prosecutor Vaughn Spencer contended that the D.C. Circuit rejected “the remedy of vacatur” as unnecessary to remove the taint. He told Zimmerman that it was within his “discretion whether to allow new evidence” but that the judge should read his three predecessors’ past rulings to determine if they were “correct factually or legally.”

“So the government would respectfully submit that the appropriate way to do it is have it be actual reconsideration, not just consideration by itself for the first time,” Spencer said.

Zimmerman did not rule on the disputed interpretation Wednesday.

After court, Hensler told reporters that Biden’s decision to end the war in Afghanistan should lead to the dismissal of her client’s commission given that his alleged war crimes took place during that war.

“Nashwan should be sent to a country where he can receive adequate medical care,” Hensler said.

While her client is vaccinated, defense lawyers do not know the vaccination status of the Joint Task for Guantanamo guard force members who work in the detention camps and transfer the detainees to legal meetings and to court. During Hadi’s hearing, the detainees who handled him in the courtroom wore masks and face shields.

In his meeting with reporters, Capt. White said that the vaccination is not mandatory. He said that both he and the Joint Task Force Guantanamo commander continue to push the same message – “that vaccination is a very good thing and is highly recommended.”

Dawn Grimes, the public affairs officer for the base hospital, said that 61% of the base’s residents who are 18-years or older are fully vaccinated, and that nearly 65% had received one dose, as of July 14. She added that the hospital has done 52 vaccination clinics “and is now administering vaccine by appointment at our Primary Care Clinic.”

Grimes said that the hospital has “limited” capabilities when it comes to treating serious illnesses.

“Our role in care for any illness or injury requiring long term or intensive care is to stabilize and transport to the most appropriate health care facility,” Grimes said in response to emailed questions. The detention area also has its own medical facility providing primary and critical care with in-patient beds.

Navy Capt. Garrett Kasper, the spokesperson for Joint Task Force Guantanamo, said he could not provide a JTF-specific vaccination rate but that its numbers are included in the overall base figures.

“Keeping our workforce safe and healthy is paramount to ensuring we are able to continue our mission of conducting safe, humane and legal care of the detainee population," Kasper added. "Regardless of their vaccination status, our guard force members follow Covid mitigation plans that meet or exceed CDC, WHO and Department of Defense guidelines.”

The next hearing on Guantanamo is scheduled for July 27-28 in the commission for Majid Khan, who pleaded guilty in 2012 to working as a courier for al Qaeda and has been cooperating with the government. A panel of military officers will sentence Kahn later this year. That case also has a new judge, Air Force Col. Mark Milam, who will undergo voir dire at the upcoming session.

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.