I flew from Andrews Air Force base to Guantanamo Bay, Cuba on a Delta Airlines 757 chartered by the Department of Defense to ferry over 100 people involved with the Military Commission case against Hadi al Iraqi.

I am with a team of 11 representatives of non-governmental organization fouls (NGOs) who are monitoring these criminal proceedings. 

Today’s business on the ground was primarily getting a security briefing, picking up our Military Commission badges, learning our likely program of courtroom and other activities for the week, dinner at O’Kelly’s Irish pub, and playing Taboo. 

Our first hearings are in the morning. 

Members of the Delta cabin crew joined me for photos at the Guantanamo Bay Air Station. 

A couple of the NGOs took photos at Camp Justice, where we are living in tents for the next several days. 

Usually in my pre-departure blogs before I travel to Guantánamo Bay, Cuba, I focus on the specific detainee whose hearings I am traveling to monitor. This time it is a little bit different.

I’m sitting at Andrews Air Force Base waiting for a plane to Cuba for hearings in the case of Hadi al Iraqi, who is alleged to be a high level member of al Qaeda, liaison between Al Qaeda Iraq and the Taliban, and responsible for deaths of multiple individuals perpetrated in the context of armed conflict.

This is my first trip to Guantánamo Bay under a new administration elect. There are dozens of us here at Andres, sitting and waiting. Everyone is involved with the Military Commission hearings–the prosecution, defense counsel, media, NGOs, court room staff, tech staff, and many others.

How many are asking themselves now whether the new administration will move towards closing Guantánamo Bay, move towards keeping it open, or move towards increasing the numbers of detainees at Guantanamo?

Will members of ISIS or Daesh be sent to Guantanamo? Will “enhanced interrogation” continue at the levels deemed acceptable by the Obama administration, or will it be increased beyond that–at levels deemed by the Obama administration to be unlawful? Will this enhanced interrogation, if it is reinstituted, be conducted at Guantánamo Bay or conducted elsewhere before individuals are taking to Guantanamo Bay?

Will there be additional prosecutions of detainees who have bee at Guantanamo up to 15 years? If so, will there be charges that carry the death penalty?

We should have answers to these and other questions soon enough–if not before 20 January 2017, then certainly soon after.

I Monitored Guantanamo Bay War Crimes Hearings Broadcast Live at Ft. Meade, Maryland.

Guantanamo Bay war crimes hearings are broadcast via CCTV live from Cuba to Ft. Meade, an army base in Maryland. I traveled from Indiana to Ft. Meade, Maryland to monitor Guantanamo Bay pre-trial hearings in the case against Khalid Shaik Mohammed and the 4 other alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon.

I arrived at Washington-Dulles International Airport on Sunday, 9 October 2016 for hearings scheduled to begin the next day. Monday, October 10, Columbus Day. We learned that the hearings would start a day later, on Tuesday, October 11, so I decided to use Monday to tour Washington D.C. Unfortunately, while at Ft. Meade I missed my husband’s bar admission ceremony on Tuesday morning in Indianapolis. Thankfully, he had encouraged me to attend the hearing, as he understood that it was a very special opportunity.

Local Transportation and Venturing into D.C.

I booked a Super Shuttle – a shared van cheaper than a taxi — to take me to Ft. Meade. Since I opted for the cheaper option, it took about 2 hours to reach the military base. The van dropped off 3 other passengers on the way. The Ft. Meade Visitor Center was closed when I arrived. I was thankful that fellow Indiana University McKinney School of Law students Katherine Forbes was waiting at the gate to escort me onto the base. Katherine is a member of the military, and has an ID card (Department of Defense CAC – Common Access Card) that permits her to enter the base and escort others onto the base. I was not going to be able to pick up my Ft. Meade access badge until Tuesday morning, just before the hearings began. We had dinner and went to our hotel for the evening.

The next morning, Columbus Day, Katherine dropped me off at Odenton train station (the MARC station), about an 8-minute drive from Ft. Meade. The train ride into D.C. was very reasonably priced, and only took about 40 minutes from Odenton Station to Union Station. Union Station is located half a mile from the Capitol building and the Supreme Court. From there, I used Uber to get around and spent the day wandering around the city and walking from landmark to landmark. I made it back to Ft. Meade by 7PM, and had dinner with Katherine before continuing to prepare for the next day’s hearing.

The Hotel

Katherine is in the Indiana National Guard, so we were able to stay at the Candlewood Hotel located inside Ft. Meade. The hotel was built only 3 years ago, and was very clean and well-appointed. Our room had a kitchen, including a dishwasher, full size refrigerator, microwave, and coffeemaker. The cabinets were stocked with silverware, dishes, and glasses. Every morning, the hotel offers a complimentary continental breakfast.

Visitor Center

On Tuesday morning, Katherine and I drove to the Visitor Center and met up with Faisel Sadat, an Egyptian international LL.M. student at IU McKinney. He needed to be escorted onto the base, and Katherine was able to do that. Faisel and I were each issued a day pass onto the base.

 

Badge Issue

Originally, we were under the impression that our Ft. Meade badges would be valid for one year from the day of pick-up. Unfortunately, there must have been a misunderstanding, because we were only issued a one-day pass. We were able to get back onto the base with no problem, and made our way to the hearing located at the McGill Training Center.

The Courtroom – Viewing from McGill Training Center

The room in which the hearing was broadcast was a large training/educational room in the McGill Training Center. There were several rows of desks with 2-3 chairs per long desk. In the back of the classroom, there was a cubby box of around 20 individual cubbies to place your phone in, which could be locked with a key. Personal communication devices are not allowed during the transmission of the court proceedings. Apart from the IU McKinney attendees, there was one gentleman present who works for a federal law enforcement agency, another gentleman I did not meet, and a lady whom I also did not meet.

The section of the courtroom at Guantanamo Bay that was visible at any given moment depended on who was speaking and which camera was panning at that moment. There was a camera that showed most of the courtroom, with the defendants, their counsel, and the prosecution visible at once, a view of the judge when he spoke, a view of the witnesses who testified seated next to the judge, and live feed from witnesses who transmitted their testimony from a location just outside of Washington, DC.

From the perspective of the judge looking into the courtroom, the 5 defendants were seated on the right, each at a separate table.

Each defense team was split according to the defendant, and divided into 5 small groups, seated in the 5 rows. Seated at the 6^th and final table on the defense side were lawyers for one of the defendants who did not want his lawyers to sit next to him at his table. Each defendant was wearing a headdress, and Khalid Sheik Mohammed was the most recognizable in his

The prosecution sat at a series of tables to the left of the judge.

The Hearing

The hearing started at 9:00 AM with Military Commission Judge Army Colonel James L. Pohl addressing each defendant, inquiring whether they understood their rights to waive attendance at the hearing. Each of the five defendants was required to be present to hear their rights, but, Ramzi bin al Shibh was not present when court opened.

The judge addressed al Shibh’s counsel, requesting that he convince al Shibh to voluntarily be present at the hearing, otherwise, he would be involuntarily brought in.  He called for a 15 minute recess for bin al Shibh’s counsel to speak with him. When the court reconvened, al Shibh had joined his defense at the table.

bin al Shibh stated on the record that he boycotted the legal proceedings, and in an act of protest, refused to acknowledge his right to waive attendance. The judge asked him several times to acknowledge his rights, but al Shibh refused. Eventually, the judge asked for al Shibh to be escorted away, and we found out through Aline Fagundes, a McKinney LL.M. student who was present in the observer gallery of the courtroom, that al Shibh was removed, while

The four other defendants — Khalid Sheik Mohammed, Walid bin Attash, Ammar al Baluchi, and Mustafa al Hawsawi — acknowledged their rights in Arabic. Each defendant had an interpreter seated next to him to who helped facilitate conversations between the defendants and their defense team members. There was an off camera interpreter who interpreted on-the-record communications in the courtroom.

Motions

The hearing proceeded with the following motions/issues addressed:

1. Defense raised al Baluchi’s motion to compel declassification of classified documents.
2. Regarding the seizure of a certain document containing defense notes from the defendant, four witnesses were put on the stand to testify:
   • “Captain L”
   • “Captain B”
   • “Assistant Watch Commander 1482”
   • “Major (?)”

2. Regarding the modification of a protective order, Learned Counsel James Connell III asked the judge to require the modification of the order in question, and not allow the creation of a new order as a matter of simplification.

Lunch

The courtroom recessed at 12:45 PM for lunch, and the group of observers made our way to lunch on the base, to discuss what he had experienced so far, and ask for clarification from Professor Edwards on procedural questions.

The 6 IU McKinney Observers went to the Food Court. We chose different restaurants, got our food, then all sat together to talk about what transpired that morning in court. We talked about the proceedings up to that point, and discussed why the hearings were taking as long as they are, in general.

I learned from that defense’s counsel appear to work as hard for their clients as any defense counsel would, notwithstanding what criminal actions the client may have allegedly been involved in or how much evidence may exist of the client’s involvement.

We then took group photographs before returning for post-lunch proceedings.

Afternoon Hearing

 The court reconvened at 2:00 PM.

The first motion presented after lunch concerned classified material. The defense argued that documents received from the prosecution were highly redacted and in some cases, unable to be read other than a few words. It was a concern to the defense that the redactions were causing discovery issues, and that redactions were being applied arbitrarily and in a disingenuous manner, to intentionally interfere with defense’s preparation. The hearing continued until 4:00 PM on the topic of redaction, until Judge Pohl called for the hearing to be continued the following day.

Post-Hearing

After the courtroom was dismissed for the day, I had a chance to speak with one of the other Observers who seemed to work for the government and who has been to Guantanamo Bay on many occasions. It was interesting to speak with someone who appears to have sound knowledge about the Military Commissions.

A little later, I was dropped off at the Visitor Center where Super Shuttle was picking me up to take me back to the airport. While at the Visitor Center, I ran into Professor Edwards, and we discussed the hearing, and my background and interests. He was at the Visitor Center to discuss the issue of several observers being given one-day passes instead of a year-long access card. The person in charge told Professor Edwards that they would look into the problem. After discussing the issue, Professor Edwards and I took several pictures outside of the Visitor Center that may be helpful to a future observer in finding where to go upon arrival at Ft. Meade.

From Ft. Meade to Dulles, and Home Again, Reflection

This time, I was the only person picked up by the shuttle, so the drive to Dulles only took about an hour, even in evening rush hour traffic. The plane ride back home was quick and uneventful. I look forward to observing again in the future.

This opportunity afforded me a valuable glimpse into the proceedings that are ongoing in Guantanamo Bay. The fact that I am one of not many people to actually be able to witness the proceedings feels very special, and something I will remember for the rest of my life.

I knew that the hearings would have the normal U.S. court proceeding structure, but the realization did not occur to me until that morning that I would have the rare opportunity to hear the “9/11 Five” speak live. Seeing the defendants and hearing them speak both Arabic and English really brought a very human moment to an occurrence in history that seemed surreal to me, having happened when I was a young girl.

I urge anyone with an interest to apply as an observer. The opportunity is very unique, and not something many people can say they have ever experienced from the vantage of the IU McKinney Military Commission Observation Project.

Sheila Willard, J.D. Candidate 2018

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University Robert H. McKinney School of Law

A Long Awaited Trip to Fort Meade

Over fall break I had the opportunity to travel to Fort Meade, Maryland to view the pretrial hearings of alleged terrorist Khalid Sheikh Mohammed (KSM). KSM is alleged to be involved in the September 11, 2001 terrorist attacks as well as other terrorist activities. Mohammed is currently being held in Guantánamo Bay, and while the hearings take place in Cuba, approved NGO observers can view the hearings via secure link from Fort Meade military base. I’ve been involved with the Military Commission Observation Project for almost a year now and this is the first time I’ve had an opportunity to view a hearing. This spring I was scheduled to attend the hearing of Abdul Hadi al Iraqi, who is alleged to be involved in attacks and terrorist plots in Afghanistan and Pakistan, however that hearing was postponed just before departure.

As an NGO observer it’s important to stay up to date on the hearing schedule because it changes frequently and sometimes with little notice. The KSM hearings were originally scheduled for Monday through Friday of Fall Break however we received word from Professor Edwards that the hearings most likely would not be held on Monday and the earliest start would be Tuesday. I arrived on Tuesday morning after an all-night drive from Indiana. After checking in at the Fort Meade visitor Center, I proceeded to the building on the military base where the hearings were streamed. I didn’t realize how large Fort Meade is. It has its own shopping mall with food court and hundreds of families live on the base, which is home to divisions of several government agencies.

Court is in Session

The court room was not at all what I expected. I was imagining a traditional looking court room and was playing off some stereotypes from the 1992 thriller “A Few Good Men”, however the court room was a simple room and full of books on rolling carts. Also I expected to see one camera angle for the duration of the hearings, however the court has several cameras for several camera angles and the feed switches camera angles depending on who is speaking in the courtroom. A few times during the hearing we had to pause because of problems with the translator’s equipment, which is apparently a reoccurring problem. This matter is further confounded by the fact that KSM speaks English and was educated in the United States. The main issue being discussed while I was at the hearing had to do with contents of KSM’s legal bin. Detainees have their own legal bin, which is a physical bin, and when they do any work in preparation for trial they are instructed to place this work in their legal bin so that it is not reviewed by unauthorized parties. Further any paper with writing or any material done in anticipation of trial is supposed to be stamped with a detainee specific stamp and number.

Topics for Consideration

Problematically KSM is not supplied with pre-stamped paper. His attorneys allege that material from his legal bin was reviewed during cell searches. The facts seem to support this claim and we heard testimony from several people with relevant knowledge of the incidents. It really seemed to come down to the fact that while the material was in the legal bin, it wasn’t stamped with the proper stamp and number. Those who gave testimony and who had relevant knowledge of the matter claim that when the cell was searched and the materials in question were discovered, a translator was summoned and that the translator recognized that the writing, which was in Arabic, was done in anticipation of legal proceedings. While, practically, a translator might be qualified to make this determination, procedurally, this is inappropriate because the translator shouldn’t be functioning in a legal capacity. Further, if the writing was done in anticipation of legal proceedings then the contents of that material should be limited to only KSM and his attorneys. These incidents threaten KSM’s attorney-client privilege, because unauthorized parties are reviewing legal material. However, one can also see why it might be problematic to provide KSM with pre-stamped paper to be used for legal purposes without knowing what he’s going to write on it and that it actually will be used for legal purposes.

The court went on to consider other motions and the subject of classified material became a forefront issue. Specifically, there were a lot of pages of classified material that the defendant’s attorney would like to have further access to. During the hearings in Fort Meade the live stream sometimes shows a document rather than a camera angle. During the hearing I attended, several documents were presented with sections of the documents blocked out, not visible, because the materials were considered classified. One of the problems that the court struggled with is what to do with this situation. The judge at one point, in an aside, plundered aloud whether he should be the one to review the documents which he himself claimed not to have access to. It was also briefly considered that it might be appropriate for KSM’s attorneys to have access to some of the classified material, while withholding it from the detainee himself. Of course this also presents challenges because KSM’s attorneys might be acting on information that KSM is not privy to himself.

A Word to Future Observers

As is often the case in legal proceedings, the Military Commission Observation Project pretrial hearings are often plagued with cancellation, delays, and other incidents that can affect the hearing schedules. In fact, when I went to Fort Meade over fall break there was concern that Hurricane Matthew could delay the hearing, but nonessential evacuated personnel were returned to Guantánamo Bay before that hearing was set to take place and the hearings preceded on Tuesday, one day later than previously scheduled. And the Abdul Hadi al Iraqi pretrial hearings in January were postponed as a result of a motion for continuance.

I drove out to Fort Meade and next time I’ll consider flying, but if I do fly I’ll be sure to purchase travel insurance in case something unexpected happens with the hearing that I’m scheduled to attend. Getting onto base at Fort Meade is easier than I expected. I submitted the proper paperwork to Professor Edwards prior to departure and didn’t have any problems when I got to the Fort Meade Visitor Center. However, after you’ve been cleared by the Visitor Center, make sure you attempt to enter the base through gate that is convenient to get to the viewing building and see the hearing. I learned the hard way that if you put the building location in your GPS, your turn by turn navigation might lead you into Fort Meade installation by a gate other than the one that is the most convenient for you. In the end I was fine however I entered Fort Mead military installation through an NSA drop off entrance. While I was allowed entrance to Fort Meade through the NSA entrance I was subject to additional security screening. This happened on the second day when I attempted to return for the hearings. On the first day I followed Prof. Edwards instructions, went in through the most convenient gate, and didn’t have any problems.