It’s Saturday morning and I’m heading to Guantánamo Bay again. This time I’m monitoring the US Military Commission case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. They are facing war crimes charges punishable by death.
The only people involved with this case who live at Guantanamo are the 5 defendants. Everyone else involved gathers at Andrews Air Force Base, the Home of Air Force One, and flies on a military flight to the remote base at the southern tip of Cuba.
With me at Andrews waiting for our flight is the Military Judge who is hearing the case and his staff, a series of prosecutors and defense counsel, court reporters, victims and their families, witnesses, security, media, and others. My role this trip is as an observer / monitor representing the Military Commission Observation Project I founded at Indiana University McKinney School of Law, to which the Pentagon granted permission to send our Faculty, staff, students and graduates to Guantanamo.
Our Indiana group is considered an “non-governmental organization (NGO)”. Today I am joined today by representatives of 9 different NGOs. Our mission is to attend, observe, be observed, analyze, critique, and report on the war crimes hearings.
Pictured above are our NGO observers receiving a briefing by Commission staff, the NGOs in the Andrews waiting area, and us in the bus on the Andrews tarmac as we head towards the plane. I will not post photos of the plane.
I plan to post updates later today and through the week.
I am a student at the Indiana University Robert H. McKinney School of Law, and I am currently participating within the law school’s Military Commission Observation Project (MCOP) as an NGO Observer. With the Pentagon’s approval, I am scheduled to attend, observe (and be observed), analyze, critique, and report on military commission hearings at the Guantanamo Bay Naval Base (GTMO) in the case against Nashwan al-Tamir, referred to by the prosecution as Abd al Hadi al Iraqi (“Tamir / Hadi”). The hearings are scheduled to occur between 8 April 2018 and 14 April 2018.
Nashwan al Tamir / Abd Hadi al Iraqi (2014 photo by the International Committee of the Red Cross)
Tamir / Hadi is an alleged senior member of al-Qaeda, and is accused of commanding attacks against US and coalition forces in Afghanistan and Pakistan in collaboration the Taliban, among other charges. Tamir / Hadi has been detained at GTMO since 2007, and has been the subject of criminal trial proceedings there since 2014.
Background and Interest in Observing
I became interested in the MCOP through my past engagements with the law school’s exceptional Program in International Human Rights Law (PIHRL). During the summer of 2017, I had the opportunity to support human rights non-governmental organizations (NGOs) spanning across three continents as a PIHRL Intern. I worked with NGOs in Poland, Uganda, and Mongolia on a broad range of public interest and human rights work.
Me standing next to the “A Tolerant and Hate-Free Mongolia” banner developed during my summer 2017 PIHRL Internship.
With the Helsinki Foundation for Human Rights in Poland, I generated research presented in amici curiae briefs in the European Court of Human Rights. With the Community Transformation Foundation Network in Uganda, I conducted field interviews with survivors of intimate partner violence to supplement ongoing impact reports. With the LGBT Centre in Mongolia, I helped train over 100 police officers to better understand Mongolia’s newly-established hate crime laws and to better support survivors of hate crimes.
It is through these tremendous experiences that I developed a deeper appreciation for international human rights law, international humanitarian law, and international criminal law. This appreciation immediately attracted me to the MCOP, as the crux of its mission is to ensure the U.S. Government follows its enduring mandate to respect fair trial rights and other internationally-recognized human rights for all stakeholders during GTMO proceedings.
Preparing to Observe
Me reviewing the Guantanamo Bay Fair Trial Manual (Volume I) in preparation for travel.
To prepare myself to travel to GTMO as an NGO Observer, I have primarily been reviewing several documents authored by Professor George E. Edwards with contributions from several other Indiana University McKinney Law School affiliates. First among these are the Guantanamo Bay Fair Trial Manual (Volume I) and the Appendices to Guantanamo Bay Fair Trial Manual (Volume II). These Manuals identify the internationally-recognized rights that apply to fair trials in the U.S. Military Commission context. They also detail the roles and objectives of NGO Observers in this context, and have therefore been invaluable resources during my preparations.
Next among these is the Know Before You Go To Guantanamo Bay Guide. The Guide further details the roles of NGO Observers at GTMO, and seeks to assist Observers with all manner of logistics as they prepare to travel and observe hearings. Information regarding how to travel to GTMO, how to stay healthy while at GTMO, and even where to eat while at GTMO are all included in the Guide. Not only has this been informative, but it has offered me tremendous peace of mind, particularly as a first-time Observer.
Beyond these materials, I have also been reviewing publicly accessible GTMO case information available through the U.S. Military Commission website – www.mc.mil. This has allowed me to better familiarize myself with the substantive proceedings in the case against Tamir / Hadi, and has granted me a better understanding of the procedural context of Military Commissions in general.
Finally, I have arranged for own my travel to Joint Base Andrews in Washington, D.C., which is required for all MCOP Representatives. I remain excited for the journey to come, and to further engage in my important role as an NGO Observer.
Please stay tuned for future posts.
Jacob Irven (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
I traveled to Guantanamo Bay, Cuba from 11 to 18 November 2017 to observe military
Four other NGOs and I at Guantanamo’s Camp Justice that week
commission proceedings against Mr. al Nashiri, who is facing war crime charges as the alleged mastermind of the October 2000 bombing of the USS Cole that killed 17 U.S. sailors and wounded dozens more. I am a student at Indiana University McKinney School of Law, and I was a non-governmental organization (NGO) representative on behalf of McKinney’s Military Commission Observation Project. I was there to attend, observe, be observed, analyze, critique, and report on my experiences.
My Previous Guantanamo Observation
Lighthouse at Guantanamo
Court was in session four of the five days during my week at Guantanamo. Most of the witnesses were called by the prosecution to testify about evidence they had collected from the USS Cole after the bombing and to verify the chain of custody.
Some of the witnesses were called to testify about the ongoing professional responsibility issue in the case. The issue is complicated, and is discussed more in-depth here and here.
In brief, Mr. al Nashiri’s Learned Counsel (an attorney who is experienced in death penalty cases) and two other civilian attorneys for Mr. al Nashiri did not travel to Guantanamo Bay for hearings that week as they contended that the Chief Defense Counsel of the Military Commissions released them from representing Mr. al Nashiri for “good cause.” The Judge disagreed with the Chief Defense Counsel’s decision and held him in contempt for refusing to rescind his order to release counsel and for refusing to take the stand and testify about the issues. The Judge has asserted that these three defense counsel have “abandoned” Mr. al Nashiri.
In January 2018, the Judge ordered the prosecution to subpoena the three defense counsel and recommended that the remaining defense counsel, LT Piette, become “more comfortable handling capital matters” so that the case can continue forward. The case did arguably move forward in January, in the sense that hearings were held that month, with LT Piette sitting in the courtroom as the only lawyer representing Mr. al Nashiri.
The Judge is awaiting decisions from two federal district courts.
Now that time has passed since I observed Mr. al Nashiri’s proceedings I have had time
In front of the North East gate which separates the U.S. and Cuba
to reflect on his case, and on the military commission proceedings in general.
U.S. military commissions are not new, and in fact have been around since the Revolutionary War. Our current military commission process is guided by the Military Commission Act (MCA) of 2009, which built upon the MCA of 2006, which followed from an Executive Order signed by President Bush in 2001. The MCA of 2009 is the legal authority for this court-martial/federal criminal court hybrid, and a legal observer can see the qualities of both criminal processes present in these military commissions.
Guantanamo defendants and defendants in the U.S. are under law meant to be afforded due process, and all have the Constitutional right of habeas corpus. On the other hand, their trials are guided by two different, but similar, rules of evidence. Both courts-martial and military commissions are generally open proceedings, but both can be closed for classified sessions. Courts-martial and military commissions both have a panel of military members and are not a trial by a judge or with a civilian jury.
Reasons for Wanting to Return
Flying over Cuba
I hope to travel back to Guantanamo Bay, Cuba to either continue monitoring the commissions against Mr. al Nashiri, or to begin monitoring the commissions against Mr. Khalid Shaik Mohammad, also known as “KSM”, and his four co-defendants, also known as the “9/11 five.” I want to return to monitor the commissions against Mr. al Nashiri because I have observed his hearings in the past, and I have since been following his case.
I am also interested in observing the 9/11 five since the courtroom and military commission proceedings were designed to specifically try the 9/11 defendants. Further, I was in 2nd grade when 9/11 happened, and it is an event that I remember clearly and grew up learning about. It is an event that affected nearly everyone in the U.S. and beyond. In addition, 9/11 was a key event that changed how the U.S. combats terrorism and seeks to protect national security. I would be interested in observing and analyzing how the government is working towards those goals of counterterrorism and national security via the military commissions.
In addition to traveling to Guantanamo Bay, I would like to travel to Ft. Meade, Maryland, where the Guantanamo proceedings are broadcast by live CCTV to a secure room. This will offer me another perspective on the issue of openness and transparency of the proceedings, which is outlined in the MCA.
While I was observing the military commissions against Mr. al Nashiri in November
Camp Justice, where I lived with the other NGOs for the week
2017, I was taking courses in Counterterrorism, Evidence, Professional Responsibility, and Criminal Procedure: Investigation back at Indiana University McKinney School of Law. I found all these classes to be helpful in understanding what was happening in the courtroom. I believe I will now have an even fuller understanding of what is happening in the courtroom since I have completed those courses. I am now currently taking Military Law and Criminal Procedure: Adjudication. Considering the military commissions are essentially halfway between a court-martial and a federal criminal trial, all the mentioned classes are very helpful. I also greatly appreciate that I have the opportunity to observe what I am learning at McKinney in the real world.
Further, I would have the opportunity to achieve the goals of McKinney’s Military Commission Observation Project: to attend, observe, be observed, analyze, critique, and report on my experiences. I would be able to bring what I observed first-hand, critique and analyze it, and share it with the public via the Gitmo Observer.
Jessica Ayer (J.D. Candidate, ’19)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Ahmed Al-Darbi, in an undated photo by the International Red Cross
Tuesday, 30 January 2018, in the Guantanamo Bay courtroom, an alleged al Qaeda Iraq member and Taliban liaison encountered the government’s purported “star witness” against him. Defendant Nashwan Al-Tamir has been charged with attacks against allied troops and contractors in 2003 and 2004 in Afghanistan, during the U.S. led invasion, and he was confronted in court by Ahmed Muhammed Haza al Darbi, who testified in August that Al-Tamir was “Hadi al-Iraqi,” Al-Darbi’s Al-Qaeda commander in 1996 whom he saw at a guest house with other Al-Qaeda commanders as late as 2000. In addition to testifying against Al-Tamir, Al-Darbi is also testifying in a case against the alleged U.S.S. Cole bomber, Abd al Rahim al Nashiri, who is alleged to have masterminded the bombing of the U.S.S. Cole off the coast of Yemen. His testimony was in exchange for a guilty plea under which he is set to return to Saudi Arabia this month to serve a sentence of 9-15 years.
Why I am in Guantanamo?
I am a graduate of Indiana University McKinney School of Law, and I am here as a monitor representing the school’s Military Commission Observation Project. This week I and five other NGO representatives have been monitoring pre-trial proceedings in the government’s case against Al-Tamir. Al-Darbi’s in court deposition was suspended in August due to Al-Tamir’s health and was set to resume next week.
Star witness against al-Tamir unexpectedly appears in the courtroom
To the the surprise of us NGO representatives observing proceedings this week, Al-Darbi came in to Court Wednesday afternoon with his lawyers for a hearing on Al-Tamir’s motion to compel production of records concerning his psychological condition and treatment. We did not expect him to appear in court today and we were surprised because his deposition was not set until next week. Not even Miami Herald reporter Carol Rosenberg, the only reporter to regularly attend the hearings, knew that this motion was would be on the Commission’s docket this week. Al Darbi was clean cut and wore a blue suit, having shaved the beard he had worn prior to his guilty plea. Al Tamir requested production of the records to try to discredit al Darbi’s testimony and deem it unreliable due to trauma he endured as a result of torture inflicted upon him at the U.S. air base in Bagram, Afghanistan and at Guantanamo.
Arguments about al Darbi’s mental condition & mental health records
Al-Tamir’s counsel, Air Force Major Yolanda Miller, argued that al Darbi’s records could show that Al-Darbi was suffering psychological trauma from torture when he testified against Al-Tamir in 2017. Miller also argued that Al-Darbi had waived any patient-physician privilege when he disclosed records in arguing that he was unable to testify publicly, and that at least the Court should review the records in camera, without disclosing them publicly, before ruling. The government argued that it had the responsibility to determine discoverability of the records, and that it had determined that al Darbi’s medical records were not relevant. Al-Darbi’s lawyer, Navy Lieutenant Commander Greg Young, argued that the medical records were privileged, and that Al-Darbi had not previously disclosed any of the records. The military judge, Marine Colonel Paul Reuben, took the matter under advisement.
Al-Tamir’s motion to abate the proceedings
Earlier Wednesday afternoon, the court had heard arguments on Al-Tamir’s renewed motion to abate the proceedings and his motion to compel the production of intelligence reports. The proceedings had previously been abated, or suspended, due to Al-Tamir’s degenerative back condition, for which he’s received four surgeries in the past four months. He had complained of pain since arriving at Guantanamo in 2007, and his previous treatment had largely consisted of ben-gay. Only last year after Al-Tamir had become incontinent and paralysis became a threat did he receive the surgeries.
Al-Tamir lawyer Adam Thurschwell argued that due to events which occurred just after Tuesday’s hearing, the hearings in the case should be abated, or suspended. Al-Tamir submitted a letter to the court stating that Joint Task Force (JTF-GTMO), which maintains the detention facilities at Guantanamo, had delayed his ability to relieve himself while dealing with the handcuffs agents had put on him too tightly, it’s seizure of documents his legal team had given him, and failure to deliver a special toilet seat to his holding cell which permitted the him to relieve himself without experiencing pain. He soiled himself, and there was no running water to his cell.
Thurschwell argued that the hearings had to be abated due to the government’s deliberate indifference to Al-Tamir’s medical needs, making it impossible for him to meaningfully participate in his own defense. Government lawyer Lieutenant Commander B. Vaughn Spencer presented the testimony of a Staff Judge Advocate (SJA) who disputed Al-Tamir’s version of events. He testified that the papers had been taken as a part of a routine review process involving any papers provided to detainees, and that he had asked Al-Tamir three times if he needed to use the toilet. Also, the Joint Task Force Guantanamo (JTF-GTMO), which operates the detention camps had, by Wednesday – the next day- provided the special toilet seat to Al-Tamir’s holding pod, and the Base Emergency Engineering Force (BEEF) had been notified of the water issue.
Judge Reuben found that the government had not been deliberately indifferent and denied the Defendant’s motion. Despite this ruling, Thurschwell continued to interject his concerns for Al-Tamir’s condition as the hearing continued. Judge Reuben and the government have agreed to conduct shorter hearings with more breaks as an accommodation for Al-Tamir’s disability, which causes him increased pain with prolonged sitting.
Defense motion to compel the government to produce intelligence reports
Judge Reuben also heard argument on the defense’s motion to compel the government to produce intelligence reports regarding its interrogations of Mr. Al-Darbi. Major Miller explained the interplay between intelligence documents known as HCRs (Human Collection Requirement), SDRs (Source Directed Requirement), and (IIRs) Intelligence Information Reports. She explained that while the government had provided IIRs which provide information of intelligence value to Department of Defense customers, it had not produced the underlying SDRs, which show specific collection requirements for interrogators examining detainees like Al-Darbi, or HCRs, which would reveal the questions asked by interrogators and whether Al-Darbi refused to answer them. According to Miller, these documents would provide objective facts, such as lie detector tests, as to whether Al-Darbi was telling the truth, and whether he had been asked about Al-Tamir during the earlier interrogations. Marine Captain William DePue presented the government’s argument that the SDRs and HCRs were not discoverable or relevant, were cumulative to information contained in IIRs, and that the defense had not met its burden to permit the court to compel the production of those documents. Again, Judge Reuben took these arguments under advisement.
During the argument on the defense’s motion to compel, the Chief Information Security Officer (CISO), who was seated to the judge’s right, leaned over and had an off the record conversation with the judge. The CISO has the ability to press a button during the proceedings if he believes that classified information is being discussed, which would cause a light at the judge’s stand to illuminate, monitors to go blank, and the audio feed to the gallery and remote viewing sites, which runs on a 40 second delay, to be cut. Thereafter, the judge asked each side if proceedings should be closed under Military Rule of Evidence 513. Both the government and defense replied that there was no cause for closed proceedings. This classified button was not pressed at any time during the proceedings we witnessed this week.
Wednesday’s hearings begun at 1 p.m., as Al-Tamir had a 10 p.m. MRI on Tuesday night. While the judge wanted to press ahead on the arguments regarding Al-Darbi’s psychological records, he finally relented to Thurschill’s requests that the hearing end at 5:30 p.m. due to Al-Tamir’s increased pain from prolonged sitting, and the resulting encumbrance upon his ability to participate in his own defense.
Development’s in the case during the rest of the week
We and counsel involved in the case all arrived in court on Thursday morning, expecting arguments on pending motions to resume. We were told, however, that Al-Tamir had refused to come to court due to the pain he was experiencing, and also did not waive his right to be present for the proceedings against him.
Friday’s hearing was also cancelled. Later on Friday, we learned that a neurologist had examined Al-Tamir and concluded that emergency surgery was necessary. Judge Reuben met with counsel for the parties at 10:30 p.m. Friday night in what is known as a 802 conference, for Rule 802 of the of the Rules for Military Commissions, to discuss how to proceed considering these developments. As a result, the commission will convene in open session on Sunday, February 4 at 9:00 a.m., and the neurologist will be present. We, the NGO observers at the military commissions this past week, will all look forward to reports from the next set of NGO representatives on this coming week’s developments at the military commission, as we have today (Saturday, February 3) returned to Washington, D.C. IU McKinney law student Denton Monteith will represent the school’s Military Commission Observers Project this week.
The Military Commission Administration Building at Guantanamo Bay, Cuba
2019 IU JD/MBA Candidate Denton Monteith flew into Gitmo on the same United Airlines plane I flew out on Sunday