Month: March 2017

U.S.-Educated Detainee Asks U.S. Board To Release Him From Guantanamo

 

GTMO -- sarifulla paracha -- at age 67 -- with smile

Mr. Parahca two years ago at age 67

This morning, in a dark, locked, secure Pentagon conference room, I attended a hearing in which Guantanamo’s oldest detainee, 69-year-old Mr. Saifullah Paracha, asked the U.S. government to set him free. I was joined by Judge Aline Fagundes, who is a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, and several other carefully screened civilian monitors.

 

The hearing was held pursuant to a 2011 Executive Order issued by President Barack Obama that provides detainees periodic reviews to determine if the detainees are a threat to U.S. national security. If the Periodic Review Board (PRB) finds that the detainee is a threat, he remains detained. If he is found not to be a threat, he may be repatriated to his home country or resettled in a third country.

Mr. Paracha argued for his release. The government alleged that Mr. Paracha was a “businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners”.

The PRB is expected to render a decision in Mr. Paracha’s case in about a month.

Today’s hearing – Who? Where?

Today at the Pentagon we had 6 observers from non-governmental organizations (NGOs) and the media. Two of us were from the Guantanamo Bay project I founded at Indiana University McKinney School of Law (GitmoObserver.com). Our project sponsors Indiana Affiliates to travel to hearings at Guantanamo, the Pentagon, and Ft. Meade, Maryland.

We were met by 2 military and one civilian escort in the Pentagon’s Visitor Center, and escorted to a conference room where we talked amongst ourselves and listened to the Military History Channel, waiting for the hearing to commence.

Others present for the hearing included members of the “Board” itself that conducts the PRBs, and that consisted 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. These individuals were not with us at the Pentagon, but were at a separate, undisclosed location in the DC area. It is believed that also present for the hearing, also at one or more undisclosed locations, were the Legal Advisor to the Board, the Case Administrator, a Hearing Clerk, and a Security Officer.

The detainee – Mr. Paracha – was present, by close circuit TV.

Mr. Paracha was joined by a “personal representative”, who is a military official dressed in uniform, who has been spending time with the Mr. Paracha and helping him present his case. The personal representative is not a lawyer or other sort of legal professional, and communications between Mr. Paracha and his personal representative are not protected by attorney client or similar privilege.

 The hearing begins

 The hearing was scheduled to begin at 9:00 a.m., but what appears to have been a technical glitch resulted in a delay. Some of us were concerned, since at the last PRB we attended the audio feed was great from Guantanamo Bay but there was no visual feed so the screen was blank. Today’s visual feed was blurry, but at least we could see the Guantanamo hearing room and its occupants, unlike at the last PRB.

GTMO -- sarifulla paracha -- at age 62

Mr. Paracha

At 9:14 a.m., a picture appeared on the almost ceiling-height screen.

 

In our dimly lit conference room, we saw on the screen the dimly lit Guantanamo room where the detainee sat at the end of a rectangular table, facing the camera, with a stack of papers in front of him. They were in one of Guantanamo’s trailer-like, austere, rooms that had plain walls, floor, and table.

In contrast to the bland surroundings, the hearing room had high back office chairs, that looked like high-quality leather chairs one might see in a law associate’s office.  Aside from air conditioner units, seemingly from the 80s, hanging window-height on the wall behind Mr. Paracha’s head, there was nothing else on the walls.

On the table in front of Mr. Paracha’s seat was a table-top name plate that said in large, bold, all capital letters “DETAINEE”.

Mr. Paracha wore a white top, with somewhat short sleeves that appeared bunched at the elbows. His attire was clearly not a detainee “uniform”. Through the blur it appeared as though he had a white beard and a bald head.

The personal representative sat at the table on Mr. Paracha’s right, perpendicular to him, and not directly next to him.

The hearing began with a male, off-camera voice announcing that the hearing was commencing, mentioning some hearing rules, identifying who was present – boiler point.

Next came a female voice, again off camera. This voice read the Government’s Unclassified Statement, as follows:

Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them. 

Mr. Paracha appeared to be paying close attention to whichever person happened to be speaking at the time – one of the off-camera narrators or his personal representative. The hearing was conducted in English, as a voice in the background stated that Mr. Paracha had waived his right to an interpretation of the hearing in another language of his choice.

While the personal representative spoke, Mr. Paracha would from time to time glance at her. At other times he appeared focused on the papers in front of him, appearing to follow along in English, flipping pages as the script was being read. At times he would place his left open palm firmly on the stack of papers, as though holding them down from a breeze.

The hearing ended at 9:19 — just 5 minutes after it began. This was the shortest PRB I have attended. They typically begin at 9:00 and run no longer than 30 minutes.

No private counsel of Mr. Parach attended today’s PRB, and no statement was read by any private counsel for Mr. Paracha’s today. That was one reason that the PRB was shorter than usual. It is unclear why private counsel did not appear today.  A statement by the private counsel Mr. David H. Remes had been posted on the Perriodic Review Board website here. But, that statement was the same statement submitted under Mr. Remes for Mr. Paracha’s file review PRB in 2016. That statement ended with this sentence:

For these reasons, I respectfully encourage the Board to convene a full review and hope that it will conclude that Mr. Paracha’s continued detention is unwarranted.

David H. Remes

Approved for Public Release
UNCLASSIFIED

That statement asked the Board to convene a “full review”, and today’s hearing was the “full review” requested. If Mr. Remes submitted a private counsel statement for today’s hearing, that statement was not posted on the PRB website (as of tonight — 8:55 p.m., Tuesday, 21 March 2017), and was not read at today’s hearing. What was posted online under Mr. Remese name was from last year.

Mr. Paracha’s background

Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.

Uzair Paracha

Uzair Paracha, Mr. Paraha’s son, is serving a 30 year sentence in a U.S. federal prison on terrorism-related convitions.

The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.

 

Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.

Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.

The hearing – a Periodic Review Board – PRB

Today’s hearing is called a Periodic Review Board (PRB),  and was pursuant to a 7 March 2011 Executive Order (number 13567) which has required most detainees to have a “periodic review” of their detention status.

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.

Paracha’s 3 PRB hearings — summary

Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.

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 the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.

  • File Review. Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:

MEMORANDUM FOR THE RECORD

SUBJECT: Periodic Review Board File Review – Saifullah Abdullah Paracha (PK-I 094)

On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) 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 7 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 in accordance with section 3(c) of E.O. 13567.

  • Full Review. It was Mr. Paracha’s full review that was held today. 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 repatriate him to Pakistan or send him to a 3rd country – outside the U.S.

 The Board will likely publish a decision on this full review in a month or so.

More on this hearing?

The initial part of the PRB was unclassified, and that is the portion of the PRB that Judge Fagundes, the other monitors and I observed. During that portion of the PRB, we were sitting in a secure Pentagon viewing room watching Mr. Paracha and his personal representative live from Guantanamo Bay.

PRBs v. Military Commissions

Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.

PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.

Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.

 

edwards and fagundes -- Pentagon -- 21 March 2017

Professor George Edwards & Judge Aline Fagundes at the Pentagon before the Periodic Review Board (PRB) held on 21 Marh 2017

Judge Fagundes’ observations

 

Judge Fagundes is the first student from Indiana University McKinney School of Law to participate in all three types of hearings our Indiana Guantanamo Bay Military Commission Observation Project / Gitmo Observer may send affiliates to observe:

  • She traveled to Guantanamo Bay, Cuba to monitor U.S. Military Commissions live, in the courtroom.
  • She traveled to Ft. Meade, Maryland, to monitor U.S. Military Commissions via a secure videolink from Guantanamo.
  • She traveled to the Pentagon to monitor Guantanamo Bay Periodic Review Board (PRB).

Judge Fagundes is researching and writing a paper that focuses on international law requirements for transparency in the U.S. Military Commission system. She has described some of her experiences on this blog – www.GitmoObserver.com.

George Edwards

Founder, Periodic Review Board (PRB) Project

Guantanamo Bay, Cuba U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law (PIHRL)

Indiana University McKinney School of Law

_______

Traveling to the Pentagon to hear Guantanamo’s Oldest Detainee Seek Release

 

GTMO -- sarifulla paracha -- at age 67 -- with smile

Mr. Saifullah Paracha

On Tuesday Guantanamo’s oldest detainee, Mr. Saifullah Paracha, will likely plead at a hearing that he is not a threat to U.S. national security. He will ask to be repatriated to his homeland of Pakistan or resettled in a 3rd country.

 

During the parole-like hearing, Mr. Paracha will be located in a small, bare trailer at Guantanamo. The proceeding will be videocast live to a small Pentagon room where I plan to watch it with a handful of other carefully screened observers, including two of my Indiana law students (Judge Aline Fagundes and another Master of Laws student).

Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.

Uzair Paracha

Mr. Uzair Paracha, Mr. Paracha’s son, who is serving a 40 year U.S. terrorism sentence

The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.

 

Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.

Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.

The hearing – a Periodic Review Board – PRB

This hearing at which Mr. Paracha  will argue is called a Periodic Review Board (PRB),  and will be conducted pursuant to a 7 March 2011 Executive Order (number 13567) which has required most detainees to have a “periodic review” of their detention status.

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.

Paracha’s 3 PRB hearings

Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.

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 the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.

  • File Review. Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:

MEMORANDUM FOR THE RECORD

SUBJECT: Periodic Review Board File Review – Saifullah Abdullah Paracha (PK-I 094)

On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) 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 7 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 in accordance with section 3(c) of E.O. 13567.

  • Full Review. It is Paracha’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 repatriate him to Pakistan or send him to a 3rd country – outside the U.S.

 The Board will likely publish a decision on this full review in a month or so.

Below is more information about what Tuesday’s full PRB may be like.

 

podium

Judge Aline Fagundes, a Master of Laws (LL.M. student at Indiana) is expected to attend Mr. Paracha’s PRB at the Pentagon. She was at the Pentagon earlier this month for a different PRB.

What will Paracha’s PRB be like on Tuesday?

 

  • Who will be present?

 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 third PRB to be held under the Trump Administration.

Others present for the hearing will include members of the “Board” itself that conducts the PRBs, and that consisted 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. 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.

Who will make statements made at the PRB?

1.  First, U.S. military official will read an “Unclassified Statement”. The statement for Tuesday is already posted online, and is as follows:

Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them. 

2.  Mr. Paracha’s Pentagon-appointed personal representative may make a statement. The text of this statement has not yet been posted online.

3.  Mr. Paracha’s private counsel may make a statement. The text of this statement has not yet been posted online.

 More on this hearing?

The initial part of the PRB will be unclassified, and that is the portion of the PRB my students and 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.

It is possible that the Pentagon will post a statement by Mr. Paracha and the other statements mentioned above (statement by his Pentagon-appointed personal representative and by his private counsel). If these are posted on the PRB website, I will plan to post them on this blog later.

PRBs v. Military Commissions

Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.

PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.

Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.

Conclusion

So far as we can tell, Paracha’s PRB is still scheduled to go forward on Tuesday. That is, the Pentagon has not notified us that it will not go forward. If it does go forward, it seems likely that Mr. Paracha will attend, as there has been no suggestion that he will miss his first full review.

Please watch this space for an update post-PRB.

George Edwards

Founder, Periodic Review Board (PRB) Project

Guantanamo Bay, Cuba U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law (PIHRL)

Indiana University McKinney School of Law

_______

 

Know Before You Go To Guantanamo Bay Guide – Updated

Today we posted the newest version of our Know Before You Go To Guantanamo Bay GuideIt contains 90 pages of information to help you prepare for a trip to this remote Cuban military outpost, including information about the U.S. war crimes trials being held there.

Want to learn intricacies on gaining permission to travel to Guantanamo? What about information about Guantanamo Bay accommodations, restaurants, recreation, sites?

The Guide contains up-to-date information, including about the U.S. Naval Base’s newest restaurant, called Tropical Cabana, that is “Inspired by Cuba, Jamaica & the Philippines in a Relaxed Island Atmosphere”.

It also now contains information / photos of artwork done by one of the courtroom guards – animal figures made of glass collected from Glass Beach.

Safe travels!

For a copy of the Know Before You Go to Guantanamo Bay Guide click this link. Or access the Guide below:

Indiana Law School Affiliates Travel to Monitor Guantanamo Bay War Crimes Hearings

img_7049

Mr. al Nashiri

For two weeks this month, Guantanamo Bay war crimes hearings have been held in the case against Mr. Abd al Rahim al Nashiri, who is alleged to have masterminded the 2000 bombing of the U.S.S. Cole off the coast of Yemen, killing 17 U.S. sailors and wounding dozens more.

Representatives of Indiana University McKinney School of Law have monitored these hearings, live in the Guantanamo Bay courtroom, and remotely by CCTV at a secure facility in Ft. Meade, Maryland.

In addition to monitoring military commissions, Indiana affiliates also monitor Guantanamo Bay Periodic Review Board hearings (PRBs), that occur live at Guantanamo Bay but are broadcast live by CCTV into a secure room at the Pentagon. The PRBs are separate and distinct from the military commissions.

All Indiana monitors carry out the 5-part mission of Indiana McKinney’s Military Commission Observation Project, to: (a) attend; (c) observer; (c) analyze; (d) critique; and (e) report on the substance and the form of the legal proceedings.

All Indiana monitors contribute to research and writing of the Guantanamo Bay Fair Trial Manual, which is an independent and objective guide on rights and interests of all Guantanamo Bay stakeholders, and not just the rights and interests of the defendants. The Manual examines rights and interests of the prosecution, the victims and victims’ families, the media, the public, detainees who are not charged, witnesses, the military detention center guards, and others.

Indiana monitors also contribute to the Know Before You Go to Guantanamo Bay Guide guide, which offers travelers to Guantanamo insights into what to expect there. Also, Indiana monitors contribute to the blog, resource database, and other components of our Gitmo Observer website – www.GitmoObserver.com (and our twitter feed — @GitmoObserver).

Indiana monitors who travel to Ft. Meade, the Pentagon and Guantanamo Bay carry out their responsibilities independently and objectively.

Indiana Observers at Guantanamo

img_9159

Judge Fagundes at Andrews Air Force Base in 2016 on her first of 2 trips to Guantanamo Bay.

On Saturday, 4 March 2017, Judge Aline Fagundes, who is a Master of Laws (LL.M.) student at Indiana, flew on a U.S. military flight from Andrews Air Force Base to Guantanamo Bay, Cuba to monitor a week of al Nashiri hearings. At Guantanamo Bay, she witnessed the proceedings while seated in Guantanamo’s courtroom, in a gallery behind a double-paned glass wall that separated her and other observers from the lawyers, the judge, and the defendant. This was the second trip to Guantanamo Bay for Judge Fagundes, who traveled there in 2016 to monitor hearings in the 9/11 case against the 5 alleged masterminds of the attacks on the World Trade Center and Pentagon.

 

DSC05378

Mr. Tex Boonjue, 2nd from left, with other human rights monitors at Andrews on Saturday, 11 March 2017, waiting for their flight to Guantanamo.

A week after she arrived, another military flight from Andrews touched down at Guantanamo, carrying Mr. Tex Boonjue, a 3rd year Indiana J.D. student. Mr. Boonjue and Judge Fagundes met briefly at the Guantanamo Air Terminal, where the baton was passed for the second week this month of on-site monitoring.  This interchange at Guantanamo marked the first time since 2003 – when Indiana McKinney affiliates fist became involved with Guantanamo – that Indiana has had 2 representatives on the ground at Guantanamo at the same time. On of the dozens of trips, Indiana has only had one representative on the island at a time.

The plane that carried Mr. Boonjue to Guantanamo picked up Judge Fagundes and brought her back to Andrews. Judge Fagundes spent the weekend in the DC area, then traveled to Ft. Meade, Maryland to witness, via CCTV, continued hearings in the al Nashiri case.

 

tex and aline at gtmo -- 11 March 2017

Mr. Tex Boonjue & Judge Aline Fagundes meet at the Guantanamo Bay Air Terminal, 11 March 2017. Fagundes was boarding the plane that had just brought Boonjue from Andrews Air Force Base

Both Mr. Boonjue and Judge Fagundes have published multiple blog entries on www.GitmoObserver.com. You can read about some of Judge Fagundes’ experiences here and about some of Mr. Boonjue’s experiences here.

Indiana Observers at Ft. Meade

Early Monday morning, 13 March 2017, Judge Fagundes arrived at the Ft. Meade Army Base in Maryland, where the Guantanamo Bay hearings are broadcast via satellite to a secure viewing room.

Upon her pre-dawn arrival, she stopped at the Ft. Meade Visitors Center, where she was able to collect a badge that granted her access to the base. She traveled about a mile onto the base to the McGill Training Center, where the Office of Military Commissions has organized a live feed from the Guantanamo Bay courtroom.

At Ft. Meade’s McGill facility, Judge Fagundes saw the Guantanamo Bay courtroom from a different perspective. While at Guantanamo, she witnessed the proceedings from the gallery, which is at the back of the courtroom, offering a view of the entire courtroom at all times. She was able to see the judge, the prosecution, the defense counsel, the defendant, the security officers in military uniform, and court staff. She could also see occupants of the viewing gallery, including other observers, media, Guantanamo Base residents who are able to sit in when seats are available, and victims and victims’ families (VFMs) (except when VFMs choose to close a curtain that separates the VFM section of the gallery from others in the gallery).

At Ft. Meade, she could only see what was broadcast from Cuba, through a courtroom camera that would point at the person currently speaking. When the judge spoke, a camera pointed at him and that was broadcast live. When the prosecutor spoke, a different camera pointed at him, and that was broadcast live. Cameras pointed at the defense counsel, the defendant, and the witnesses would come alive and broadcast when those people spoke.

When viewing proceedings at Ft. Meade, it is impossible get a clear sense of the scope of the proceedings, or the courtroom / gallery dynamics, as one can do when in they are observing live at Guantanamo.

At Ft. Meade, observers cannot witness any visual or oral reactions by VFMs, the defendant, or anyone else, unless a camera pointing towards them is activated. These cameras are only activated when an actual participant in the courtroom is speaking officially. The cameras would not necessarily point towards a defendant who was speaking out of turn, a VFM who might be reacting, or others on site who could clearly be heard / seen by any observer physically in the courtroom gallery.

edwards and fagundes -- ft meade - helicopter -- 11 March 2017

Fagundes & Edwards at the Ft. Meade Museum

At Ft. Meade, Judge Fagundes was met by Professor George Edwards, who is the founding faculty director of Indiana’s Guantanamo project.

 

Judge Fagundes and Professor Edwards viewed the hearings at Ft. Meade, while Mr. Boonjue viewed the hearings while in gallery in the back of the Guantanamo Bay Courtroom.

 Upcoming Indiana participants at Guantanamo Bay and Ft. Meade

bp-pic

Mr. Brent Pierce

On Saturday, 18 March, Mr. Brent Pierce, an Indiana McKinney J.D. graduate, is scheduled to travel to Guantanamo Bay. He is likely to be on the ground there for a few minutes with Mr. Boonjue, who is due to return to Andrews on the plane that carries Mr. Pierce from Andrews.

 

Mr. Pierce is scheduled to monitor the case against the five alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon.  That case has five defendants, including Khalid Shaik Mohammad. These five defendants, like Mr. al Nashiri in the U.S.S. Cole case, face the death penalty.

On Monday the 20th, when Mr. Pierce is in the Guantanamo gallery for the 9/11 hearings, Professor Edwards is scheduled to be back at Ft. Meade with another Indiana McKinney LL.M. student, who will join in monitoring the 9/11 case via CCTV.

You can read Mr. Pierce’s initial blog post here.

Substance of the al Nashiri Hearings

USS Cole Map of Ship & Devastation

A Cole bombing news article schematic. This schematic was not proffered as evidence. Photos of the ship were proffered.

The testimony on the Monday morning that Professor Edwards and Judge Fagundes were at Ft. Meade (and Mr. Boonjue was in the Guantanamo courtroom gallery) focused on pre-admitting into evidence items that the FBI recovered from the U.S.S. Cole in the days after the ship was attacked. These items included photographs of the ship, harbor where the ship was attacked, the road leading to the harbor, and the beach front where debris from the attack was washed ashore. Among the debris on the shore depicted in the photographic evidence was an uninflated Cole lifeboat and a Cole baseball cap. Also

 

A baseball cap like the one in the photograph the prosecution entered as evidence in the case against al Nashiri. A similar cap was found on the beach near the USS Cole bomb site.

admitted into evidence were fiberglass fragments that are alleged to be part of the suicide boat that attacked the Cole, debris found on Cole’s deck following the bombing, photographs of the gaping hole in the side of the Cole where the attack boat hit, and photographs of devastation inside the attacked ship.

At Ft. Meade and in the Guantanamo Gallery, observers could see some of the exhibits, including those that were projected onto the screen by a device like an overhead projector.  When exhibits were presented, at Guantanamo, observers could see and hear reactions / non-reactions by the defendant, VFMs, media, other observers, and others in the courtroom. At Ft. Meade, observers could see and hear only what came through the television monitor / speakers.

khalid-shaik-mohammad

Khalid Shaik Mohammed

Substance of the upcoming 9/11 hearings

It is unclear what will be on the agenda for the 9/11 hearings. The military judge in that case has released a docketing order, and participants know the list of pre-trial motions scheduled. But experience has demonstrated that not all motions on the order are necessarily heard during a hearing week, and at times matters not listed on the order are raised.

Periodic Review Hearings (PRB)

On Tuesday, 21 March 2017, Professor Edwards, Judge Fagundes, and another LL.M. student are scheduled to travel to the Pentagon to monitor the PRB hearing of Saifullah Paracha, from Pakistan, who at 69 years of age is the oldest detainee currently being held at Guantanamo Bay. He is alleged to have associated with members of al Qaida.

GTMO -- sarifulla paracha -- at age 67 -- with smile

Mr. Saifullah Paracha

PRBs and military commissions differ.

 

Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.

PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.

 

aldarbi

Mr. al Darbi

9/11 Hearings for the last week of March 2017; al Darbi hearings for the first week of April.

 

During the final week of March, Professor Edwards is scheduled to travel to Guantanamo Bay for the 2nd week of hearings in the 9/11 case. Mr. Brent Pierce and Professor Edwards will likely meet briefly at the Guantanamo Bay airport, to pass the baton for the final week of March hearings.

Currently, hearings are scheduled at Guantanamo Bay for the first week of April in the case of Mr. al Darbi, who is alleged to have conspired with Mr. al Nashiri in planning a failed attack on the U.S.S. Sullivan the year before the U.S.S. Cole bombing. Professor Edwards is scheduled to return to Guantanamo Bay for this hearings. Rumor has it that the April al Darbi hearings will be cancelled. Another round of al Darbi hearings is scheduled for May 2017.

joanna-leblanc-graduation-photo

Ms. Johanna Leblanc

Military commission hearings in the case against Mr. Hadi al Iraqi (a/k/a/ Nashwan al Tamir), an alleged high level member of al Qaida Iraq and liaison with the Taliban, scheduled for earlier in March 2017, were cancelled. The Indiana McKinney monitor who was scheduled to travel to Guantanamo Bay for the Hadi hearings — Ms. Johanna Leblanc — will be scheduled for a subsequent monitoring mission. Ms. Leblanc’s initial blog post on her cancelled Hadi al iraqi hearing mission can be found on www.GitmoObserver.com  here.

 

Conclusion

Though each Indiana monitor has his / her personal perspective and opinions, Indiana monitors act independently and objectively in researching and drafting our Guantanamo Bay Fair Trial Manual and other materials that examine rights and interests of Guantanamo Bay stakeholders. The materials that Indiana has prepared are being used by many who have an interest in what happens (or what does not happen) at Guantanamo Bay. Though persons traveling to Guantanamo may have a particular interest in our Know Before You Go to Guantanamo Bay Guide, there is strong interest in our substantive publications as well.

Indiana monitors contribute to the transparency that the Pentagon has stated that it seeks with the military commissions. Indiana monitors also benefit, whether they travel to Ft. Meade, to Guantanamo Bay, or both.

If you are an Indiana McKinney affiliate – student, faculty, staff or graduate – please check our law school web page here for information on how you might participation in our Guantanamo project.

Anyone interested in our work can check our blog / website / resource database at www.GitmoObserver.com.

George Edwards

Founding Faculty Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

I’m Scheduled To Fly To Guantanamo Bay Today

Showtime – Andrews Air Force Base to Guantanamo Bay

I am scheduled to travel to Guantanamo Bay today to monitor hearings in the case of al Nashiri, who is the alleged mastermind of the 2000 U.S.S. Cole bombing off the coast of Yemen that killed and wounded dozens of U.S. sailors. I am representing the Military Commission Observation Project of Indiana University McKinney School of Law, where I am a student. I am looking forward to carrying out my observer / monitor responsibilities, which include to attend, observe, analyze, critique and report on the military commissions that have charged several men with perpetrating war crimes.

DSC05378.JPG

Arrival at Andrews Air Force Base

Most of the military commission flights to Guantanamo Bay depart from Andrews Air Force Base (AAFB).

Last night I stayed at a nearby Holiday Inn, and took a (taxi?) to the Andrews Visitor Center at 7:00 AM, where I met two other NGO representatives — Carol and Michelle – who were scheduled to join me on the trip to Guantanamo.

A government representative (Tony) picked us up around 7:30 AM and drove us to the Andrews terminal, where we met the rest of the NGO reps.

After we passed through security and I obtained my boarding pass, I handed all the NGO reps who were present a copy of the Know Before You Go To Guantanamo guide and the Guantanamo Bay Fair Trial Manual excerpts. These documents were produced by the Indiana McKinney Military Commission Observation Project (Gitmo Observer). I received many thanks for providing such helpful documents.

While waiting to board, we saw Vice President Mike Pence board what looked like Air Force One, but was actually Air Force Two. There were several security personnel around him, including secret service agents and military. An hour after Pence departed, we boarded a bus that took us to the commercial plane (Atlas Air) bound for Guantanamo.

DSC05375.JPG

I am now on the plane about an hour away from arrival. I am looking forward for what’s in store to come.

 

Tex Boonjue, J.D. Candidate

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

I’m Flying to Guantanamo Bay, Cuba tomorrow for U.S. Military Commission Hearings

I’m Flying to Guantanamo Bay, Cuba tomorrow for U.S. Military Commission Hearings

When I enrolled at Indiana University McKinney School of Law almost 3 years ago, I learned that the school had a program that focused on Guantanamo Bay, Cuba. After my first year, I participated in that program – the Military Commissions Observation Project (MCOP) — and I observed a pre-trial hearing in the case against Hadi al Iraqi, who is an alleged high level al Qaeda member who and liaison with the Taliban. I viewed the Hadi hearing at the Ft. Meade, Maryland army base via secure satellite transmission live from Guantanamo Bay. This was my first time observing a military commission, not to mention a Guantanamo Bay hearing of such a magnitude. Also I did legal research for the Guantanamo Bay Fair Trial Manual, which observers and others are using to help them determine whether rights are afforded to individuals and groups related to Guantanamo.

Tomorrow (Saturday, 11 March 2017) I am scheduled to fly from Andrews Air Force Base to Guantanamo Bay, where I will be monitoring the military commission case against al Nashiri, who is alleged to have masterminded the 2000 suicide bombing of the U.S.S. Cole, off the coast of Yemen, killing 17 U.S. sailors and wounding dozens more. Rather than view the hearings via CCTV at a military base in Maryland, I am expecting to view the hearings while sitting in the galley of the actual courtroom at Guantanamo Bay. I am representing the Indiana McKinney School of Law’s MCOP (also known as the Gitmo Observer). Hearings are set to begin Monday, 13 March 2017.

Travel to DC – Friday, 10 March 2017

10:00 – 11:30:  I woke up today feeling slightly better than I felt yesterday. I had hoped to fully recover from whatever it is that I have before departing for DC and beginning my mission to Guantanamo Bay. Nonetheless, I am still fully functional and very excited for what’s set to come these next 8 days.

DSC05362.JPG

12:00 – 16:00: The hour and a half flight from Indianapolis to DC was as smooth as ever. Passing through security was a breeze. I won the armrest war. My bags were one of the first few down the conveyor belt.

16:00 – 18:30: After learning that my Verizon phone would not work in Guantanamo Bay and that I would need my own SIM card to communicate with the MCOP director while there, I searched for the nearest T-Mobile store on my phone and hopped onto the DC metro green line headed towards Gallery Place Station (in an area known as Chinatown). I ran into some slight issues at the T-Mobile store when trying to obtain a pre-paid SIM card. The employee must have been new because he said that the $50, 2GB talk/text, pre-paid SIM card that I had sought use in Guantanamo Bay did not exist. However, after some back and forth, a few calls to customer service, and a brief chat with his coworkers, we discovered that there was indeed a $50 pre-paid SIM card available for purchase ($66 total, $10 for the SIM + Tax). Our Project Director, Professor George Edwards, published in Know Before You Go To Guantanamo Bay that T-Mobile began operating at Guantanamo last summer. In one of my blog posts from Guantanamo I will report on how well the T-Mobile sim card works.

19:30 – 22:00: After obtaining the SIM card, I hopped back onto the green line and headed towards Branch Avenue. I am comfortably familiar with this line as I had taken it practically every day during my 2015 summer law internship with the Navy JAG Corp, when I worked at the Washington Navy Yard.

I got to my hotel – the Holiday Inn near Andrews Air Force Base – checked into my room, and unloaded my luggage. I then read additional parts of the Know Before You Go To Guantanamo guide while I had dinner (which I had brought with me from Indianapolis). Afterwards, I introduced myself via email to the 9 other NGO representatives who will be observing the hearings, and attached a copy of the Guantanamo Bay Fair Trial Manual, and the Know Before You Go To Guantanamo guide so that they could reference these materials before, during and after the hearings.

I learned that one of the observers scheduled to attend will not join us on the flight from Andrews tomorrow, which means that there will be at most 8 other NGO representatives will join me at the hearings.

DSC05360.JPG

Reading the “Know Before You Go” Guide in my hotel room the night before departure

22:00 – 22:30.  I believe this trip to Guantanamo Bay will be a unique, informative and rewarding experience. I anticipate having much more to write about once set foot on the Guantanamo Bay Naval Station.

Tex Boonjue, J.D. Candidate

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

I’m heading back to Guantanamo Bay to Observe hearings

I am at Andrews Air Force Base now waiting to board a military flight to take me to Guantanamo Bay, Cuba to monitor U.S. Military Commissions in the case against al Nashiri, who is alleged to have masterminded the 2000 suicide bombing of the U.S.S. Cole off the coast of Yemen killing 17 U.S. sailors and wounding dozens more.

For the second time, I was nominated to represent the MCOP – the Military Commission Observation Project of the Indiana University McKinney School of Law’s Program in International Human Rights Law.

My first trip to Guantanamo Bay was in October of 2016 and my experience can be found in this www.GitmoObserver.com blog post, clicking here.  There was also a 4-page article by Larissa Roso published in the Brazilian newspaper Zero Hora (see photo in this blog).

fullsizerender-jpg

The defendants

As mentioned, this time I will attend a pre-trial hearing in the case against al Nashiri, who faces the death penalty for his alleged participation in the suicide attack against the USS Cole .

640px-uss_cole_ddg-67_departs

USS Cole being towed

From public sources I have gathered the following information about al Nashiri:

Abd al-Rahim al-Nashiri. He was arrested in Dubai in 2002, was held for 4 years in CIA black sites and was taken to Guantanamo Bay Detention Camp. He was first charged at Guantanamo in 2008. The charges were dropped in February 2009 and reinstated in 2011, and now, six years later, the proceeding remains at the pre-trial stage.

al Nashiri

On my first visit, I attended the pre-trial hearings in the case against Khalid Shaik Mohammad and 4 other allged masterminds of the 9/11 attack on the World Trade Center and the Pentagon. It will be interesting to compare the 9/11 hearings to what I expect to witness at the al Nashiri hearings.

Why go to Guantanamo again?

I am a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, and my second trip to Guantanamo Bay is part of my in-field research about transparency under the Military Commissions. My research is being supervised by , Professor George Edwards, who is Founding Director of  Indiana’s Military  Commission Observation Project.

I remember, as a first-islander (this is how people in Guantanamo Bay call those who are on the island for the first time), I felt like not even blinking my eyes, afraid of missing any detail from which I could learn something.

This time, of course, it will not be different. My eyes will be wide open. My initial focus was to fulfill goals of our MCOP project – to attend, observe, analyze, critique and report on the Military Commissions. I did that on my first visit, and I will do that on this visit as well.

But this time  my attention will be focused specifically on transparency.

The whole process of my involvement, since I was nominated to be an observer, represents a rich source for research on Military Commission transparency for NGOs. The several steps to comply with the requirements presented by the Pentagon, the limited information NGOs can access, the location of the hearings, the restrictions and overwhelming rules while in the island, the fact that rules seem constantly to change for NGOs (with some rules being different now than they were when I went to Guantanamo in October), the limited areas at Guantanamo where NGOs can circulate, visit or take pictures – those are just a few examples of things that I am thinking about in the context of transparency. Of course, the cases before the Military Commissions are related to national security, and deserve special care. This research will try to understand what international and U.S. domestic law require regarding transparency of the U.S. Military Commissions for NGOs, recognizing that a balance must take into account national security as well as NGO exposure and access to information. Do the Military Commissions comply with international and U.S. law regarding transparency when it comes to NGO observers?

At Andrews Air Force Base

I am now at the Joint Base Andrews, and the sun is about to rise on this chilly Sunday. Our chartered flight – a Delta Airlines – is scheduled to depart at 8am. The NGOs were scheduled to arrive arrive at Andrews at 5 a.m., 3 hours in advance, to check-in for the flight.

img_3178

At this time there are 10 NGOs representatives from different organizations scheduled to travel with us. On my first trip, we had 12 NGOs observers. Each authorized organization can indicate and send only one representative at the time, even if there are places available. So, if we in fact only have 10, then there are 3 or 4 empty seats that could have been filled by NGO representatives. I know that there are many observers from Indiana and other organizations available to fill those seats, and I wonder why those spots are empty.

Facetune.jpg

NGOs waiting at the AMC’s Children Area, also called Family Lounge.

The flight time is about 3 hours 15 minutes, and we are expected to arrive at Guantanamo Bay around lunch time.

I am looking forward to gathering as much information as possible on this trip, and I hope to learn from as many participants as possible, including other NGOs observers, media, the defense team, the prosecution, escorts, etc.

Soon I will be sharing more information here on this blog. Also I will be tweeting @alinedoral.

Stay tuned.

Aline Fagundes, Master of Laws (LL.M.) student

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

Program in International Human Rights Law

Indiana University McKinney School of Law