The Gitmo Observer has updated 4 draft documents useful for anyone interested in the Guantanamo Bay, Cuba U.S. Military Commissions, and for anyone traveling to Guantanamo Bay for hearings or other purposes.
Each document is in a preliminary draft stage, with further research, writing and editing underway. Nevertheless, the Gitmo Observer hopes that these materials are helpful.
The documents, which are available for free download below, are:
Lists the international and domestic law applied at the Guantanamo military commissions, explains the law, and identifies how the law affects Guantanamo stakeholders, such as the defense, prosecution, victims and victims’ families, witnesses, U.S. military who guard the detainees, the media, and other stakeholders. Explores rights and interests of all stakeholders, not just rights of the defense.
Contains a useful Glossary for military and legal terms, and for items associated with Guantanamo Bay.
Contains important law documents related to the proceedings, such as the charge sheets (indictments) of the 3 major pending cases, and excerpts from binding human rights and humanitarian law treaties (e.g., Geneva Conventions, Convention Against Torture, Civil & Political Rights Covenant, Race Convention), the U.S. Constitution, U.S. Supreme Court cases, the Military Commissions Act, Presidential Executive Orders, and military commission jurisprudence.
A selection of important sections of the Full Guantanamo Bay Fair Trial Manual. Provides background information on the military commissions, descriptions of the 3 active Guantanamo Bay hearings, list of previously convicted detainees, the status of current detainees, a schematic of the courtroom (identifying principal courtroom actors), and a Glossary of military and legal terms, and for items associated with Guantanamo Bay.
A guide for anyone traveling to Guantanamo Bay for military commission hearings, client visits, media trips, or other purposes. Contains substantial information geared towards non-governmental organization representatives traveling to observe Guantanamo hearings, but much of the information is useful for any traveler. Contains information about lodging, Guantanamo Bay restaurants, evening / weekend adult entertainment (bars), water activities (beaches, boating, swimming), outdoor activities (hiking, golf, tennis, etc), other sports (bowling, pool), movie theaters, gyms, religious activities (services, fellowships), and more.
If you have any comments or suggestions for our four documents, please feel free to let us know at GitmoObserver@yahoo.com.
We have received very positive, constructive feedback in the past, and we look forward to further input from you!
al Sharqawi to ask Pentagon on Tuesday to release him from Guantanamo Bay after 15 years in custody
On Tuesday, 28 February 2017, Abdu Ali al Haji Sharqawi, who is a Guantanamo Bay detainee from Yemen, will appear at a hearing at which he will likely tell U.S. officials that he is not a threat to U.S. national security and that he should be resettled in a 3rd country.
Sharqawi, who is 43 years of age, was picked up in Karachi, Pakistan in February 2002, one month after the first detainees were brought to Guantanamo Bay. He arrived in Guantanamo Bay in 2004, after 3 years in custody under the direction of the U.S., first in Jordan then Afghanistan. It is alleged that he was tortured in Jordan and Afghanistan.
On Tuesday he will argue for his freedom from the incarceration he has endured for almost a third of his life.
The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.” Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.
Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.
The Board itself consists of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence.
The hearing will be held at Guantanamo Bay, but will be transmitted by CCTV to secure locations to permit review by participants and cleared persons who are not physically in the Guantanamo Bay hearing room. I plan to view from a secure room in the Pentagon.
The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States.
In making this determination, the Board considered that the detainee developed ties to senior al-Qaida leaders such as Usama Bin Laden and Khalid Shaykh Muhammad, associated with al-Qaida plotters and operatives including members of the USS Cole bombing and some of the 9111 hijackers, and probably provided logistical and financial support for al-Qaida operations to include facilitating the travel of fighters from Yemen. Further, the Board noted that the detainee’s statements and behavior while in detention indicate that he remains committed to engaging in violent acts against the United States, the difficulty in assessing his current mindset and credibility due to his decision to not participate in the hearing, and insufficient information presented to the Board regarding his plans if transferred and the support that he would have if transferred.
The Board appreciates that the detainee has engaged with his representatives to participate in the process. The Board looks forward to reviewing the detainee’s file in six months and encourages the detainee to fully participate in any future review.
Sharqawi was entitled to appear at his initial PRB last year and to speak on his own behalf. However, he did not appear, and the Board posted this notice on the PRB secretariat’s website:
“THE DETAINEE CHOSE NOT TO APPEAR BEFORE THE BOARD. THEREFORE, THE DETAINEE SESSION WAS NOT REQUIRED.”
File Review. Sharqawi had a PRB file review on 15 November 2016, and on 14 April 2016 the Board concluded:
MEMORANDUM FOR THE RECORD
SUBJECT: Periodic Review Board File Review Sharqawi Abd u Ali al-Hajj (YM-1457)
On I November 2016, the PRB conducted a file review for Sharqawi Abd u Ali al-Hajj (YM- 1457) in accordance with Executive Order (E.O.) 13567,” Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.” The PRB previously conducted a full review of the detainee and on 14 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States. After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted i n accordance with section 3(c) of E.O. 13567. [emphasis added]
Full Review. It is Sharqawi’s full review that is scheduled for this Tuesday. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will send him to a 3rd country – outside the U.S. but not Yemen – for resettlement. The U.S. is not now sending detainees back to Yemen for security reasons.
What will Sharqawi’s PRB be like?
I suspect that other representatives of Non-Governmental Organizations (NGOs) (including 2 students from Indiana University McKinney School of Law) will be present with me at the Pentagon on Tuesday, and possibly some media. This is the second PRB to be held under the Trump Administration, and the first of these, two weeks ago, attracted more NGOs and media than most earlier PRBs. The NGOs and media representatives will view from a secure room at the Pentagon.
Others present for the hearing will include members of the “Board” itself that conducts the PRBs. Presumably each of those representatives will watch remotely in his or her office in the DC area. Also likely to be present for the hearing are the Legal Advisor to the Board; the Case Administrator; a Hearing Clerk; and a Security Officer, though it is not clear where these individuals would be located at Guantanamo Bay or elsewhere.
Statements to be made at the PRB
The initial part of the PRB will be unclassified, and that is the portion of the PRB I will observe. During that portion of the PRB, I will be sitting in a secure Pentagon viewing room watching the hearing live, which will be happening at Guantanamo Bay.
The Pentagon posted 3 statements to be read at Tuesday’s PRB’s public session:
an Unclassified Summary prepared by the Government;
a Statement by Sharqawi’s private outside lawyer; and
a Statement by Sharqawi’s U.S. government-appointed non-lawyer “personal representative. The bodies of these three short statements are reproduced below.
The Unclassified Summary prepared by the U.S. Government to present at the PRB states, in full:
Sharqawi Abdu Ali al-Hajj (YM-1457), a.k.a. Riyadh, is a career jihadist who acted as a prominent financial and travel facilitator for al -Qa’ida and was closely tied to several senior al -Qa’ida members, including Usama Bin Ladin and Khalid Shaykh Muhammad (KU-10024), although he has repeatedly denied being an al-Qa’ida member. During his detention at Guantanamo, Riyadh has been semicompliant with the guard force and, until late 2004, provided his interrogators with a wealth of information on his extremist activities and associations. Riyadh remains a steadfast supporter of extremist causes and groups, most likely continues to view America as his enemy, and has praised recent acts of terrorism. There are no indications that Riyadh’s Yemen-based family members have engaged in extremist activities, although connections to extremist networks could offer Riyadh a potential path to reengagement in Yemen.
The private counsel for submitted a statement that provides, in full:
Members of the Periodic Review Board:
Good morning. My name is Pardiss Kebriaei, and I am Private Counsel for Sharqawi Al Hajj.
Thank you for the opportunity for Mr. Al Haij’s subsequent full review. We are encouraged that the Periodic Review Board has been continuing its work. The board’s purpose of whether continued detention is still necessary is vital for men like Mr. Al Hajj, who has been held in U.S. custody for over 15 years.
I am currently a Senior Attorney at the Center for Constitutional Rights, which has represented Guantanamo detainees since 2002, including dozens of men whom the United States, under the Bush and Obama administrations, has successfully repatriated or resettled. I have represented detainees for nearly ten years. I have represented Mr. Al Hajj since last year.
I’ll make a few brief points about the past, present and future with respect to Mr. Al Hajj.
With respect to the past: In Mr. Al Hajj’s habeas proceedings, the government’s case-in-chief relied on statements Mr. Al Hajj made during several interrogations in Bagram and Guantanamo in 2004. To the extent the board is considering any of this information as part of this review, it should know that then-Chief Judge Royce Lamberth of the D.C. District Court struck all of these statements as unreliable; he found that they were tainted by prior physical and psychological coercion Mr. Al Hajj experienced in prisons in Jordan and Kabul after his capture. Mr. Al Hajj is here to answer your questions about his present views and conduct, and his future intentions, but this point about the past bears noting.
With respect to the present: Mr. Al Hajj is 43 years old today. The impulses and views that led to his detention were by a young man in his 20s. The government’s unclassified profile of Mr. Al Hajj states that he ”most likely continues to view America as his enemy.” That description is outdated. Mr. Al Hajj’s detention has necessarily entailed interactions with Americans of different stripes over the years that have complicated and changed his view. Blanket statements no longer apply.
Moreover, Mr. Al Hajj’s health may be seriously compromised. He reports bouts of jaundice and weakness which, according to independent physicians with whom his counsel have consulted, may indicate a potentially grave liver condition that should be investigated. A medical expert opinion is included in Mr. Al Hajj’s detainee submission. Far from having the desire or energy for any involvement in conflict, the hardship of the past 15 years makes him want to tum away.
Finally, with respect to the future: Mr. Al Hajj would accept resettlement in any safe country the government believes appropriate. His family stands ready and able to provide financial and moral support for his reintegration wherever that may be, as they have stated in the detainee submission. My organization, which has worked closely with envoys from the Defense and State Departments on detainee transfers in prior years, also stands ready to assist.
Sharqawi’s “personal representative”, who is a non-lawyer appointed by the U.S. military, submitted a statement that provides, in full:
Members of the board, thank for allowing Mr. Sharqawi Abdu Ali Al-Hajj to have a second chance at hearing his case. I am his Personal Representative. He made the decision to not attend his first board because he did not feel confident sitting before the board without a Private Counsel. At that time, he still feared that the Board was a legal proceeding versus an administrative board and therefore, he did not want to attend without having his lawyer present.
But, since that time, he has attended every meeting with me and been very cordial. He is easy to get along with and is obviously a very intelligent person, who communicates well. He has worked well with both a female Personal Representative and Private Counsel.
Since Sharqawi has moved camps, he has worked to build his relationships with fellow detainees. During our conversations, he has indicated that since he has been here, he has learned to appreciate other people’s cultures which he had not before. He is actively participating in classes to prepare for life after Guantanamo and he speaks English quite well. His Private Counsel has been in contact with his family to confirm that they will support him after his departure from GTMO. He is open to repatriation anywhere and feels he is capable of working in other cultures since he has learned to work with other detainees in GTMO.
I appreciate your consideration of his case today as he answers your questions so you can decide if he still poses a threat to the U.S.
So far as we can tell, Sharqawi’s PRB is still scheduled to go forward on Tuesday, 28 February 2017. That is, the Pentagon has not notified us that it will not go forward. If it does go forward, it seems likely that Sharqawi will attend, which he did not do for his initial PRB last year.
The Pentagon approved my nomination to travel to Guantanamo Bay, Cuba to monitor the case against Hadi al Iraqi, and alleged high level member of al Qaeda who was purportedly a liaison with the Taliban. As a representative of the Indiana University McKinney School of Law’s Military Commission Observation Project, my job was to attend, observe, analyze, critique and report on Hadi al Iraqi’s hearings. My hearing dates were scheduled for 26 February to 3 March 2017.
I recently received an e-mail from Professor George Edwards (founder of IU McKinney’s Guantanamo Project) indicating that the Pentagon had cancelled Hadi al Iraqi’s hearings for that week. I felt somewhat disappointed because I was really looking forward to attending the hearing and further contributing to IU McKinney’s Guantanamo Bay work.
Prior to the cancellation, I could not stop talking about it with friends and former classmates. I even called my younger sister and she had no idea why I was interested in attending such hearing. I talked her ears off about who the defendants were and the crimes they had been accused of. I tried to share with her about international crimes, criminal justice, the rule of law, and the importance of transparency in proceedings such as this. I understand that those selected to monitor such proceedings play a very important role in human rights for all stakeholders in these military commission proceedings.
I remain hopeful that I will be able to monitor hearings of other defendants in March, either at Ft. Meade or Guantanamo Bay.
Johanna Leblanc, J.D., Indiana University McKinney School of Law
Observer, Guantanamo Bay, Cuba, Military Commission Observation Project
In 2016, I received my doctor of jurisprudence (J.D.) from Indiana University McKinney School of Law, where I studied international human rights law and was active in many human rights and civil rights projects, in the U.S. and overseas.
Now, I am part of the law school’s Military Commission Observation Project (MCOP), which was founded by Professor George Edwards. The MCOP, among other things, sends students, faculty, staff and graduates to Guantanamo Bay, Cuba to serve as observers or monitors for military commissions that were created to try alleged perpetrators of war crimes.
As a monitor, it is my job to (a) attend; (b) observe; (c) analyze; (d) critique; and (e) report on military commission war crimes hearings at Guantanamo Bay.
I have many reasons for wanting to travel to Guantanamo Bay for live hearings, or to travel to Ft. Meade, Maryland where the hearings are simultaneously broadcast via CCTV from Guantanamo to a secure facility on the Ft. Meade army base. I will talk more about those reasons in my next blog post.
For now, I am focusing on the hearings I am scheduled to attend on 26 February to 3 March 2 017 – against a man named Hadi al Iraqi (or Nashwan al Tamir).
Hadi al Iraqi
Hadi al Iraqi is a 51- or 52-year-old Iraqi citizen. He was taken into custody in late 2006, spent some time in Central Intelligence Agency custody, and was transferred to Guantanamo in April of 2007. He is considered a high-valued detainees (HVD), and is accused of, among other things, cross-border attacks against US and coalition troops from 2002 to 2004.
More on my background
I was born in Port-au-Prince, Haiti. I moved to the United States at the age of ten (10). In addition to my J.D. from IU McKinney, I also hold a master’s degree in public administration from Florida A&M University (FAMU) and a bachelor’s degree in political science from Bethune Cookman University.
During law school, I was a part of the Program in International Human Rights Law (PIHRL) which was founded by Professor George Edwards. Through this program I was able to travel to South East Asia, Southern Africa, and Western Africa where I worked on access to legal justice, child marriage/women’s rights, and electoral reforms. With my exposure through our world renowned human rights program at IU-McKinney, I further developed an interest in international laws and politics. In particular, I am interested in how international law and politics help shape domestic and international policies regarding immigration, trade, and other aspects of relationships between countries.
I was nominated to travel to the Pentagon to monitor a Guantanamo Bay Periodic Review Board hearing for a detainee who was asking the U.S. to release him from Guantanamo.
The PRB – Periodic Review Board – is a discretionary administrative procedure held in Guantanamo Bay and transmitted via a secure link to the Pentagon. PRBs analyze whether the detainee will remain in Guantanamo, will be transferred to a third country to resettlement, or will be repatriated to its original country. PRBs do not address the legality of any individual’s detention, but attempt to assess whether the detainee is a threat to the national security of the United States.
I was nominated to monitor this PRB by the Periodic Review Board Project of Indiana University McKinney School of Law’s Program in International Human Rights Law. This is similar to the way I was nominated to monitor military commission hearings at Guantanamo Bay, Cuba, where I traveled last year and posted about on this blog here, and on twitter.
I understand that the Pentagon is interested in Guantanamo Bay military commission hearings and PRBs being transparent, so they permit observers / monitors to be present.
I flew from Indianapolis to Washington, D.C. on 8 February 2017, in anticipation of an early trip to the Pentagon the next day for the PRB. I stayed at a hotel near the Pentagon.
On the morning of 9 February 2017, at about 7:30, a hotel van dropped me off at the Pentagon, where I went to the Visitor Center. There I walked through a maze as I entered the Pentagon, and went through a security system that seemed more intricate than at an airport. After, I entered the Visitor Center waiting room, where I saw representatives from other non-governmental organizations and members of the press who were also waiting to be escorted to the PRB.
When the escorts came to take everyone to the PRB room, I learned that my name was not on the list. I was not among the cleared NGOs! It was noted that they apparently did not receive my form within the deadline. I immediately called the McKinney director of the program who also immediately forwarded to me e-mail copies of messages to the Pentagon requesting my clearance. We had about 10 minutes to try to solve the issue. Unfortunately, it was not resolved and I could not benefit from the Pentagon’s last-minute clearance procedure even though I could show my completed, signed, required PRB Ground Rules form. I was not allowed to attend the PRB that day.
So, I was left behind.
It was very disappointing. The sole purpose of my flight to DC – for fewer than 24 hours – was to attend and monitor the PRB on behalf of our law school’s project. I flew from Indianapolis to DC one evening, was at the Pentagon early the next morning, and was due to fly back to Indianapolis in the afternoon of the same day.
Well, what is done, is done.
And, my trip was not wasted!
Two weeks before, when I knew I was going to be in the Pentagon, I requested a tour. The tours can be requested at this link at least 14 days in advance and not more than 90 days away from of the visit.
My escort during the tour. To be admitted in this position, he had to memorize, word by word, 33 pages of the information presented during the visit.
The guided Pentagon visit is very basic but interesting. We passed through areas that did not look like what I imagined the Pentagon would look like at all. For instance, we started in a theater with a brief explanation of the rules. No photographs were allowed during the tour, of course. After that, we crossed an area similar a mall, with all sorts of storefronts like for candy, clothes, flowers, ceramics, shoe repair, leather accessories, candles, a bank, Starbucks and fast food such as McDonald’s, Subway, and Burger King. Everything to serve the population of 26,000 people. The visit also included the Pentagon Memorial Quilts. After the 9-11 attack in 2001, people from all over the country sent quilts to pay tribute to the victims.
Why quilts? Jeannie Ammerman led the September 11 Quilt Memorial Project, an idea given by Drunell Levinson, an eyewitness who felt a strong desire to do something helpful but was uncertain how to proceed. As a fabric artist and quilter, she was not qualified to help with rescue and recovery efforts, and blood donation centers were already crowded with volunteers. Thus, she came up with the idea of gathering quilts, as a symbol of a communal activity.
This photo is from the internet.We are not allowed to take pictures or use any device during the Pentagon tour.
After my Pentagon tour and my lunch, the hotel shuttle too me back to the hotel to pick up my luggage and then to the airport for my return flight to Indianapolis. The shuttle driver shared with me his story of life. Living in the U.S. for ten years already, originally from Ethiopia, after two degrees (one from Nairobi), he is pursuing a Ph.D. in Business and Economics, with a United Nations Scholarship, as a political exile. Nice story to end a day of frustration.
Another PRB is scheduled for a different detainee on 28 February 2017. When asked, I declined a nomination to attend since I have a conflict and cannot attend. I hope to be nominated for a future PRB, as I would very much like to gain the experience of this different type of Guantanamo Bay proceeding. PRBs involve detainees who are not charged with crimes, and who are asking to be released. The PRB non-criminal proceedings are different from U.S. Military Commission proceedings, which are criminal proceedings, and the question is whether the detainee is guilty of a crime. In PRBs, there is no question about criminality, just about whether the person in question is a national security threat.
Aside from PRBs, I am now scheduled to return to Guantanamo Bay, Cuba to monitor regular U.S. Military Commission hearings in the criminal case against al Nashiri from 4 to 11 March 2017, and am scheduled to travel to Ft. Meade, Maryland on Monday, 13 March 2017 for hearings in that same case – simultaneously broadcast from the same courtroom I will have monitored from live the preceding week. Mr. al Nashiri is the alleged mastermind of the 2000 suicide bomb attack on the U.S.S. Cole off the coast of Yemen that killed and wounded dozens of U.S. sailors.
Aline Fagundes (LL.M. Candidate, ’17)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
From my perch as an Indianapolis city employee working in economic development, I don’t often receive an email inquiring about the seriousness of my interest in traveling to Guantanamo Bay, Cuba.
But that’s exactly what happened on January 31, 2017.
Indiana University McKinney School of Law Professor George Edwards, an International Human Rights Law Professor of mine and who was also my third-year law school research paper faculty supervisor, emailed me with a simple question: “Are you available for a quick phone call?”
I was puzzled. I had, years ago, inquired about the law school’s then new Guantanamo Bay Military Commissions Observation Project (MCOP), but after a few exchanges with Professor Edwards and other inquiries, I realized it was simply bad timing on my part.
That said, it turns out I had been in contact with Professor Edwards on an unrelated matter, and renewed my interest in traveling to Guantanamo Bay to monitor military commissions. Professor Edwards and I discussed the project, and he impressed upon me the gravity of the undertaking.
Professor Edwards asked If I really want to travel to Guantanamo Bay to do the work; which includes lots of preparation, work once you’re there, and work once you return.
He reminded me of the importance of the work of our law school’s Program in International Human Rights Law generally, and about the importance of its Guantanamo Bay work which began more than a decade ago.
It was quite clear this wasn’t a passive trip to Cuba; this was to be taken very seriously and the hard work required of each individual would ideally result in substantive and value add contributions to the policies and procedures Professor Edwards and his partners have worked hard to create.
After a discussion with my spouse, I was officially committed.
Background and Experience
For some background, I was not deeply involved with human rights when I was a law student, and I am not a human rights attorney. Since graduating from McKinney law school in 2010, I have worked in the private sector for a global aerospace company and in the nonprofit sector for a disabilities services organization. I currently work for the City of Indianapolis managing real estate transactions and economic development projects and strategy.
In short, I did not think that I was an obvious candidate for a mission to Gitmo as part of a legal proceedings observation effort. But, it is my hope that my outside viewpoint and fresh set of eyes can be beneficial and offer a different perspective as I observe and try to contribute to the understanding of existing guidelines and procedures.
Back to the Storyline
Once I told Professor Edwards I was committing to the assignment, it was time to better understand the process and the various entities involved.
The Indiana University McKinney School of Law Program in International Human Rights Law (PIHRL), under the leadership of Professor Edwards, established the Military Commission Observation Project (MCOP). After the Pentagon Guantanamo Bay Convening Authority granted MCOP Non-Governmental Organization Status, affiliates of Indiana University McKinney became eligible to travel to Guantanamo Bay, Cuba to monitor U.S. military commissions which were established to try alleged perpetrators of war crimes. Specifically, as observers or monitors, our 5 principal responsibilities are to: (a) attend; (b) observe; (c) analyze; (d) critique; and (e) report on hearings of detainees at Gitmo.
My process began by submitting certain personal information for consideration by the MCOP Advisory Council. Once approved for advancement by the Council, my name was then submitted to Pentagon as a nomination. At this point, the Pentagon can confirm you or deny you. Fortunately, on February 9, 2017, I was “CONFIRMED” by a Pentagon representative.
To be specific; from the Pentagon:
“You have been CONFIRMED to observe the March 18-25 9/11 Week ONE military commission in-person at Guantanamo Bay, Cuba. Currently, the flight schedule is as follows:
Departing from Joint Base Andrews to Naval Station Guantanamo Bay on 18 Mar (SAT) at 1000
Departing from Naval Station Guantanamo Bay back to Joint Base Andrews on 25 Mar (SAT) at 1000.”
I then had to fill out various forms and agreements. In some ways, this has been the most complicated part so far, since each of the documents is different, and each document must be completed following very specific guidelines. Professor Edwards sent my “completed” documents back to me numerous times for me to modify my original entries to comply with Pentagon requirements, and with requirements of the Indiana University administration including IU lawyers who review some of the forms before we observers are permitted to return them to the Pentagon. The templates that I was given to follow were helpful, but it was nevertheless still a challenge.
Finally, all the documents were reviewed by Indiana University officials (including the IU Treasurer) and by the MCOP, I sent all requisite information to the Pentagon in the hopes that they would grant me full clearance.
What Hearings will I monitor?
There are three sets of hearings ongoing at Guantanamo Bay now. During the week of my scheduled monitoring (19 – 25 March 2017), hearings will be held in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. I remember where I was on September 11, 2001, and I cannot escape the impact it had on me. Pictured in this blog is Khalid Shaik Mohammed, the alleged mastermind himself, who was, among other things, waterboarded 183 times.
This is Actually Going to Happen?!?
At this time my focus has turned to the nuts and bolts of traveling from Indianapolis to Cuba. Easy right? Yeah… I plan to fly to Washington, DC then snag a Lyft and drive to a hotel near Andrews Air Force Base in Maryland, which is around a thirty-minute trip. I will stay overnight there, in anticipation of my morning flight from Andrews in a military airplane directly to Guantanamo Bay, Cuba.
While at Guantanamo Bay, among other duties, I plan to provide updates via this blog site.
I hope to offer unique insights contributions to the existing body of work relating to legal proceedings, policies, and guidelines. I see this as an occasion to provide transparency from an “on the ground” perspective. Very few have had the chance to travel to Gitmo to monitor military commission proceedings; I intend to make the most of this opportunity, for the benefit of all concerned.
This Manual is the product of the hard work performed by Professor George Edwards and other student and legal partners who have been observing at Gitmo for years. It provides many of the policies and procedures that govern the treatment of detainees and the trial and legal proceedings. It is an objective and independent document that is used by observers from other institutions and others as they form their own judgments as to whether Guantanamo Bay stakeholders are being afforded all rights and interests they are owed.
I feel it an honor to be able to observe and contribute to this important document.
I am proud to be an Indiana McKinney School of Law alum, and thankful for the opportunity provided by the MCOP and the Program in International Human Rights Law.
Brent M. Pierce, J.D. ’10
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
I travelled to Ft. Meade, MD to monitor a US Military Commission in the case of Al Nashiri, as I was representing the Military Commission Observation Project, of the Program in International Human Rights Law. The following are a few charges brought by the government: Murder in Violation of the Law of War and Attempted Murder in violation of the Law of War. al Nashiri is the alleged mastermind for the bombing of the USS Cole and other maritime attacks.
Indianapolis to Ft. Meade:
I chose to view the al Nashiri hearings at Ft. Meade during the week of 12/12/2016 and view via CCTV. I flew United Airlines from Indianapolis to Dulles Airport on Sunday, 12/11/2016, where I rented a car and drove an hour to Laurel, Maryland. I stayed at the Days Inn in Laurel, which is fifteen minutes (7 miles) from Ft. Meade. The hotel rates were lower in the area, so I did not mind a 15 minute drive, which is easy to navigate during rush hour.
Arrival to Visitors Center at Ft. Meade:
The hearings were originally scheduled to being at 9:00 AM on Monday, but I learned via email from Prof. Edwards, that the hearings would be delayed for two hours. It was recommended that I arrive at Ft. Meade’s visitors center two hours before the start time of the hearing, so I arrived at 9:00 A.M., so that I could pick up my Ft. Mead Badge to permit entry to the base each day. I went to the Ft. Meade Visitors Center to pickup my badge, I had two show two pieces of ID for them to Issue my Ft. Meade Credential and an easy process (since I had a background check completed through my the Observation Project prior to travel). The line was short at 9AM, but it should be expected for there to be longer lines at 7AM, since that is the time the Visitors Centers open and anyone visiting the base would need to obtain credential prior to entering. I drove through an inspection point, the entry point is directly behind the Visitors Center, which was an easy process. The guards request to see a form of ID with the permit that was obtained at the Visitors Center. The guards will randomly search vehicles, follow instructions of the guards and all will go smoothly. If you are driving a personal vehicle, the guards may request to see insurance paperwork with your credentials and ID. I was driving a rental guard, so I provided the proof of insurance that was purchased through the rental car agency. Federal Law requires that all vehicles have updated insurance coverage when on base.
Observation Day 1
The al Nashiri hearings were broadcast by CCTV into a classroom at Ft. Meade’s McGill training center. When you arrive at the training center, be prepared for security to do a quick wanding, then lock up your cell phone in a small locker in the classroom. It is advisable to leave other devices and laptops in your hotel room or the trunk of your vehicle.
I attended three days of hearings, and each day there was only one other person in the room. That person was responsible for ensuring all phones were stored in the lockers. One the large screen in the font of the classroom, I could see different views of the courtroom at different times. The camera seemed to be pointed at the person who was speaking at the time, whether it was Judge Spath (the military judge), the prosecution or defense lawyers, or the Defendant al Nashiri himself.
At the beginning of the Day 1 hearings, Judge Spath advised al Nashiri that he had the right to be present for all hearings, if he chose not to attend it would not have impact on decision-making regarding rulings to motions. al Nashiri nodded and waved to the judge suggesting that he understood these rights. al Nashiri also waived his right to have the court stop proceedings for specified times throughout the day for prayers.
Whenever I saw al Nashiri, he was sitting in a chair at the far end of the defense table, facing the court. He wore a white flowing shirt, but I was told later that he would wear the suit jacket of his interpreter, who was seated next to him throughout the hearing. Al Nashiri’s hands and legs did not appear to be cuffed, and I was told later that he was not cuffed. I could not see guards on the screen, though I was told that at all times there were at least four or five guards within several feet of al Nashiri at all times, though the guards were not visible to me. As mentioned, an interpreter was visible sitting beside al Nashiri and both wore headsets during the proceedings.
The defense called former assistant deputy of the Convening Authority. Edward Sherran to testify. The questioning by the defense focused on his role as assistant deputy and those of the advisors within the Convening Authority. The defense also called Lt. Col. Lewis, again to offer insight to actions of the Convening Authority at the time Gill was the only advisor that was qualified to work on the Al Nashiri case.
Day 2 focused on a host of motions. The first motion was by the defense, which was to compel witnesses to support the defense claim of the Convening Authority’s unlawful influence. The defense would like to compel three former Convening Authority personnel to testify – Gill, Tull and former deputy Quinn. The defense claims testimony is necessary, as the government continues to not respond with items requested in discovery motions.
The hearings then moved towards what is referenced as the “Kuwaiti Files”. The defense requests intelligence relating to the drone strikes of Al Fahdi, as there is knowledge that there was a connection between Al Fahdi and al Nashiri. The defense argued that the fact the Department of the Treasury placed Al Fahdi on a watch list for his role in the Linberg attack is evidence that there is a connection between al Nashiri and Al Fahdi, and that the evidence is relevant and necessary to a robust, effect defense of al Nashiri. The defense claims that only 20 pages has been handed over by the government, that this is insufficient and that definitely more intelligence must be available, since the U.S. would not have killed Al Fahdi in a drone strike based on 20 pages of documents. The defense argued that the motion to compel government agencies to provide evidence is necessary, as the agencies have not been forthcoming.
The court discussed that the al Nashiri case has been in the discovery phase for five years, that it is necessary to move forward in a timely manner. The remainder of the Tuesday hearing focused on the defense arguing that there would be a violation of Brady and Giglio rulings, which could lead the defense to request a mistrial. Judge Spath stated the Brady and Giglio arguments are available during the appeal process, not during the discovery phase. The defense then argued that the court should still grant the motion to compel, to ensure that a record is established and that a record is necessary for the appeals court to consider post-trial.
After a lunch recess, the afternoon hearings focused on “505” matters, which meant that there were classified hearings that were closed to the public. It became clear that Friday hearings would also be classified and closed to the public.
On Tuesday, at lunch, I found the Ft. Meade food court, that offered several food options, including – Burger King, Boston Market, Philly Steaks, and Starbucks.
Day 3, Wednesday morning hearings, were again open to the public and the Afternoon hearings were closed to cover classified matters.
In the morning, the defense raised additional motions to compel the CIA to provide information, especially relating to Black Site interrogations. The CIA claimed that tapes, containing footage of al Nashiri being exposed to enhanced interrogation techniques and these tapes were important for an adequate defense. The defense cited four other witnesses that should also be called to testify; these witnesses would provide information to the black site interrogations. One witness identified was Mitchell, who recently released a book relating to the Black Site operations.
The morning hearing was shorter than the first two days, but it was full of defense arguments as to why government agencies should be compelled to provide evidence, while the prosecution arguments that evidence relevant to the case has always been provided.
It was fascinating to observe arguments presented by both the defense and prosecution, especially in a case that has been in the discovery phase for five years. I was able to understand the motions in the proceedings, as I reviewed the case summary that is available on the Observation Project’s website and the government web site, which provides transcripts and motion history/rulings. I learned a great deal about the matter regarding enhanced interrogation techniques, which is relevant to the defense of al Nashiri and I am curious as to how the court will approach this matter. Will the court compel a witness, like Mitchell, to testify?
I look forward to the opportunity of attending more hearings in the future, as being a student in the Masters of Jurisprudence program, it was relatively easy to understand the flow of the hearings and fascinating to how a court of law is operating in Guantanamo.
Heather Wilhelmus, MJ Student,
NGO Monitor, U.S. Military Commission Observation Project (MCOP)