Month: April 2019

Returned from Majid Khan hearings in Guantanamo Bay.

During the week of 31 March to 3 April 2019 I traveled to Guantanamo Bay, Cuba to monitor U.S. Military Commission pre-sentencing proceedings against convicted war criminal Majid Khan.

This was my fourth trip to Guantanamo Bay representing the Program in International Human Rights Law of Indiana University McKinney School of Law. Indiana has a Military Commission Observation Project which sends law students, graduates, faculty and staff to Guantanamo to serve as independent, objective monitors of criminal proceedings. I have also monitored Guantanamo proceedings at Ft. Meade, Maryland, where cameras in the Guantanamo courtroom broadcast by secure CCTV.

In his guilty plea, Mr. Khan stated that after 9/11 he traveled from Maryland, where he had been living as a U.S. permanent resident, to Pakistan and agreed to participate in an al-Qaeda plot using suicide vests to assassinate the former President of Pakistan, Pervez Musharraf. He said that he later moved $50,000 USD to finance the 2003 J.W. Marriott bombing in Indonesia, an attack that killed 11 people. He pleaded guilty in 2012 to conspiracy, murder in violation of the law of war, attempted murder in violation of the law of war, providing material support for terrorism, and spying. The Military Commission Convening Authority agreed to allow him to withdraw his guilty plea to the charge of providing material support for terrorism after a D.C. circuit court ruled in another case that the charge could not be appropriately tried at a military commission.

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Non-governmental observers from left to right (New York Bar, Yale Law, Indiana University, Columbia University, American University, and Pacific Coast Bar) pictured in Camp Justice, Guantanamo Bay, Cuba.

A Different Dynamic for the Khan pre-sentencing hearings

During the three other proceedings I attended at Guantanamo, when the defendants entered the courtroom through a side door, they each had two soldiers, one on each side, and these soldiers sometimes held the arms of the defendants, as they walked into the courtroom. I was thrown off when Majid Khan entered the courtroom in Guantanamo Bay. Though guards were present, they followed from a greater distance than was the case with the other detainees I observed. Mr. Khan was also not dressed in the same way as the other detainees I have seen, he wore a black suit, that looked similar to the suits that his civilian defense counsel wore. He carried a blueish purple leak colored metallic looking water bottle.

It was hard to tell but when he came in it appeared that he opened the door himself to enter from the left side of the courtroom, of course United States serviceman provided security. He briefly turned to the back of the room and pointed towards the observation box, which sits behind triple pane sound resistant two-way glass. As he pointed, he spoke to his lawyer and it appeared he was asking who we were. We all sat calmly and did not make any motion, as communicating through the glass is forbidden.

Khan was represented by a team of attorneys who were seated to his right, on the left side of the courtroom. It surprised me how respectful Majid Khan appeared to be of the proceedings, to the judge, and of the process in general. When he spoke to Judge Watkins he addressed him as sir. This dynamic is quite different from the other hearings I have attended for those charged in connection with the events of 11 September 2001, and Hadi al Iraqi, an alleged al Qaeda Iraq member. On some occassions detainees have even worn military style fatigues into the courtroom.

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Observers sit under the lean-to overlooking the marina in Guantanamo Bay.

Majid Khan—The Only High Value Cooperator in Guantanamo, Bay

Why is the dynamic different at the Khan hearings? I can guess that it may be because Khan is a cooperator. He is the only cooperator in Guantanamo Bay who is considered a high value detainee, and his lawyers brought this up at the beginning of the hearings and frequently throughout.

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An iguana sits on Glass Beach and looks on while observers cool off in the Caribbean Sea.

In his plea agreement of seven years ago, Khan agreed to serve no more than 25 years in exchange for his cooperation, 19 if the convening authority finds that Khan provides full and truthful cooperation amounting to substantial assistance. His time served began at the time of the plea agreement, which means he theoretically has 12-18 years left to serve, assuming that the agreement holds. There were concerns about this. The source of these concerns had to do with the government/prosecution being upset about the defense’s request for “Brady material”, material that the defense has argued might be used in the pre-sentencing hearing to mitigate the sentence he is awarded by the panel, as the military commission jury is called.

Exculpatory Evidence and Brady, Could it all Fall Apart?

There is a famous case in United States law referred to as Brady, or Brady v Maryland, which is a 1963 United States Supreme Court case that held, “ Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” This issue of Brady material dominated the hearing. Specifically, Khan and his defense team requested Brady material that might be used as a mitigating factor during Khan’s upcoming sentencing hearing. The hearing will take place before a panel (jury), that will decide Mr. Khan’s sentence, 19-25 years – in accordance with the sentencing agreement.

The public does not know what the material is that the defense has requested, or how and why the defense may believe that this material might be used to mitigate his sentence.  However, it likely has to do with the time Khan was in custody prior to arriving in Guantanamo Bay, and possibly the use of enhanced interrogation techniques. This could potentially be used to mitigate his sentence because if Khan was treated badly while in custody then under the Uniform Code of Military Justice, and possibly in the Military Commissions, this in and of itself could be used as a factor to mitigate sentencing. In other words, if someone is tortured, then a sentencing panel could decide, based on that fact, that the defendant should receive a lesser sentence. There is also an important balance between discovery and production of evidence on one hand and the protecting the national security interests of the United States on the other hand. Not to mention that a decision in this case could have further reaching implications, for instance in the 9/11 proceedings where mitigation specialists might seek to use Brady material to get the jury/panel to give a life sentence rather than the death penalty.

Meeting with Khan’s Lawyers

After the hearing I met with Khan’s lawyers and others on his defense team. We gathered at their living quarters and shared snacks and refreshments. At this meeting I noted they were in a unique position relative to the other defense teams I have seen in Guantanamo Bay, and I talked about the different dynamic discussed earlier in this article. A lawyer I traveled with brought up a good point that the government/prosecution appeared to threaten pulling out of the seven year old plea agreement if Khan’s team continues to request Brady material, and noted that this should not be sufficient grounds to pull out of the plea agreement because the only permissible reason for the government/prosecution to unilaterally withdraw should be for material breech.

Suggestion to Improve the Viewing Experience at the Expeditionary Legal Complex

I have a suggestion to improve the viewing experience for the victims’ family members, non-governmental observers, press, and others viewing the proceedings. These groups watch from a remote viewing facility at Ft. Meade Maryland, and in person at Guantanamo Bay. The problem is that we cannot see the detainee(s) faces. The feed shows only one camera angle from the courtroom at a given time, usually of the person who is speaking.

In person viewing in Guantanamo Bay is helpful because observers and victim family members watch the defendant(s) in person throughout the entire proceeding from the observation box at the rear of the courtroom, while observers at other locations only see the defendants when defendants are portrayed on the feed, so generally only when the defendants are the ones who are speaking in court. Keep in mind that this is all on a 40 second delay. My suggestion is that at least one screen at each remote viewing station in the United States, and at Guantanamo Bay, show a camera angle of the detainee(s) at all times, preferably an angle that shows the face. Keep in mind that, as it stands today, the visual feed only shows a small portion of the courtroom in Guantanamo Bay at any given time, alternating between camera views.

 

Benjamin Hicks

Juris Doctor 2018

Indiana University

Program in International Human Rights Law

Traveling to Guantanamo Bay, Cuba to U.S. Monitor Military Commission Hearings

I am a second-year student at Indiana University McKinney School of Law pursuing a certificate in human rights law. I am traveling to Guantanamo Bay, Cuba, to monitor the hearings of Mr. Khalid Shaik Mohammad and 4 other alleged masterminds of the 9/11 attacks. My job will be to attend, observe, be observed, analyze, critique and report on these hearings. I am representing the Military Commission Observation Project, which is part of the Program in International Human Rights Law of our Indiana McKinney School of Law. Professor George Edwards founded the human rights program and the Guantanamo project.

Travel to Andrews Air Force Base to fly to Guantanamo

I flew to Washington DC yesterday (Friday, 26 April 2019) because our flight to Guantanamo Bay is scheduled to depart from Andrews Air Force Base (Joint Base Andrews), which is located just outside of DC, in Maryland. I stayed at a hotel right across from the base, and took a local taxi from the hotel onto the base, all the way to the Andrew’s Air Passenger Terminal. My grandfather was in the Air Force for many years, so I had been on military bases before (mainly Minot AFB in North Dakota.) While no two bases are the same, I found Andrews similar to other Air Force Bases. When I am on base, I feel the need to be on my best behavior, as everything feels very official.

I arrived at Andrews around 5:30 and checked in for the flight, that was scheduled to depart at 10:00 a.m. The check in process was similar to that at a commercial airport.

Office of Military Commissions NGO Observer Escorts

I immediately met Cathy Nardo, who would be the non-governmental organization (NGO) observer escort for the week the week of hearings, scheduled for 29 to 3 April. Our Indiana program is one of a handful of NGOs that are permitted to send observers / monitors to Guantanamo.

Each time NGOs travel to Guantanamo, they are accompanied by an escort provided by the Office of Military Commissions (OMC). The escort organizes logistics for us at Andrews, on the ground at Guantanamo, and on the flight back to Andrews at the end of the week. At Guantanamo, the escort drives us to where we need to go on the base and helps us acquire the professional and personal items we need on base. The escort also keeps us informed on the schedules of the hearings, and anything else that happens around base, as well as attend the hearings with us.

The check in desk at Andrew’s terminal.

Other NGOs arrive

As 6:00 approached, other NGO observers started arriving. There are six NGO observers on this particular trip. They include, in addition to me, a law student from the University of Toledo, and representatives from the ABA, the September 9/11 Families for Peaceful Tomorrows, the Pacific Council on International Policy, and the National Institute for Military Justice. I each of the observers a copy of Know Before You Go to Guantanamo and Guantanamo Bay Fair Trial Manual: Excerpts, which are Manuals authors by Professor Edwards with the assistance of other Indiana observers. The other observers were very interested in the material contained in the Manualsand were thankful to have been provided them.

BrA fellow NGO observer reviewing her manual.

Briefing from our Escort

Once the NGOs arrived Cathy took us to the children’s play room of the terminal. and gave us a briefing. She began by giving us the schedule for the day. NGOs would be the first to get on and last to get off the plane. She explained that when the plane arrived at Guantanamo, we would take a ferry from the Leeward side of the Guantanamo base to the Winward side where she would take us to the tents where we would live for the week, and then take us to pick up badges we would need to gain access to the courtroom. She briefed us on the areas where photography is and is not allowed and explained the protocol for the Expeditionary Legal Complex (ELC), which is where the courtroom is where the hearings occur.

Our manuals and important briefing information from the escort.

Boarding the Plane

The NGOS did not have to wait much longer to go through security, which felt much more relaxed than going through TSA at a commercial airport. We then waited a short time longer before getting on a bus which took us onto the tarmac, up to the movable stairs that led to the plane. We got off the bus, walked a short distance across the tarmac, and climbed the stairs to board the plane. This was all a new experience for me. I have never been on a tarmac or used stairs to board a plane. It is very different from at the jet bridges used on commercial flights.

As I prepare to depart Andrews, I am feeling many emotions. I am nervous, excited, happy, and a little scared. But I am very much looking forward to the hearings.

Madison Bowsher

J.D. candidate 2020

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

madibowsher@gmail.com  |  madbowsh@iu.edu

My Travel to Guantanamo Bay to Monitor U.S. Military Commission Hearings

My Background

I am a second-year student at Indiana University McKinney School of Law pursuing a certificate in human rights law.

I became interested in Guantanamo Bay during my undergraduate years. I did a large amount of research on the practice of extraordinary rendition and torture of suspected terrorists. This inevitably led me to researching the Guantanamo Bay detention center. I am interested in the balance between human rights and national security I believe this opportunity will give me a first-hand look at how the United States approaches these issues.

My Mission

I will be traveling to Guantanamo Bay from 27April – through 4 May, 2019 to monitor the U.S. Military Commission hearings of Khalid Shaik Mohammad and 4 other alleged masterminds of the 9/11 attacks. My job will be to attend, observe, be observed, analyze, critique and report on these hearings. I am representing the Military Commission Observation Project, which is part of the Program in International Human Rights Law of our Indiana McKinney School of Law. Professor George Edwards founded the human rights program and the Guantanamo project.

Charges Against the Defendants

Mr. Mohammad was captured in 2003 and was held in CIA prisons (“black sites”) before he was transferred to Guantanamo Bay in 2007. Charges against him and his four co-defendants include attacking civilians, hijacking an aircraft, intentionally causing serious bodily injury, and murder in violation of the law of war, and terrorism.


Khalid Shaik Mohammad. The right photo was taken by U.S. forces after his capture. The left photo was taken by the International Committee of the Red Cross at Guantanamo Bay. (https://www.motherjones.com/crime-justice/2011/04/obama-try-khalid-sheikh-mohammed-military-court/)

Preparation

In preparing for my mission I have been researching the case I will monitor. I have also read Know Before You Go to Guantanamo which has helped me know what to expect at the base, along with the Guantanamo Bay Fair Trial Manual: Excerpts. Both the Manuals are produced by Indiana’s Military Commissions Observation Project and are available for download on http://www.GitmoObserver.com. I have spoken with previous observers who have been to GTMO so I can better know what to expect. I have also been exploring the website for the Office of Military Commissions to keep up to date on what has been occurring with the hearings.

Previous Guantanamo Hearings

The front gate at Ft. Meade.

A few weeks ago I traveled to Ft. Meade, Maryland to attend a U.S. Military Commission pre-sentencing hearing in the case against Mr. Majid Khan. The hearing was broadcast by CCTV into a secure room at the Ft. Meade military base.

Mr. Khan pleaded guilty to murder in violation of the law of war, attempted murder in violation of law or war, and spying. He has since been cooperative in giving information to military prosecutors regarding other Guantanamo detainees.

Madison Bowsher

J.D. candidate 2020

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

madibowsher@gmail.com  |  madbowsh@iu.edu

New Military Challenge Coin for Guantanamo Bay Non-Governmental Organization (NGO) Observers / Monitors

Non-Governmental Organizations (NGOs) who travel to Guantanamo Bay, Cuba, to monitor U.S. Military Commission hearings now have a military challenge coin!

The coin reflects the NGO mission, which focuses on transparency at Guantanamo war crimes proceedings.

The Pentagon permits a limited number of NGO representatives to travel to Guantanamo to monitor proceedings. NGOs are the eyes and ears to the outside world on what happens at Guantanamo, consistent with the right to a public trial for all categories of Guantanamo stakeholders. Stakeholders include defendants, prosecution, victims and victims’ families (VFMs), guards, witnesses, media, and others – all who have rights and interests.

Other Guantanamo groups have challenge coins, including the defense, prosecution, the Office of Military Commissions, the Commissions Liaison Group, and different Guantanamo camps and other sub-groups of deployed personnel.

All the Guantanamo coins honor aspects of the military and civilian personnel involved with Guantanamo, and their contributions.

Other side of the Guantanamo Bay NGO Challenge Coin

A brief history of the challenge coin

A challenge coin is a coin or medallion typically created by an organization to demonstrate membership or participation, to honor service, or for commemorative purposes.  Challenge coins are steeped in military and public service tradition, and are often exchanged or distributed during visits, given as an award, exchanged between friends as gifts, or exchanged as collector’s items.

About the NGO Guantanamo coin

The new NGO Guantanamo coin is round, is bronze with white background, and is 3 inches in diameter, much larger than a silver dollar.

On one side, the coin reads “U.S. Military Commissions” (top) and “Guantanamo Bay, Cuba” (bottom).  This side contains a U.S. flag in red, white, and blue, Lady Justice in bronze, and a map of Cuba with a red star placed on Guantanamo Bay.

Lady Justice holds the Scales of Justice in one hand and a sword in the other. A blindfold over her eyes represents that justice should be applied impartially.

The opposite side of the coin lists the 6-part mission of Guantanamo NGOs – to attend, monitor, be seen, analyze, critique, and report on the Guantanamo hearings.

Most aspects of the mission statement are obvious – transparency as fundamental to the right to a fair trial obviously requires monitors (or observers) to be present and to observe, and to analyze what they observe, and critique (positive / negative) and report.

The reasoning behind the “be seen” portion of the NGO mission may not be so obvious, but it is very important. The Military Commission Act, the U.S. Constitution, international law, and regulations and rules related to the Guantanamo proceedings all call for a public trial. The defendants sitting in the courtroom should be able to turn around and look into the observation galley and see a slice of the public. The defense lawyers and prosecution should be able to see a slice of the public, and the judges and jury and victims and anyone else should be able to see the NGOs, who represent the public. The presence of the NGOs, and their visibility – their ability to be seen – goes to the issue of not having secret trials (with secret trials being prohibited under U.S. and international law).

The visibility of NGOs might give comfort to some trial participants who might feel heartened that if there are any improprieties, NGOs might bring such improprieties to the attention of the outside world. The visibility of some NGOs might cause other actors to be extra diligent in doing their jobs, fearing that NGOs will report improper behavior.

The background on this side is also white, with a design of the Scales of Justice in the middle.  The edge surrounding the coin reads, “At Guantanamo Bay justice must not only be done, but must be seen to be done” (top), and “Non-Governmental Organizations” (bottom).

Availability of the Guantanamo Bay NGO Coin

 A limited number of Guantanamo Bay NGOI coins were produced, and are available for $15. If you are interested in acquiring a coin, please contact The Gitmo Observer at gtmo@indiana.edu or gitmo@indiana.edu. Coins can be shipped to you.

Both sides of the Guantanamo Bay NGO Challenge Coin

End Note: This NGO Challenge Coin was designed by the Military Commission Observation Project of Indiana University McKinney School of Law, directed by Professor George Edwards, with input by and consultations with numerous individuals, including many involved with other Guantanamo NGOs and other Guantanamo stakeholder groups. No coalition or union of Guantanamo NGOs exists, and there was no vote among NGOs as to the design or production of the coin. Thus the coin is not an “official” coin of the NGOs, but one that any NGO or NGO representative might use if they wish, particularly if they believe that the coin reflects their mission.