Month: August 2017

Second Day of the al Darbi Deposition in Hadi al Iraqi Guantanamo Bay Military Commission Case

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NGO observers working in the NGO Resource Center after a day’s court session.

I have been in Guantanamo Bay, Cuba since Sunday, August 13th, 2017 serving as an NGO observer with the Indiana University McKinney School of Law’s Program in International Human Rights Law. The program is approved by the Pentagon to send observers to view proceedings that are a part of the military commission system. Other schools and organizations that have an interest in what goes on in GTMO also send observers. I am here with five other observers from four organizations and one other law school.

Morning Session Deposition – Day 2, Wednesday August 16, 2017

The prosecution called Guantanamo prisoner Ahmed al-Darbi to the witness stand to testify in the military commission case against Hadi al Iraqi, an alleged al Qaeda commander. al-Darbi pleaded guilty in 2014 to charges related to the 2002 attack on a French oil tanker, and as a part of that plea deal agreed to testify when called upon by the prosecution.

An issue of the direct examination on both days was that the prosecutor asked numerous complex and compound questions that appeared to be lost in translation and objectionable.

Unlike the first day of the deposition when Hadi al Iraqi was present, on the second day, he voluntarily waived his appearance and did not attend. al-Darbi looked very much like a business professional dressed in a dark gray suit, light gray tie, white shirt, and nice watch.

The second day of the deposition began with the prosecutor asking al-Darbi about Hadi’s alleged activities at a guesthouse/headquarters building in Kabul, Afghanistan. al-Darbi described about how Hadi would go to the communications room to check on the latest developments from the front and later go to the front himself to check on his fighters. The prosecution elicited from al-Darbi information in an apparent attempt to paint a picture of Hadi as an active al Qaeda commander, the extent to which he commanded the defense will most likely dispute. al-Darbi testified he last saw his former commander Hadi al Iraqi in the year 2000 at the guest house in Kabul.

Struggles in Recounting Torture 

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Camp X-Ray, the temporary detention facility at Guantanamo Bay, where the first 20 detainees were brought in January 2002. The camp closed in April 2002 and a court has ordered the preservation the camp to be potentially used as evidence in any future litigation. Though al Darbi arrived to Guantanamo after Camp X-Ray was closed, during his interrogation, he was allegedly threatened with being sent there where bad things would happen to him.

The afternoon session began with al-Darbi’s account of being taken in to U.S. custody, first at Bagram Airfield, Afghanistan, and later at Guantanamo Bay, Cuba. During this portion of the testimony, al-Darbi’s body language changed drastically. Instead of leaning towards the microphone when giving sometimes lengthy answers at a normal volume, when speaking of his captivity he leaned back in his chair and gave short answers at a low volume. The only time he gave a long answer during this portion of his testimony was when he stated that remembering the details about the things that happened to him after he was captured was more difficult than the experiences themselves.

al-Darbi appeared visibly to have had a difficult time recounting his treatment at Guantanamo Bay. He testified to having had to endure “stress positions,” sleep deprivation, physical assault (to include pushing, hitting, and having chairs thrown at him), humiliating tasks, and being forced to wear bunny ears and a diaper on his head.

The most difficult line of questioning came when al-Darbi described an incident while at Bagram Airfield in which his interrogator, Army Private First Class Damien Corsetti exposed his private parts and put them in al Darbi’s face. Though by all accounts he lived up to his nicknames as “The Monster” and the “King of Torture,” notorious interrogator Corsetti was acquitted of charges relating to his abuse of detainees.

The strategy of the prosecution in the latter portion of the second day seemed to be to bring out torture on direct examination because there is little doubt the defense will question his ability to recall the over 20 people he previously identified due to the time that has passed as well as the physical toll of the torture. The prosecution also attempted to blunt the impact of it later by asking questions reiterating the free and voluntary nature of his plea deal.

Meeting with Chief Defense Counsel, Brigadier General John Baker

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Brigadier General John Baker assumed his duties as Chief Defense Counsel in July 2015.

The NGOs had the opportunity on Thursday, August 17, 2017 to meet with the Chief Defense Counsel, Marine Corps Brigadier General John Baker. Earlier in the week we had met with the Chief Prosecutor, Army Brigadier General Mark S. Martins. BG Martins released a statement on August 19th about the hearings that occurred the week of August 14th. That statement can be read here.

BG Martins appears to be very much hands on with the prosecution of each of the military commission cases his office is responsible for prosecuting. He plays a direct role in the direction the cases take both from a staffing standpoint as well as a legal strategy. In addition, because of his background as Rhodes scholar, instructor at the Center for Law and Military Operations, and being widely published in professional journals, his meetings are significantly more polished, though not necessarily better. He speaks much more fluidly and longer winded in a manner that shows he speaks about the military commission system and law in general in the political arena.

BG Baker on the other hand is, as he characterized his role, more of a manager. He views his job as getting the tools each of his defense teams state that they need to do their job. He does not personally represent any of the clients, though he does seem to meet with them on a regular basis. One of the challenges he spoke at length about was the personnel issues that both he and his adversary, BG Martins have to deal with unique to the military. Most military attorneys, or JAG officers, are assigned for 2-3 years. In order for military personnel to advance their careers they cannot stay in place for long periods of time, and because these military commission cases in some instances last for a decade or more, staff continuity in the case is a constant challenge. Ultimately, the client suffers when the staff members are constantly turning over and the careers of the staff members suffer if they stay in their positions for too long.

BG Baker responded to our questions much more candidly and off the cuff. He, unlike BG Martins, gave us explicit permission to attribute things to him, as well as quote him. BG Baker spoke frankly about how he views the military commission system as a “failed experiment” and how he sees no way in which these cases will survive appeal. Though he says he is a firm believer in the general idea of military commissions, he sees “zero benefit” to trying the cases in this iteration of the military commission system.

On Friday of last week, the judge in the Hadi al Iraqi case, Marine Corps Colonel P.S. Rubin issued an order suspending the CCTV feed of the al Darbi deposition to Fort Meade. I asked BG Baker directly if he had received an explanation about why feed was suspended. He offered a theory that the deposition was not a court proceeding and therefore not under the authorization of a protective order issued by the judge, to send the feed to Fort Meade. The issue of whether or not to allow a deposition to be transmitted to Fort Meade has come up before. In the al-Nashiri case, the judge ruled the deposition of al-Darbi was to be completely closed. This meant no NGO observers could be present and the CCTV feed was suspended. In the Hadi case, the judge ruled NGO observers could be present, but still no CCTV feed.

BG Baker recognized the unprecedented nature and importance of the presence of NGOs at Guantanamo Bay hearings. He said to tell the world of about what happened here. That’s a responsibility I felt like each NGO observer has taken seriously in this unique and fascinating week.

Defense Team BBQ

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Sunset over Camp Justice at Guantanamo Bay, Cuba, August 13, 2017

Two members Hadi’s defense team invited all of the NGOs to the temporary house where they were staying for a BBQ. They cooked great burgers and hotdogs, and had a wide variety of beverages. Each NGO observer reported having a number of fascinating conversations with individual members of the defense team, to include the lawyers, intelligence personnel, investigators, and paralegals.

In September 2015, I traveled to Guantanamo Bay to observe a hearing for Hadi’s case in which he fired his military defense counsel. Fast forward to August 2017 and Hadi finally seems to have a solid defense team in place. According to members of this team, he chose Navy Commander Aimee Cooper to lead his defense, though she is not the highest ranking member of the team. The members of the defense team I spoke to report having a really good relationship with their client. This bodes well for his defense and seems to solidify the chance that he will have the rights afforded to him (as outlined in the Guantanamo Bay Fair Trial Manual) protected to the greatest extent possible.

Concluding Remarks

I want to thank each of my fellow NGO observers for an incredible week. Each shared their unique insights and made the experience one I will never forget.

I will continue to follow this case as it moves slowly forward in the hopes that someday justice will be served in a way that does not undermine the values America supposedly stands for.

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Guantanamo Bay August 2017 Hearings in the 9/11 Case – My Observations

I traveled to Guantanamo Bay, Cuba to monitor the 21 – 25 August 2017 hearings in the U.S. Military Commission case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon.

I represented the IU McKinney Military Commission Observation Project (MCOP) of the Program in International Human Rights Law (PIHRL).  My role was to observe the proceedings and provide independent, impartial, and accurate accounts of the proceedings.  Below I describe the week of hearings and activities that I and my fellow NGO’s participated in.

Monday 8/21 – Full Day of Hearings

NGOs at Camp Justice

NGO’s representing Indiana University, the ABA, The NYC Bar Association, and the Pacific Council on International Policy at Camp Justice, Guantanamo Bay, Cuba prior to military commission hearings August 21, 2017. 

Courtroom Setting & Preliminary Matters

The three other NGO’s that I was traveling with, myself, and our monitors entered the courtroom for our first day of hearings Monday morning at 8:30 for a 9:00 start time.  During our meeting with Mr. Connell, Learned Counsel for Mr. al Baluchi, on Sunday, he told us that this is the 25th set of hearings that he has participated in while representing their Mr. al Baluchi.  During this preliminary time before the hearings convened officially, while I was sitting in the observation area attached to the courtroom, I had a few observations about the surroundings and the logistics  as people entered and prepared for the hearings to begin.  On his way into the courtroom Gen. Martins individually greeted and shook the hands of the victims’ family members who were in the in gallery.

In the courtroom itself with two guards on either side of each defendant, each of the five detainees were brought in one at a time and escorted to their places at their respective counsel’s tables.  The detainees were unshackled and dressed in what we were told was traditional afghan clothing.  It appeared that all of the female civilian defense team members were wearing headscarves and modest clothing covering everything but their hands in deference to their client’s religious beliefs, while none of the female military personnel on the defense, prosecution, or guard detail seemed to dress any differently than they otherwise would (i.e. traditional western business attire and military uniforms).

When the judge entered the room all of the people in the courtroom and the viewing gallery stood except the detainees.  During the proceedings, the security force inside the courtroom consisted of approximately 19 military guards, three of which were female, who sat in chairs on the side of the courtroom closest to the detainees.  During the proceedings the guards rotated in and out of the courtroom periodically in pairs, presumably to provide a break for the guards during the proceedings.

Judge Pohl

Judge Pohl

Gen Martins

General Martins, Chief Prosecution Counsel

Judge Pohl initially addressed each of the accused and asked them each individually if they understood that they had a right to attend the hearings but that they could decline to attend as well.  They all indicated that they understood this with a simple “Yes” stated in English.  Mr. bin Attash spoke to the judge about his ongoing objections to his lead counsel Ms. Bormann which has been an ongoing issue for Mr. bin Attash.  I learned later during my conversation with Gen. Baker, Chief Defense Counsel, that his objection is based on a difference of opinion on trial strategy and not based on her gender.  The NGO’s learned that Ms. Bormann has asked the Judge on several occasions to step down as Mr. bin Attash’s counsel but the judge has denied the request.

Ms. Bormann

Photo provided by the Miami Herald of the Learned Counselors for the five 9/11 Defendants, from Left: David Nevin for Khalid Sheik Mohammed; Cheryl Bormann for Walid bin Attash; James Harrington for Ramzi bin al Shibh; James G. Connell III for Ammar al Baluchi; Walter Ruiz for Mustafa al Hawsawi.  

The final preliminary matter that was discussed was brought up by the attorneys for Mr. al Hawsawi.  They informed the judge that all their computers lost power that morning and as a result they were unable to access all of their documents for the hearings.  The judge informed the parties that during the morning session he would attempt to address those matters that did not involve the al Hawasawi team, and would address those issues pertaining to Mr. al Hawasawi later when hopefully the power would be restored to their computers.

Motions Addressed

Once the preliminary matters were addressed, the court turned to the list of motions on the docket for the day.  There were several motions that were handled relatively quickly which are summarized as follows:

Preliminary Discussion on 502 – Issues of personal jurisdiction

Several of the parties stated that more discovery is necessary so they were not taking part in this motion today.

Mr. Al Baluchi’s team stated that they are awaiting some clarification from the classification review process of the documents they intend to use regarding their classification level.  Specifically, 5 of their 11 documents submitted have different classification markings than they are currently authorized to see.

This particular issue brings up one unique situation in this case that has 5 different defendants.  With this one specific motion, several of the Defense teams had differing litigation strategies from each other team.  This shows how differing strategies may impact each of the individual defendants differently.

Noises & Vibrations

The next motion to be addressed was brought by Mr. bin al Shibh’s team.  Their client has complained for some time that he has ongoing issues about various noises and vibrations bothering him in the detention facility.  His attorneys stated that when he complains about it to the guards he is disciplined, and that those disciplinary penalties have escalated under the current camp commander.  Mr. bin al Shibh’s counsel told the court that these issues have interfered with their attorney client relationship and that they are seeking relief from the judge who has issued a prior order directing any noises and vibrations directed at Mr. Bin Al Shibh by the government to cease.  The attorneys argued that these orders have been routinely ignored and that they suggest the judge consider abating the proceedings until there is a resolution.

Transport Van Pictures

Mr. al Baluchi’s team had a motion to use pictures that they had taken of the prisoner transportation vans admitted into evidence but they were marked FOUO (For Official Use Only) in the classification review process.  This means that their client is not permitted to see the photos due to the various security features on the vans.  This issue was resolved with an agreement that the defendant’s team could use the photos in their case but they would not be publicly displayed or displayed to the defendant.

Hearing on Motion to Suppress Statement & Issue Protective Order

The main issue for the day’s proceedings that was argued at some length concerned a written statement from the 5 detainees outlining their response to the charges against them.  The defendant Mr. al Hawsawi’s counsel claims that the document is overly prejudicial to their client and should be suppressed from evidence. This document was filed during a time when 2 out of the 5 defendants arguably had counsel in place and 3 were proceeding pro se.

The prosecution made several arguments in response to this motion.  First, the document has been publicly posted on the internet and on the Military Commission website since 2009.  Second, the statement was not coerced and was voluntarily submitted by the defendants in order to show their pride in the 9/11 attacks and to plead guilty and confess to their crimes.  In addition, the judge at the time ordered it released publicly and no one or counsel objected at the time of its public release.  The session ended that afternoon with counsel for Mr. aL Hawsawi stating that they planned to present their response at the next public court date.

Meeting with General Martins

After the hearings concluded on Monday, our group of NGO’s had the opportunity to meet with General Mark Martins, Chief Prosecutor for the Military Commissions.

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NGO’s meeting with General Mark Martins, Guantanamo Bay, Cuba

General Martins spent over an hour talking with us and answering our questions.  After giving us some general background about the Military Commissions process, how it differs from a traditional Article 3 Court, and also from a traditional court martial process, we talked about some specific issues.  General Martins addressed some of the unique situations that arise by having the proceedings at Guantanamo Bay.

During the meeting we discussed that the base was established originally as a law of war camp and some of the facilities used have been re-purposed to accommodate the current proceedings but weren’t originally designed for that purpose.  For example, the defense issue of listening devices in the rooms where they meet with their clients was discussed.  We discussed the fact that these rooms were originally built and have been used for multiple purposes, including detainee interrogation and interviews where the use of video and audio monitoring is often employed.

Tuesday 8/22 – Closed Hearings

Today the hearings were closed to the NGO’s and the public since they were discussing classified information, but we had the opportunity to meet with Gen. Baker, Chief Defense Counsel.  Gen. Baker is the 7th Chief Defense Counsel since the Military Commissions process began after 9/11.

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General Baker, Chief Defense Counsel, Military Commissions 

General Baker started our meeting by giving us some background about his position.  He said that as of 2012 there were 12 GSA (General Service Administration) positions on the defense teams, and now there are 96 authorized positions although not all are currently filled.  He also outlined his general staffing guidelines for trying to have 23 personnel for each death penalty case, 19 for each non-death penalty case and 6 personnel dealing with sentencing issues.

Gen. Baker also indicated that his role was not to represent any defendants but to assist all of the various defense teams assigned to each particular detainee.  Typically, the defense teams have common interests and needs but occasionally there are different needs that may actually be in opposition to each other as was recently demonstrated by the testimony of one of the defendants (Mr. al Darbi) against another defendant (Mr. al Iraqi) neither of which are not involved with the KSM 9/11 case that we were there to monitor.

We also spent some time talking to General Baker about the anticipated timeline and the appeals process after the trials are actually done.  General Baker indicated that historically there is an 80% reversal rate on capital cases in Military Commission proceedings.  General Baker indicated several unique challenges that he said have posed significant challenges to this process; 1) The issue of torture has infected the process, 2) The issue of classified information and how to deal with it while also maintaining a fair process, and 3) The generally challenging logistics of having these proceedings at Guantanamo Bay, Cuba.

 

Camp X Ray

Picture of Camp X-Ray, the now abandoned open air facility that was originally used to house the initial detainees at the base. 

Hill

Chuck Dunlap and Justin Bingham in front of the Marine facility at Guantanamo Bay. Cuba

Wednesday 8/23 – No Hearings

There were no hearings today so we took the opportunity to visit a variety of places on the base including Radio GITMO, Camp X-Ray (the original site detainees were placed in open air facilities), and Marine Hill.  We also took the opportunity to get in a work out at the base gym (which is a fairly new, very nice facility) and especially enjoyed the showers which were several steps up from the showers in the latrine tents at Camp Justice.  We also went to Windmill beach and the NEX to buy more supplies.

Radio GITMO

A collection of the rare and extensive record collection at Radio GITMO

 

 

 

 

 

 

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A display showing the military chain of command inside the Marine Hill facility 

 

Thursday 8/24 – Full Day of Hearings

On Thursday, the hearings began at 9:00 AM with 4 of the 5 detainees present.  Mr. al Hawsawi was not present.  After discussions with the guards by counsel for Mr. Hawsawi in the courtroom under oath from the witness stand, Mr. Ruiz addressed the court about a letter that was hand delivered to him from his client that morning.  Mr. Ruiz stated that his client declined to attend the hearing due to being subjected to jarring and rough transportation rides in the van that brought him to the courtroom.  Mr. Ruiz stated that based on this, the detainee did not voluntarily waive his right to be present, at which point the judge recessed the proceedings until Mr. al Hawsawi could be brought to the courtroom.

Defense Argument of Islamic Response Statement

The proceedings were reconvened at 10:59 with all 5 of the detainees present.  The judge initially addressed Mr. Hawsawi and told him that in the future there would only be two options regarding attending the hearings; 1) sign an unconditional waiver to attend for the session or 2) attend in person and do not waive their right to be present.

The Court then moved to have the Defense address the issue of the defendants’ previous statement that the prosecution argued on Monday should be admitted .  Mr. Ruiz argued several points to show why “The Islamic Response to the Government’s Nine Accusations” document should not be part of the court record.  Specifically Mr. Ruiz cited the following points; 1) It is undisputed that 2 of the 5 defendants were represented by counsel at the time and therefore the individual detainees represented by counsel could not submit documents to the court on their own; 2)  The status of the case at the time was still an active case even though it was continued; 3) The statements by the defendants were not voluntary; 4) The statement was not actually signed by the parties; 5) a curative instruction by the judge is not adequate to protect the defendant from the prejudicial value of the statement.

The prosecution responded that the statement was not a pleading seeking relief but was a confession and the judge was not required to stop the defendants from making such a statement.  After both parties presented their arguments to the court, the Judge indicated that he would take the issue under advisement and issue a decision at a later time.

Issue of Disabling Audio in Attorney Client Meeting Rooms

The next issue the court addressed concerned the disabling of all audio recording in the attorney client meeting rooms in the detention facility on Guantanamo Bay.  The Court had previously entered an order prohibiting all audio recording in the client meeting rooms, and that order was still in effect.  The defense counsel indicated that in another case there had been an incident of recording devices found in the client meeting rooms and they wanted the court to reiterate its order and to also allow the defense teams to verify that audio recording was not occurring.  The prosecution and defense agreed to work together to try and satisfy the defense teams’ concerns.  It was also noted that for security reasons the guards are allowed to monitor the meeting rooms via video but without any audio.  The court then recessed at 1:15 until after lunch.

Issue of Preservation of Black Sites as Evidence

During the break, the NGO’s went to the Commissary for lunch. The court reconvened at 2:15. After a few minutes addressing the issue of listening devices in the client meeting rooms, the court moved to address the issue of preservation of the black sites as evidence.  The issue was raised by the Defense teams that the Court permitted the destruction of the Black Sites which the Defense teams wanted to visit and document in order to possibly submit mitigation evidence but which had been “decommissioned,” or destroyed as the defense states.

Mr. Nevin, Counsel for KSM and Mr. Connell, counsel for Mr. al Baluchi, took turns asking the judge questions in a voir dire process about his role in the original order to preserve the black sites where the defendants were held and then the process where the judge entered another order allowing the sites to be decommissioned without the defense counsel receiving a copy of the order in a timely fashion.  After the defense counsel asked the judge questions about what happened during this process and what the judge knew of the sequence of events, the defense rested and the court shifted to a different topic with the substance of the black site issue scheduled to be argued in Friday’s session.

Prosecution’s Proposed Scheduling Order

The next issue to be addressed was a discussion of the prosecution’s proposed scheduling order for moving the proceedings forward.  The government said that new resources (not a new courtroom) should be in place by Nov. 2018 , enabling two simultaneous trials/hearings to take place sharing the current courtroom.  Specifically, they proposed a 4/3-day rotation with one trial having 4 days on and 3 off and the other trial having 4 off and 3 on.  The judge said that the 9/11 case due to its size would not operate concurrently with another one.  Also, they could only do 1 death penalty case and one non-death penalty case at the same time and not 2 death penalty cases.

Until the improvements are completed in 2018, the prosecution recommended that the judges coordinate the schedules so they could maximize the use of the courtroom.  Also, the Government confirmed that they are not contemplating adding a new courtroom due to the “lack of political will” of the Pentagon to spend the money required.  There was a lengthy discussion about how feasible & logistically realistic it would be to build another courtroom.  The judge postponed this conversation until October when they are scheduled to reconvene for the next round of scheduled hearings.  One other option that was presented was to try to set up a SCIF (Secure facility) in the Washington DC area to do the 505 H and 806 hearings (Classified sessions) so they don’t have to go to GITMO for those.

Threat Assessment Documents

The next topic for today was on a discovery request from Mr. al Hawsawi’s team.   They argued that some documents related to a threat assessment of al Hawsawi were not produced by the Prosecution that the defense team wanted.  The prosecution is exerting a Deliberative Process Privilege which the judge will consider and rule on later after arguments.

End of the day

At the end of the day, the judge laid out several motions to be considered on Friday with a morning open session followed by a closed classified session.  At about 4:30 the judge allowed the defendants to pray in the courtroom before they were transported back to their detention cells.

Friday 8/25 – Morning Hearings

Court convened at 9:00 AM with none of the defendants present.  After confirming with the guards and defense counsel that all of the defendants had voluntarily waived their presence in the courtroom by having the guards testify in court, and a few other preliminary matters, the court turned to several issues: (a) the defense motion to disqualify the judge and the prosecution; (b) abate the proceedings due to the destruction of the black sites were the defendants were held; (c) and the inability to adequately obtain exculpatory evidence by the defense.

Argument to recuse Judge, Prosecution & Abate Proceedings due to Destruction of Black Sites

Mr. Niven and Mr. Connell lawyers for Khalid Sheik Mohammed and Ammar al Baluchi respectively,  argued that the exculpatory evidence at the black sites was destroyed without any notice to the defense teams, the substitute videos are not sufficient substitutions, and since this is a death penalty case, the only solution is to abate the proceedings and remove the judge and prosecution team.  The defense argues that a video recording that the court had made of the site is not adequate since it does not capture things like temperature, vibrations, lines of sight, sounds, humidity, and experts can’t see it in person.  Since this is a crucial part of the mitigation of the proposed death sentence, there is no other remedy but to abate the proceedings.

Mr. Niven & Mr. Connell argued that the government’s bad faith has been persuasive in this case and then laid out a time line of events, as follows:

1) Aug. 2012 – Defendants initially asked the court to order preservation of the black sites so they could inspect them and obtain mitigation evidense;

2) Dec. 2013 – The black sites are ordered preserved by the judge;

3) June 2014 – The judge after ex parte communication with the prosecution issues an order saying it is OK to “decommission” (aka destroy) the black sites (Order 52EE) but the redacted order does not get distributed to the defense attorneys at the time for unknown reasons

4) July 2014 – The Prosecution tells the judge that they will send the defense counsel a redacted order regarding destruction of the black sites

5) January 2015 – Defense counsel notice the order in the order book and contact the court to determine what it is since they never received a copy of it.

5) February 2016 – The defense counsel first receives the redacted order 52 EE issued in 2013 permitting the government to decommission the black sites

Mr. Swann, counsel for the Prosecution responds to the defendants’ motion by arguing that there is no basis for disqualification of the judge or the prosecution.  Mr. Swann argues that if there was an improper order by the judge that it is grounds for appeal not recusal.  In addition, the Classified Information Protection Act (CIPA) is the core issue here.  Specifically, the preservation of an alternative as was done in this case with the video has been consistently approved.  In addition the precedents that the defense relies on focus on evidence that was destroyed without a court order unlike this case.

Press Conferences and Final Dinner

After the court sessions were over, our group of NGO’s headed to the trailer next to the media room to watch the press conferences from the prosecution, the defense counsel and also the victims families.  After that, we had our final dinner together as a group at the Bay View restaurant.

PC TV

Mr. Connell, Counsel for Ammar al Baluchi, during the press conference, Guantanamo Bay, Cuba

 

PC Screen

Video feed prior to the Press Conference at Guantanamo Bay, Cuba 

 

 

 

 

 

 

 

 

 

Dinner

Group of NGO’s and Convening Authority representatives at Bay View restaurant, Guantanamo Bay. Cuba.

Saturday 8/26 – Travel back to Joint Base Andrews

Boat

Picture from the ferry boat of the boat used by Judge Pohl and his staff to cross Guantanamo Bay to the air terminal.

Saturday was our travel day back to Joint Base Andrews and we had to turn in our security badges, clean out our tents and make our way to the area to check our bags for the trip back.  After loading onto the ferry for the trip across the bay we boarded the plane at 10:00 and after 3 ½ hours we were back in the United States.

 

Charles R. Dunlap, J.D.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Travel Day to Guantanamo Bay to Monitor U.S. Military Commissions in the 9/11 Case  (August 19, 2017-August 26, 2017)

This is my second trip to observe the military commission hearings at Guantanamo Bay, Cuba as part of the Military Commission Observation Project (MCOP) of the Program in International Human Rights Law (PIHRL) of the Indiana University McKinney School of Law.  My role is to observe the proceedings and provide an independent, impartial, and accurate account of the proceedings.

I left Indianapolis Friday afternoon August 18 and drove for 9 hours to joint base Andrews, where the charter plane to Guantanamo Bay, Cuba was scheduled to depart at 09:00 on Saturday morning August 19. I was told to arrive at the Andrews Visitor Center by 06:00 and meet the escort from the convening authority who would fly with us.  Upon my arrival at the visitors center, one of our escorts vouched for me at the front gate guard station so I could drive onto the base to the terminal.  I followed our escort to the terminal where I met the other 3 Non Governmental Organization representatives (NGO’s) who are traveling to Guantanamo Bay for the KSM / 9/11 hearings with me.  There were representatives from the American Bar Association, the New York City Bar Association, and the Pacific Council on International Policy.

NGOs

NGO’s traveling to Guantanamo Bay 8/19/2017, at the family waiting room at Joint Base Andrews.  From Left to Right, Neysa Alsina, Victor King, Justin Bingham, Chuck Dunlap 

 

 

 

 

 

 

 

 

 

 

I handed out copies of the Guantanamo Bay Fair Trial Manual and the Know Before You Go: Guantanamo Bay (which were produced by the MCOP and are routinely distributed to other NGO’s traveling to Guantanamo Bay for the military commission hearings) books at the terminal for them to have as resources during our trip.

What to Expect

“Know Before You Go To Guantanamo Bay” publication produced by MCOP as a guide for those attending Military Commission Hearings

After an uneventful 3 ½ hour flight we arrived at about 1:00 in the afternoon in Guantanamo Bay.  Upon landing we were the last group to exit the plane since we were seated in the very rear of the aircraft.  We entered the main hanger and were processed through initial security procedures which consisted of a review of our travel orders issued by the Pentagon, our passports, and the other documents we had completed in order to travel to Guantanamo Bay.

After clearing through the initial security process in the hanger, we entered the terminal next to the hanger where I briefly got to say hello to Tyler Smith who was traveling back on the same plane we arrived on after observing the Abd al Hadi al Iraqi hearings the prior week.  Since we were the last ones to be processed through security, we had to hurry up and get loaded up onto the vans that were waiting to take us to the waiting ferry.  The ferry is a large military transport boat boat that can hold hundreds of people and also vehicles to cross the bay from the airport to the other side where the military commission hearings are held.

Aline10

The military ferry that we traveled on to cross Guantanamo Bay from the air terminal side to the Military Commissions side.

Dolphin

Photo of a dolphin taken from the ferry as we crossed Guantanamo Bay from the air terminal to the other side where the military commission hearings are held.

 

 

 

 

 

 

 

 

After traveling across the bay on the ferry we collected our luggage and got settled into our tents.  After that, we went to get our security badges which took place within the secured area of the courtroom compound at camp justice.  After that we made a trip to the Navy Exchange (NEX) to stock up on supplies for our week’s stay. The NEX is essentially like a Super-Walmart with food, clothing and general merchandise.

Tent

The accommodations that NGO’s receive during our stay at Guantanamo Bay, Cuba 

 

Camp Justice

An exterior photo of the tent compound at Camp Justice that the NGO’s stay in while attending the Military Commission Hearings

Later in the evening the 4 of us (NGO’s) were invited to attend a BBQ hosted by representatives from the Al Baluchi defense team.  In addition to the Al Baluchi defense team, several other members of other detainee defense teams were also present.  During this time we had the opportunity to talk with some of the defense attorneys about what to expect during the week ahead and how they expected the various issues on the docketing order to be addressed.  We learned that the defense teams anticipated a full day of public hearings on Monday followed by a closed session (closed to the public) on Tuesday due to the discussion of classified information, a public hearing day on Wednesday, and most likely closed sessions on Thursday and possibly Friday.  The members of the defense teams stressed that this tentative schedule is subject to change depending on how the hearings proceed day to day, but if the schedule stays as has been predicted by the defense teams, we should have some down time during the day so we may have opportunities to visit some other parts of the base including Camp X-Ray, Marine Hill and radio GITMO.

While we don’t know our full schedule for tomorrow yet, we have been told that at some point we will also have an opportunity to meet with the prosecution team as well and discuss the proceedings from their perspective.

Charles R. Dunlap, J.D.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

 

Deposition of Ahmad al-Darbi in the Guantanamo Military Commission case against Hadi al Iraqi

I have been in Guantanamo Bay Cuba since Sunday as an NGO observer as a part of Indiana University McKinney School of Law’s Program on International Human Rights Law to view the hearing session for the Military Commission case against Abd al Hadi al Iraqi (or Nashwan al Tamir).

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NGO observers in front of the Camp Justice sign before the first day of the Ahmad al-Darbi deposition.

The court session yesterday (Monday) involved several defense motions. Two were argued in the public setting, in which the NGOs and victim’s family members were allowed to be present. A third motion was not heard at all, and the fourth was heard (along with classified parts of the first) in closed session, in which all members of the public (NGOs, victims, and media) were not allowed to be present for.

 

Morning Deposition Session – Tuesday, 15 August 2017

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Ahmad al-Darbi in an undated Red Cross photo obtained by the Miami Herald. 

The prosecution called Ahmed al-Darbi, a Saudi born admitted jihadist to the stand to be deposed. al-Darbi pleaded guilty and promised to testify against Hadi, but because al-Darbi hopes to be repatriated to his homeland of Saudi Arabia soon, and will not be available to testify against Hadi in person at Hadi’s trial, his deposition testimony today will be preserved to be possibly used against Hadi at his trial. Hadi al Iraqi  was present for the first day of testimony. al-Darbi, wearing a gray suit, white dress shirt, and tie, sat calmly speaking with a soft even tone. Unlike in the picture to the right, he was clean-shaven, wore nicer glasses, and had short slightly gray hair.

Hadi al-Iraqi was seated at the left end of the first defense table in the courtroom wearing a white robe, white turban, and black vest. From my vantage point, I did not see if the two men looked at each other before or at any point during the testimony.

Six of us NGO observers were present in the gallery, along with several military servicemembers, family members of some of the victims, news media, and numerous military police. Veteran Guantanamo Bay military commission reporter for the Miami Herald, Carol Rosenberg published a piece a few hours after the conclusion of Tuesday’s session. That article can be viewed here.

The deposition was recorded for possible use by the prosecution at trial of Hadi al-Iraqi. al-Darbi, testifying in Arabic, but seemingly understanding some English through his interactions with the deposition officer, had the assistance of four interpreters that rotated throughout the testimony.

After several hours of foundation and background, al-Darbi identified Hadi as his former commander and stated that he recognized Had al Iraqi from a guesthouse in Afghanistan.

Presiding judge, P.S. Rubin, served as the deposition officer responsible for ruling on any raised objections. Throughout the five-hour deposition session, the defense raised many standard objections to the form of the questions the prosecutor asked and the answer elicited from al-Darbi. The defense objected to the prosecution asking leading questions, speculative answers from al-Darbi, being unclear about the time frame in which he was speaking about, and the non-relevance of large portions of his testimony.

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Osama bin Laden, notorious leader of al-Qaeda.

The narrative the prosecution tried to convey, though disjointed and hard to follow at times throughout the entire morning session, painted a picture of al-Darbi as a committed (at least initially) jihadist who had numerous interactions with high-level al-Qaeda and Taliban leaders, to include Osama bin Laden.

al-Darbi testified that as a young man from a troubled non-devout Muslim family, as a teenager he found reassurance, peace, and comfort at mosque. From there he became very much a believer in jihad, the highest rank of worship. He stated that to him jihad meant fighting infidels in self-defense, not giving into desires of soul, defense of home and property, and the defending of honor.

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The Bosnian War (1992-1995) claimed the lives of over 62,000 Bosniaks, or Bosnian Muslims.

He testified that following his service in the Saudi army during 1992, with no other job in his hometown, he slowly began to find his calling as a jihadist. By 1994, he would find his first jihad fighting as part of a Bosnian Army unit against Serbian aggression towards his fellow Muslims. As a young jihadist, al-Darbi dreamt about becoming a martyr, and became depressed when he left Bosnia alive.

He stated that following his return from Bosnia, other jihadists recruited al-Darbi to go to
Afghanistan for training. By 1996, he received recommendations to finish his training at al-Qaeda camps, despite previously being unaware of al-Qaeda’s existence, but knew of Osama Bin Laden due to the prominent nature of his family. During this time he first met with Bin Laden. After several more months of training he was invited by al-Qaeda to fight with the Taliban.

Afternoon Session

 Up until this point, the deposition focused on al-Darbi’s background and activities, as well as the identification of other fighters he interacted with, but made no mention, to my recollection, of Hadi al Iraqi. Much of the testimony in the afternoon finally began to focus on the nature of his interactions with Hadi.

al-Darbi testified that after he completed his training, he went to Kabul, Afghanistan. It is here at a guesthouse that he first saw Hadi al Iraqi. Despite all the training he had in advanced tactics and weaponry and his interactions with high level members of al-Qaeda, al-Darbi still appeared to be a fairly low level fighter, when he testified that his commander, Hadi al Iraqi, assigned him to be on a three-man tank crew. Al-Darbi saw Hadi on a daily basis during this period. In addition to the commander-subordinate relationship, they ate meals together while at the front lines.

One of the major purposes for the prosecution having al-Darbi even testify was to be able to positively identify the accused, Hadi al Iraqi. With all the background covered, the prosecution finally asked al-Darbi if he recognized the accused sitting at the defense table, to which he answered yes, though he looked older with a grey beard. When asked who he recognized the accused to be, he responded it was apparent to him that the accused is Hadi al Iraqi.

One of the strategies for the defense is to essentially say their client is not Hadi al Iraqi, but instead is Nashwan al-Tamir. During the deposition of al-Darbi, the prosecution specifically asked him if he ever heard Hadi al Iraqi go by any other name, or if he was aware of anybody else who had used that name. al-Darbi answered no to each of those questions and sated that he had never heard Hadi al Iraqi called Nashwan al Tamir.

This line of questioning and the questions dealing with al-Darbi’s interactions with Hadi made up a relatively small portion of the approximately four hours of today’s testimony. The prosecution introduced over 20 exhibits, most of which were photos of people he identified, other than Hadi al Iraqi. The NGOs, myself included, kept waiting for the prosecution to get to the point where al-Darbi would identify Hadi.

Unlike during a normal type of deposition when the deponent (the witness being deposed) is cross-examined immediately after direct examination, the defense will not have the opportunity to cross-examine al-Darbi at least until October. I would be interested to hear how the defense characterizes the name issue, as well as the relatively small number of interactions al-Darbi allegedly had with Hadi.

A transcript of the deposition is not available on the website of the Office of Military Commissions, and by all accounts it does not seem likely that it will be posted.

That concludes the summary of the first day of deposition of al-Darbi. The deposition will likely continue all day tomorrow. The next post will contain a summary of the day’s testimony as well as my overall thoughts on the two days.

 

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Public Denied Guantanamo Bay Hearing Broadcast at Ft. Meade, Maryland

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Observers from Indiana at Ft. Meade monitoring a Guantanamo Bay Military Commission hearing. Observers were permitted to see / hear the video / audio feed from the Guantanamo courtroom. (file photo)

Public observers at Ft. Meade, Maryland were banned today from watching satellite broadcasts of a hearing being conducted in the Guantanamo Bay courtroom, even though public observers physically at Guantanamo were permitted to view the same hearing.

Pentagon pledge of open and transparent hearings

For many years U.S. Military Commissions have been held at Guantanamo Bay, Cuba, to try individuals charged with war crimes. The Pentagon has stated that these criminal proceedings should be open and transparent, and that to facilitate transparency the Pentagon permits a small number of Observers to travel to Guantanamo to monitor hearings. Observers typically represent human rights or advocacy groups, or academic programs. Observers serve as eyes and ears for the general public, who do not have the opportunity to travel to Guantanamo Bay to witness hearings.

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The Guantanamo Bay Military Commission Courtroom, viewed from the spectator gallery. (file photo)

Observers sit in an enclosed spectator gallery in the rear of the Guantanamo courtroom, separated from the lawyers, prosecutors and defendants by a double-paned glass. Observers can see what is going on in the courtroom, and hear what is said.

The Pentagon also permits Observers to view Guantanamo proceedings by close-circuit television (CCTV) in a secure facility at Ft. Meade, Maryland. Observers at Ft. Meade can see what the cameras are pointing at in the Guantanamo courtroom, and hear what he Observers at Guantanamo hear.

Today, in what appears to be the first time, Observers were permitted to be present in the Guantanamo courtroom spectator gallery and monitor proceedings live, but Observers were not permitted to view those same proceedings by CCTV at Ft. Meade.

Thus, NGOs in the U.S. were effectively banned from monitoring today’s proceeding.

Why the ban?

It is unclear why Observers in the U.S. were banned from monitoring the hearings by CCTV at Ft. Meade today, while Observers could view the hearings live at Guantanamo.

Lawyers for the prosecution and defense apparently argued yesterday and over the weekend about the Ft. Meade ban. But, at least some of those arguments were held behind closed doors, with no Observer being permitted to hear.  Though motion papers were filed related to the ban, those documents are subject to a security review and are not releasable to the public until after 14 days, and may not be released even then.

There are 5 Observers at Guantanamo this week, and they were able to hear some arguments about the Ft. Meade ban. Indeed, they were in the courtroom able to witness today’s hearings – the same hearings from which the Fort Meade Observers were banned.

Again, it is unclear what the convincing argument is that Observers can watch today’s proceedings live in the Guantanamo courtroom, but other Observers cannot watch today’s proceedings by CCTV at Ft. Meade.

My Ft. Meade experiences today

I arrived at Ft. Meade well before the scheduled start time of today’s hearing. The staff member who oversees the Ft. Meade viewing room was there, the lights were on in the room, and the miniature lockers were in place in the rear of the viewing room so Observers could store their cell phones which can’t be used during the CCTV broadcasts.

The minutes ticked away, and soon I learned that an official message had been received that the hearings would not be broadcast to Ft. Meade today, and that was by order.

Nevertheless, I waited to see if  the hearing would open, with an announcement of closure made, before the transmission stopped.

Also, was there still a chance that the hearing would be transmitted in full? Just as an order is made, an order can be reversed.

In today’s case, the initial order regarding this week’s hearings was that Observers could monitor at Guantanamo Bay and at Ft. Meade. A subsequent order reversed the portion of the former order that permitted transmission to Ft. Meade. That reversal prohibited the transmission to Ft. Meade. That reversal could very well have been, and could still be, reversed, and transmission could have occurred today. It appears that it would only take a flip of a switch to begin transmitting from Guantanamo to Ft. Meade, and that such transmissions could be started at any point.

I continued to wait. The large video screen in front of the viewing room stayed dark and blank.

The person at Ft. Meade who oversees the technical side of the transmission sits in a different room of the same building where the viewing room is. I checked with that person, and was informed that there was no sign that the transmission would commence.

I left about 90 minutes into the hearing, with the screen still dark and blank, witnessing none of today’s testimony.

Options?

Yesterday I discussed in a blog post what my options were for being able to observe today’s hearings, particularly since I (and other Observers) chose not to travel to Guantanamo Bay this week in part because we were initially permitted to observe at Ft. Meade. We were informed 4 days ago (Friday) that NGOs would be banned from viewing the hearings at Ft. Meade. By then it was too late to catch the Sunday flight to Guantanamo Bay to view the hearings in person, sitting in the spectator gallery, along with the 5 Observers who are there. There are 14 seats reserved for Observers in the Guantanamo courtroom, so they had room for 9 more Observers this week.

Had I known last week what I know today, I definitely would have requested travel to Guantanamo Bay for this week’s hearings.

I am scheduled to deliver in Australia early next week, and I could have delivered (and still could deliver) that lecture by video rather than in person, freeing me to be at Guantanamo Bay for this entire week. Indeed, if I could go to Guantanamo tonight or tomorrow for the remainder of this week’s hearings that are not being transmitted to Ft. Meade, I would do so and deliver the Australia lecture by video.

Perhaps the Military Commission will permit Observers who were banned from viewing this week’s proceeding at Ft. Meade to view the videotape? The videotape cannot be classified, because if it were, then the 5 Observers at Guantanamo this week would not have been permitted to be in the courtroom for the hearing.

If the reason for the Ft. Meade ban was security associated with transmitting it stateside – maybe the possibility of interception / hacking – then I and other interested Observers could watch the videotape in a secure room at the Pentagon, or in a secure facility when we are next at Guantanamo Bay – and even possibly watch the video in the courtroom itself.

Also, if any victims and family members of victims (VFMs) are interested in watching the video, maybe they will be permitted to do so as well. Several FVMs were present in the Guantanamo courtroom for today’s hearings, but VFMs were denied the opportunity to observe today’s hearing at Ft. Meade, just as Observers were denied the opportunity to observe. Indeed, any member of the general public, aside from Observers, were similarly denied the opportunity to observe at Ft. Meade, though members of the general public are entitled to observe at Ft. Meade, as are Observers, VFMs, and media.

George Edwards

 

Travel to Guantanamo Bay and First Full Day of Hadi al Iraqi Hearings

 

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NGO observers at Andrews preparing before the flight to Guantanamo Bay.

I traveled to Guantanamo Bay, Cuba to serve as an NGO Observer to view hearings for the military commission case against Abd al Hadi al Iraqi, or Nashwar al Tamir as the defense calls him. I am representing the IU McKinney School of Law’s Program on International Human Rights Law, and am joined by five other observers representing four organizations and one other law school.

The flight down here was on a chartered Miami Airlines plane lasting just over 3 hours. Once we debarked from the plane we got in a van and drove onto a ferry that crosses to the windward side of the bay.

First Day of Court

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Welcome sign at the Passenger Terminal on the leeward side of Guantanamo Bay

Last time I came down here in September 2015, Hadi only had military counsel, unlike the other military commission defendants who had both private and military attorneys. At the hearing I viewed, he fired his chief defense attorney to make way for a private attorney. Today, I immediately noted that in addition to several different military counsel, he had a private attorney as well.

In addition to the 6 NGO observers in the courtroom gallery, a number of family members from two servicemen killed in Afghanistan in 2003 were also present.

Just before the start of the session, everyone in the gallery was made known about the approximate forty-second delay from the action in the actual courtroom to the audio and visual feed on the four monitors visible from the gallery. This delay is supposed to prevent those in the gallery from hearing potentially classified information. Practically speaking, the delay makes it almost useless to watch the actual happenings in the courtroom. This is especially prevalent when the hearing comes to a conclusion in the actual courtroom but is still going on the monitors that we can hear and see in the gallery. At the conclusion, everyone stands in the courtroom and we in the gallery are given the “all rise,” but the hearing hasn’t finished yet on the monitors. Despite this, watching and listening exclusively on the monitors causes little issue.

Morning Court Session

Four items were on the docket for the week, in addition to the deposition of al Darbi, a defendant in another military commission who agreed to testify against Hadi and al Nashari.

The session began with the judge giving a brief rundown of the meting (called an 802 conference) that occurred on Sunday evening between the judge, prosecution (trial counsel), and defense. The private attorney then spoke of several issues relating to the defense’s initial objection of the deposition, the camera angles for the deposition to be conducted this week, the defense team not receiving transcripts from al-Darbi’s deposition from a previous case, and the prosecution’s Friday afternoon delivery of thirty-five exhibits the defense claims to have had no knowledge of. Another issue the private counsel addressed was an issue of attorney-client confidentiality between al-Darbi and his counsel.

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The page that shows up when one attempts to access a file not currently available for viewing by the public from the Office of Military Commission’s official website.

After those initial concerns and responses by the prosecution, the judge heard arguments on the first motion, Appellate Exhibit (AE) 091. This motion, like many of the most recent filings, is not available to be viewed by the public on the Office of Military Commission’s official website. Therefore, we could only go off what was said about it during the session.

In this motion, the defense requested the court compel the prosecution to allow their client to use a laptop to be able to view the 31,000-33,000 pages of documentary evidence.

The defense argued their client’s ability to access these documents in an electronic format would allow him to have meaningful access to the courts and facilitate effective assistance of counsel. The defense also argued that because of the massive amounts of documents, he has limited ability to store documents in his cell.

One member of the prosecution, Navy Lieutenant Commander David Lincoln, argued that Hadi should not be given a laptop due to security concerns, that he has six defense counsel that can represent him effectively in court without a laptop, and that he does not have the constitutional right to a laptop.

The second motion, AE 70CCC was only partially argued, limited by the potential for classified materials. This motion seeks to compel discovery of unredacted statements of Ahmed al-Darbi, a detainee who has traded his release from Guantanamo in exchange for testimony in several cases.

AE 085 is a motion to dismiss the charges, in which the defense argues that Congress lacks the authority under the Constitution to limit the jurisdiction of the law of war military commissions to non-citizens. This motion was not heard as the defense requested to hold off on having it argued before the commission.

A Shortened Court Session

The two motions discussed above were argued before lunch break. Shortly after finishing arguments for the second motion, the all of the attorneys and judge had a meeting, presumably in his chambers. The judge then dismissed the court for lunch. After the court reconvened for the afternoon session, the judge announced that the court was going to close the hearing to the public. The remaining motion, AE 070FFF and portions of the second motion, AE 070CCC were to be argued in a closed session due to concerns about classified material.

Accordingly, all of the victims and NGOs had to leave the courtroom and were done in court for the day. Our NGO escort informed us afterwards that we would have a chance to talk with the Chief Prosecutor after the conclusion of the closed session.

 

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Chief Prosecutor of Military Commissions, Brigadier General Mark S. Martins was kind enough to pose with me following his briefing with the NGO observers in September 2015.

Meeting with Chief Prosecutor, Brigadier General Martins

The last time I traveled to GTMO in 2015, I had the pleasure of meeting the Chief Prosecutor of Military Commissions, Brigadier General Mark Martins when he sat down with all the NGO observers for a Q&A session. This time, he remembered me at the terminal in Andrews on Sunday and we briefly exchanged pleasantries.

We met him again for a Q&A session after the closed session on Monday. He was as gracious as he was last time. His intellect, legal knowledge, and scholarly demeanor are most impressive. The NGOs asked insightful and tough questions. He answered each with candor showing his firm belief in the rule of law.

I come away with the impression that he is unlikely to say anything other than that his personnel are doing the best job they can do under limiting circumstances. He seems to recognize that there are issues with how the proceedings occur. However, he is the best position to know the effort his staff exerts in trying the cases within the framework of the system they are given.

The military commission system is deeply adversarial. So far we have only heard one side. We are greatly interested in hearing the perspective of the defense counsel when we are given the chance.

 

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Prohibited from observing Guantanamo Bay hearing at stateside CCTV viewing facility

ft-meadeI was scheduled to travel to Ft. Meade, Maryland, the week of Monday, 14 August 2017 to monitor pre-trial hearings in the Guantanamo Bay U.S. Military Commission case against an alleged high-level al Qaeda member. The hearings were to be broadcast via-closed circuit television (CCTV) from Cuba to the Ft. Meade army base, where I have monitored hearings in all the active Guantanamo Bay cases. The U.S. government has stated that Guantanamo Bay (a/k/a Gitmo) proceedings should be open and transparent, and that CCTV broadcasts to Ft. Meade promote openness and transparency.

Now, unexpectedly, it is unclear whether the CCTV will operate this week, and whether I and others will be able to observe this week’s proceedings at Ft. Meade.

Camp JusticeI was informed that the military judge in charge of the case has reversed an earlier ruling, and has now prohibited this week’s proceedings from being broadcast to Ft. Meade. His new ruling apparently permits 5 monitors who traveled to Guantanamo this weekend to observe / monitor the hearings while sitting in the spectator section of the Guantanamo courtroom. However, monitors such as myself who planned to observe from Ft. Meade are effectively banned from observing this week’s proceedings.

In addition, presumably members of other stakeholder groups – such as victims and their families (VFMs), media, and the public at large — are likewise banned from observing this week’s proceedings at Ft. Meade. And, again, the only observers permitted to monitor are those who happened to be on the plane to Guantanamo Bay this weekend.

What are this week’s hearings about?

The defendant in this week’s case is Mr. Hadi al Iraqi (Mr. Nashwan al Tamir), who is an alleged high-level member of al Qaeda who allegedly perpetrated war crimes. This week’s hearings are out of the ordinary in that they would not consist primarily of prosecution and defense lawyers arguing about a range of issues that are typically resolved pre-trial. Instead, this week would consist of testimony by a different Guantanamo detainee, Mr. al Darbi, who pleaded guilty and is cooperating with the government as a witness against Hadi. Ordinarily, a government witness would testify at the actual trial, and not during the pre-trial hearing stage. However, al Darbi is set to be repatriated to his home country soon, and is not expected to be available to testify live during the trial. This week’s testimony is in part a stated attempt to “preserve” al Darbi’s testimony (in the form of a deposition), which could be introduced against Hadi at trial.

My interests in this week’s hearings

I am a professor of international law, and founded the Guantanamo Bay U.S. Military Commission Observation Project / Gitmo Observer at Indiana University McKinney School of Law. (www.GitmoObserver.com) The Pentagon granted our Project status that permits us, as a non-governmental organization (NGO), to send observers / monitors to Guantanamo Bay and Ft. Meade to observe / monitor hearings.

Our Indiana Project is a independent and objective. We are not aligned with any side or party associated with the military commissions.

Among other things, we have developed the Guantanamo Bay Fair Trial Manual,* which independently and objectively examines rights and interests of all categories of Gitmo stakeholders, not just the rights of the defendants. The Manual explores rights and interests, under international and U.S. law, of the following stakeholder groups: defendants (as mentioned), the prosecution, victims and their families, media, witnesses, the Court and its employees, the Guantanamo Bay guard force, other detainees, NGO observers, and others.

Many of our Indiana observers have traveled to Ft. Meade and Guantanamo Bay to monitor hearings. We publish, among other things, blog posts on http://www.GitmoObserver.com.

 The judge’s earlier ruling – Yes, NGOs can view at Ft. Meade this week.

The judge in the Hadi case initially ruled that the taking of al Darbi’s testimony, in the form of a deposition, would be open to the public. For purposes of this blog post, that meant at least two things:

  • NGO representatives would be permitted to fly to Guantanamo Bay, Cuba to be present in the courtroom’s spectator gallery so they can observe / monitor the deposition live; and
  • NGO representatives, and other members of the public, would be permitted to travel to Ft. Meade, Maryland where they could observe / monitor the deposition via close circuit television.

NGOs being permitted to observe at both Gitmo and Ft. Meade has been standard for hearings for years.

The Judge’s most recent ruling – NGOs are prohibited from observing at Ft. Meade this week

This past week, word circulated that the judge had issued an order prohibiting NGOs (and presumably prohibiting other stakeholders) from viewing the al Darbi deposition via CCTV at Ft. Meade. Apparently NGOs who traveled to Guantanamo this weekend could still observe the deposition live in the courtroom.

I have not actually seen the judge’s ruling, as his rulings, like all filed pre-trial hearing motion papers, are not ordinarily released to the public until the papers undergo a security check, a process that takes at least 14 days. However, word of the ban reached me and others.

Options for me to observe / monitor the hearings this coming week?

I had the opportunity to apply for an NGO observer slot to travel to Guantanamo Bay to monitor the hearings live this week from a seat in the courtroom’s spectator gallery. But, I decided not to apply in part because I believed I would be able to observe this week’s hearings at Ft. Meade.

Had I known that the judge would reverse his ruling and ban NGOs from observing the hearings at Ft. Meade this week, would I have applied for an observer slot to travel to Gitmo for the deposition? Most probably yes.

Though I had a law lecture scheduled in Australia for the week following the Hadi hearings, I would have sought harder to figure out a way to get to Gitmo for the deposition and still arrive in Australia for my lecture. I had figured out that I could do both – fly to Gitmo and fly to Australia, and that would have been my preferred course. But, again, I decided that I could observe at Ft. Meade this time and avoid scheduling issues.

When I learned that the judge prohibited CCTV feed at Guantanamo this week, I thought about how I could get to Gitmo this weekend. It turned out to be an unsurmountable challenge, because, for example, timing was short for the paperwork that needed to be completed before Gitmo travel.

My plans for the al Darbi hearing / deposition

At the moment, I plan to travel to Ft. Meade on Monday morning, 14 August 2017. Though I have been informed that the feed has been cut to Ft. Meade for Monday, the possibility exists that the judge will change his mind and re-open the hearings at Ft. Meade, making it possible for me, other NGO representatives, and other stakeholders to observe / monitor there – again, if the judge orders the CCTV to go forward for Ft. Meade and if any of us is able physically to be present at Ft. Meade this week.

George Edwards

 

* The full title of the Manual is “Guantanamo Bay Fair Trial Manual for U.S. Military Commissions: An Independent & Objective Guide for Assessing Human Rights Protections and Interests of the Prosecution, the Defense, Victims & Victims’ Families, Witnesses, the Press, the Court, JTF-GTMO Detention Personnel, Other Detainees, NGO Observers and Other Military Commission Stakeholders

 

 

Travel to Andrews/Public Hearing for August Hadi al Iraqi Session?

I’m on my way to Guantanamo Bay Cuba as a member of the Program on International Human Rights Law at the IU McKinney School of Law. This will be the second time I’ve traveled to view a session of hearings for the Hadi al Iraqi military commission case. This week is scheduled to address several issues, including the deposition of Ahmed al-Darbi, a detainee who has traded his release from Guantanamo in exchange for testimony in several cases.

First Attempt – Arrived One Day Early For My Flight 

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An empty Passenger (PAX) Terminal at Andrews.

After a very rainy drive to D.C. on Friday, I picked up copies of the Guantanamo Bay Fair Trial Manual: Excerpts and the Know Before You Go guide to give to my fellow NGO observers. These materials have been developed by the Program on International Human Rights Law at the IU McKinney School of Law, and serve as valuable resources to NGO observers.

Saturday morning, I arrived at Andrews Joint Air Base and was able, unlike initially last time, to gain entry on to the base. When I arrived to the terminal, I was slightly alarmed to only find the only two people in the entire terminal to be two Airmen cleaning the floor. They were quickly able to inform me my flight was to leave the next day, Sunday.

The email I received stated the flight would be the 13 (Sat), giving the correct date but wrong day. Misinterpretation and misinformation is a fairly common occurrence in my experience working for and with federal, state, and local governmental entities. No harm, no foul this time though. It was a good dry run. I know exactly how to get to the Passenger Terminal (PAX Terminal) and have the day to brush up on the available case documents and potential issues.

Public hearing?

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Ahmad al Darbi, set to be deposed this week in the Hadi case, pled guilty in 2014 to the 2002 attack on a French oil tanker. He has yet to be sentenced.

On Friday, the military judge issued an order that effectively will deny public access to the deposition of al Darbi this week.

Ordinarily, the military commission proceedings are available for viewing via a secure feed at Fort Meade, Maryland. However, that may not be the case this week. I will confirm this tomorrow at the terminal.

If this is true, then the five of us NGOs will bear the responsibility alone to report on the deposition. We are the “eyes and ears of the outside world as to what happens at Guantanamo Bay.” This responsibility will greatly be enhanced if others cannot view the proceedings at Ft. Meade.

In 2012, the defense counsel for the U.S. v. Al-Nashari case summited a motion to request that the proceedings be available to media outlets in addition to the CCTV locations. In response to the motion, the government cited U.S. v. Moussaoui, a case in which the Court found that an audio-visual feed and online publishing of the transcripts “fully satisfy the constitutional requirements for openness and accessibility.”

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The courtroom in the Expeditionary Legal Complex at Guantanamo Bay, looking from the gallery. (Photo credit: CBS News).

The suspension of a live feed of a deposition is different than not allowing live cameras in a military proceeding at issue in Moussaoui, but the suspension of the audio-visual feed seems to implicate a potential conflict with the constitutional requirements for openness and accessibility.

More research would need to be done to determine the legal impact of the feed suspension and I look forward to investigating further, should it turn out to be the case.

Second attempt – The Correct Day of My Flight 

After my self-imposed delay, I successfully arrived at the Passenger (PAX) Terminal Sunday morning and met my fellow NGO observers. Five total NGO observers representing five different organizations are set to travel to GTMO. Those organizations include the New York City Bar Association, Georgetown University Law Center, National District Attorneys Association, and Judicial Watch. Each observer seems eager to get there and get to work.

The next blog post I make will be from Guantanamo Bay Cuba.

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Returning to Guantanamo for a 2nd Time; August 19-26 Hearings in United States v. Khalid Sheikh Mohammed, et al.

KSM in Court

Artist Rendering of Khalid Sheikh Mohammed during Military Commission proceedings at Guantanamo Bay, Cuba

I have been involved with the Indiana University McKinney School of Law’s Military Commission Observation Project since 2014.  During my time with the project I have observed hearings at Ft. Meade, Maryland and also at Guantanamo Bay, Cuba in both the Khalid Sheikh Mohammed – 9/11 proceedings as well as the Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri – USS Cole case.  I look forward to returning to Guantanamo Bay after 3 years.

In New York City

Coincidentally, I am currently in New York City attending the American Bar Association meetings and plan to visit the National 9/11 Memorial site tomorrow.

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National 9/11 Memorial, New York City

Guantanamo Hearings Resume After Judge Ordered Halt in Proceedings

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An artists view of United States Army Chief Circuit Judge Col. James L. Pohl (AP Photo/HO/Cpl. Annette Kyriakides)

As I prepare to attend the hearings and review various materials in order to bring myself fully up to date on the current issues in this case, one issue has garnered a lot of attention in the press.  According to the Miami Herald, last month the judge in the case, Army Col. James L. Pohl, suspended all hearings due to a conflict with the base commander regarding sequestration of judges and judicial staff during transit to GTMO, specifically on the boat transportation across the bay at the base in Cuba.  The article stated that the judge was concerned when a separate boat for the judicial staff was recently discontinued by the base commander.  This change would have required the judge and his staff to be in close proximity to members of the prosecution, defense, media, family members and NGO’s during the trip across the bay from the airport to the portion of the base that houses the military commission facilities at Camp Justice.  As a result, according to the article, the judge felt that this could negatively affect the integrity of the proceedings and the independence of the trial judiciary or raise that perception.  Earlier this month an arrangement was reached to once again provide separate boat transportation to the judicial staff once they arrive at GITMO and the hearings are set to resume the week of the 19th.  This is another example of the unique circumstances and situations that are involved with the location of the Military Commissions.

Camp Justice

Camp Justice, Guantanamo Bay, Cuba.

Charles R. Dunlap, J.D.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Return trip to Guantanamo Bay- August Hearing for Abd al Hadi al Iraqi

I am a 2015 J.D. graduate of the Indiana University Robert H. McKinney School of Law and a 2017 LL.M. graduate of Notre Dame Law School.

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This Pentagon approved sketch by court artist Janet Hamlin shows Hadi al Iraqi (aka Nashwan al-Tamir) during his arraignment in June 2014. 

The upcoming hearing scheduled for Abd al Hadi al Iraqi (aka Nashwan al-Tamir) marks the third time I have been selected to travel to Guantanamo Bay, Cuba to view military commission hearings.

After one cancellation in March 2015, I was fortunate enough to have traveled to GTMO in September 2015. It was a short, but fascinating experience. I am grateful for the opportunity to potentially make the trip again. My previous blog posts can be found here.

The hearings I am scheduled to observe so far are still set for August 14-18.

Where the Case Stands

Detained in GTMO since 2007 and accused of war crimes related to his alleged conduct as an alleged al-Qaida commander, the U.S. charged Hadi al Iraqi in 2014. During my first trip to GTMO, he fired his lead military appointed defense counsel in an effort to retain a private attorney.

As of October 2016, the case also has a new military judge. Marine Corps Colonel P.S.

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The current presiding judge Marine Corps Colonel P.S. Rubin

Rubin succeeded Navy Captain J.K. Waits without explanation.

August Hearing Session

According to the Docketing Order, dated July 21, 2017, the upcoming hearing session should consist of argument and the presentation of evidence related to four defense motions. The order can be found here.

Two of the motions deal with compelling discovery of statements made by a defendant in another military commission case, Ahmed Mohammed Ahmed Haza al-Darbi. Another motion is seeking to dismiss the charges against their client because the defense claims Congress lacks the Constitutional power to limit the jurisdiction of military commissions to non-citizens. In the fourth motion, the defense seeks the commission’s permission to allow the defendant to use a personal computer.

The last time I traveled to GTMO, I made a preliminary blog post going off of the docketing order as well, but all of that went out the window when everyone received word that Hadi wanted to fire his counsel. Therefore, if all of these issues are actually heard, then it will be a fair amount of progress.

Preliminary Thoughts

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Logo of Joint Task Force-GTMO. This group of military personnel is responsible for the care and custody of the detainees.

I am driving to Joint Andrews Air Base tomorrow. I am looking forward to again experiencing the incredibly bureaucratic process of traveling to GTMO. Viewing the hearing last time had a significant impact on how I view certain institutions, such as the military and the justice system, that are built on notions of patriotism. I also may be able to see some of my fellow Indiana National Guardsmen who arrived in GTMO last summer, if they are still there.

 

 

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law