September Hearings at Guantanamo Bay for Hadi al Iraqi

Ernesto Miranda, 1967, the defendant in the landmark U.S. Supreme Court case that bears his name

Ernesto Miranda, the defendant in the landmark U.S. Supreme Court case that bears his name (1967)

The hearings I am scheduled to observe at Guantanamo Bay for Hadi al Iraqi have been shortened from one week to only 3 days, September 21-23. Only two (but important) issues are set for the commission:

1. Defense Motion to Suppress, AE 045

On June 9, 2015, the defense team filed a motion to suppress statements al Iraqi made while in custody to federal law enforcement agents between May 2007 and May 2009. The Uniform Code of Military Justice (“UCMJ”) requires Miranda like warnings to be issued prior to questioning. The Military Commission Act specifically exempts the Military Commissions from following this UCMJ requirement. The 35-page defense motion can be found here.

The defense first argues the Fifth Amendment and Miranda require the suppression of statements made by al Iraqi because he was in CIA custody and was not read Miranda warnings before interrogation. The defense addresses an argument they expect the prosecution to make, in that the admissibility of the statements hinges whether Miranda applies, but whether the the Fifth Amendment applies.

Second, the defense argues whether or not the Fifth Amendment applies, Miranda warnings are required since the Military Commission Act (MCA) requires the exclusion of statements obtained by torture or cruel, inhuman, or degrading treatment. That MCA provision can be found here. The defense motion has a dearth of quotes from a number of judicial decisions that have discussed the right against self-incrimination.

2. Intent to Disclose Classified Information

 The commission will hear argument and receive evidence on the Notice to the Defense of the Government’s Intent to Disclose Classified Information Pursuant to M.C.R.E 505(h)(2). The documents pertaining to the issue listed on the Military Commission are not yet available for download.

Interesting Side Note

President Obama and Pope Francis, 2014

President Obama and Pope Francis, 2014

Pope Francis is scheduled to visit Cuba before he travels to Washington D.C next week. Rumor has it he will be in Guantanamo Bay on September 22. Pope Francis, the first pope from Latin America, played a key role in restoring relations between the United States and Cuba. It will be interesting to see if does indeed stop by GTMO and to learn what his interests there may be.

I am expected to be joined on this monitoring mission to Guantanamo Bay by 11 Observers from a range of institutions around the U.S. We have been communicating with each other via e-mail, introducing ourselves, requesting and receiving tips on travel to Andrews Air Force Base for our early morning flight to Cuba on Sunday, and organizing logistical matters. I am looking forward to meeting all of my colleagues in just a few days.

By: Tyler Smith, 3L, Indiana University Robert H. McKinney School of Law

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