The Indiana University McKinney School of Law’s Military Commission Observation Program nominated me to the Pentagon for me to travel to Guantanamo Bay, Cuba, to monitor U.S. Military Commission hearings. The hearings I was assigned to were in the case against 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon. The Pentagon granted me clearance to travel to Guantanamo from 21 to 28 September 2019
Before my trip, I only knew of Guantanamo from the news, documentaries, and movies. I never thought or imagined that I would have the opportunity to be personally present in Guantanamo as an NGO observer. There are so many aspects of this visit to reflect on but I will confine my discussion to the following.
This blog has 6 Parts. Part I describes my Guantanamo mission. Part II describes the substance of the hearings against the 5 alleged 9/11 masterminds. Part III are some of my personal reflections. Part IV describes the courtroom and the hearing setting. Part V discusses my personal experiences at Guantanamo. Part VI describes my last day at Guantanamo, 28 September 2019.
I included that my mission to Guantanamo was a very enriching experience, and I recommend it to any Indiana McKinney faculty or staff member, student or graduate.
- My Guantanamo mission
I have long been interested in topics related to human rights, including transparency, ensuring a fair trial, and striving to achieve justice. This is what initially sparked my interest in the Guantanamo Military Commission hearings.
My mission as a Non-Governmental Organization Observer (NGO) representing Indiana University McKinney School of Law, was to attend, observe / monitor, be seen, analyze, critique and report on the Guantanamo proceedings.
“What happens at Guantanamo Bay should not stay at Guantanamo Bay.”
To fulfill this mission, I acknowledged my responsibilities to be independent and objective in my observations and to try to gain a good understanding of how the Guantanamo proceedings are being held, and an understanding of whether the rights and interests of all Guantanamo stakeholders were being afforded to them.
- The substance of the hearings
Trial date set for the long-running case.
The 9/11 case is one of the longest ongoing cases of the 21st century, having begun with an arraignment in 2012, which followed an earlier version of the case that was dismissed.
On 5 May 2012, the five defendants; (1) Mr. Khalid Shaikh Mohammad, (2) Mr. Walid bin Attash, (3) Mr. Ramzi bin al Shibh, (4) Mr. Ammar Al Baluchi, and (5) Mr. Mustafa Al Hawsawi, were charged with war crimes. After almost eight years of pretrial hearings, Judge Cohen, the current presiding military judge who is the third military judge to be assigned to the case, set a trial date for 11 January 2021.
While we waited outside the courtroom during court breaks, there was open speculation about whether this trial date would stick. But, it seems that the prosecution and defense teams must prepare the case for trial to commence on that date.
In addition to the prosecution and defense preparing, preparations must be made by the government, that will be responsible for the logistics of a large trial that will attract hundreds of new people to a small, remote military base that was not originally designed for such a proceeding and still lacks some basics needs, such as housing for all the media who will likely be interested in covering the trial.
Motion arguments, testimony
During the week I was in Guantanamo, Judge Cohen heard arguments on several motions and heard testimonies of several witnesses. They are outlined as below:
- Motion to Suppress Defendants’ Coerced Testimonies.
The five defendants were captured between 2002 and 2003 and were transferred to Guantanamo in 2006. The evidence shows that between the time they were captured and the time they were taken to Guantanamo, these five men were held in secret Central Intelligence Agency (CIA) prisons known as “black sites”. The CIA has invested over 81 million dollars and enlisted two psychiatrists, James Mitchell and Bruce Jessen, to design “enhanced interrogation techniques” (EITs) (that defense counsel and others refer to as “torture”) used against these defendants and others held at the CIA black sites. Both psychiatrists have been called to testify in January 2020 in this 9/11 case.
We heard witness testimony connected to the motion to suppress alleged coerced statements (involuntary statements obtained by enhanced interrogation/torture). This week, we observed the testimony of:
- Special Agent Stephen McClain. He was part of the Criminal Investigative Task Force (CITF) that was tasked to get “clean” testimony in 2007 from defendants to be used later in court. Agent McClain’s testimony was taken via CCTV. The questions asked were about whether interrogation was conducted in a voluntary, non-hostile way, and whether Article 31 from the Uniform Code of Military Justice UCMJ (right to remain silent, be informed, right to counsel, and any statement can be used against you) was given to the defendants.
- Judge Bernard E. Delury. He presided at the 2007 Combatant Status Review Tribunal (CSRT) tribunal hearings for each of the five defendants. The questions asked of him were focused on the competency and the demeanor of the defendants, whether the 2007 tribunal was conducted fairly, and whether any of plea deals or confessions were made involuntarily. “CSRTS were not criminal proceedings,” Judge Bernard E. DeLury stated that the purpose of the CSRT service in Guantanamo Bay in 2007, over which he presided for all five defendants, was not to decide guilt or innocence. He stated that the tribunal was an administrative fact-finding tribunal. Four of the five defendants attended the CSRT. Mr. Ramzi bin al Shibh chose not to attend. Judge DeLury might be called again to the witness stand to be examined by other defense counsels (maybe via CCTV).
- Mr. D.J. Fife, Latent Print Examiner. Mr. Fife, of the FBI, was the fingerprint examiner in the clean team and was present at the 2007 tribunal. The questions asked of him were around “known fingerprints” and “latent prints”, when and how the defendants’ fingerprints were taken, and the chain of custody.
Both the prosecution and the defense examined the witnesses. The defense presented arguments supporting the claim of torture and coerced statements. On the other hand, the prosecution presented arguments supporting that 2007 interrogations were conducted voluntarily, that defendants could’ve stopped the integrations at any time and that their demeanor was appropriate and had no sign of sociological issues. There were also classified sessions which we, the NGOs, were not permitted to observe and where more information was presented. The Judge has not made a decision yet about the motion to suppress.
- Motion to compel the prosecution to meet a discovery request.
The defense team asked the judge to compel the prosecution to meet a discovery request. Defense attorneys argued that they can’t meet their deadlines or submit motions if the prosecution does not turn over discovery as required, and the government keeps withholding information: “I don’t want to spend another 10 years on this case” said Mr. Walter Ruiz, lawyer for one of the defendants, Mr. Mustafa al Hawsawi.
On the same topic, defense attorneys argued the prosecution over-redacted documents, and the classification and declassification of information with no clear guidance makes the defense job very challenging.
During the hearing, I noticed that the defense attorneys when examining witnesses would often point out they intended not to ask questions related to classified/or national security information and that the witness has the option not to answer questions that would call on them to reveal classified/ or national security information.
- Mustafa Al Hawsawi’s medical condition.
Mr. James Harrington, Ramzi bin al Shibh’s lawyer, asked Judge Cohen judge to recognize the ongoing after-effects of torture on his client. He said that Mr. al Shibh still hears noises, feels vibrations, itches, and pins and needles on his body. Mr. al Shibh believes that someone is doing this to him. Mr. Harrington also mentioned that having a psychiatrist meet with Mr. al Shibh is not an option, because Mr. al Shibh is still traumatized by the negative experiences he had in the black sites by the psychiatrists.
The prosecution objected, saying that there is no evidence to prove what Mr. al Shibh is arguing and that there is no need to re-litigate this issue.
- Motion to compel Mental Health Evaluation on Ammar Al Baluchi
The prosecution submitted this motion in response to the defense’s argument that Mr. al Baluchi has developed “learned helplessness”. Defense Counsel Mr. Connell objected to this request on the basis that there is no need for more mental health examinations of his client. Mr. Connell added that his client has been subjected to at least 400 psychological evaluations and there is no need to have 401 evaluations. The prosecution objected and said that none of the previous psychological evaluations were forensic.
The Judge has not decided on this motion.
- Other logistical and scheduling matters were presented to the judge mainly by the defense teams:
- The defense argued about “poor conditions” where the defense lawyers meet with their clients, “Camp Echo II”, and that because of a recent storm, the court feed was cut off in the defendants ’ rooms;
- The poor condition of defense lawyers’ offices. The prosecution responded and promised to provide a workable solution;
- The number of days needed to examine the coming witnesses was discussed. It is expected that examining James Mitchell will take over a week because of the intensity of the documents and that all five defense lawyers and prosecution will want to ask him questions;
- Scheduling hearing days and taking out Ramadan from the schedule;
- The defense team asked the judge to consider the defendants’ emotional effect of staying in one room for ten hours with the person who tortured them.
- Personal reflections
Article 11 of the Universal Declaration of Human Rights states:
“Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to the law in a public trial at which he has had all the guarantees necessary for his defense.”
Thus, according to international law, everyone is presumed innocent until proven otherwise in a court of law.
During the hearings on of the prosecutors argued this: “The man on my left [pointing at Khalid Sheikh Mohammed] made a choice and he is the reason we are here”.
That prosecutor was responding to an earlier statement made by Ms. Rita Radostitz, Mr. Khalid Shaikh Mohammad’s lawyer:
“The US government has made some choices, they chose to put the defendants in black sites, to torture them, and to bring and trial them in Guantanamo, and they need to take responsibility”.
Ms. Rita Radostitz later responded to the prosecution pointing out that the presumption of innocence is the core principle of the American judicial system.
Without going in details and pointing at who violated what, observing this case made realize that the decisions this court makes and whatever are the outcomes of these proceedings will not just affect this case, but also will influence the future prosecution of alleged war criminals in Guantanamo and around the world.
Challenges in this case
There are many challenges this case faces. One of those main challenges is the “Classification of information and over redaction of documents.” Just recently the government has unclassified three completely redacted pages, makes me question the basis in which information is considered classified. The redacted documents are here: https://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(AE286EE(MAH)).pdf
It is expected, especially in a high level and sensitive proceedings such as the one before us, that the government may find a need to classify and redact information from the public for national security reasons. Nonetheless, it is crucial to ensure that it is not abused, especially considering that national security is defined by governments, which is not necessarily unified and may result in delay if not obstructing justice.
Torture was another vital focus of the hearing. Though prosecution did not directly deny nor agree to government torturing defendants, It was alarming to learn what the defendants endured in the black sites, according to statements made in court and government documents available to the public. According to Mr. Gary Sowards, Khalid Sheikh Mohammad’s defense attorney:
“Mr. Mohammed was in continuous government custody for four years, was hung naked in his cell, deprived of sleep, anally raped and was subjected to 183 mock executions, that police had kidnapped and abused his children and threatened to kill his children.”
I believe that nothing justifies this type of torture, where government spent millions of dollars to design what they call “Enhanced interrogation” and implement it on people most of whom were released after with no charge.
- The hearing setting
One of the things I wanted to observe during my visit is the setting of the military commission hearings and how it is being held. And whether it is different than the setting of criminal hearings of sensitive and classified nature conducted in the United States.
The Observers were seated in a sound-proof gallery separated by a glass window at the back of the courtroom (as shown in the photo). The observing gallery room included NGOs/media observers and the victims’ family members. Both groups were separated by a divider (a curtain). The victims’ family member are chosen based on a lottery system.
Every morning in the gallery before the hearing starts, one of the guards read out the observers’ rules which included no sleeping, no laughing, being respectful, and no doodling or drawing.
Before we entered the gallery, we went through a security check, where our bags were checked and all types of electronics (USBs, chargers, cameras, etc.) were left in a locker at the entrance.
Through the glass window in the gallery, we could see the actual hearing room and what was happening, the judge, defendants, defense attorneys, prosecution, military personnel, and others. We had five TV monitors in the gallery which broadcast the hearing on a 40-second delay. At first, it felt strange, but I got used to it with time. It is startling how long 40 seconds can feel.
Through the glass, we could see the defendants accompanied by military guards to the courtroom. The defendants were dressed in civilian clothes.
One of the things I found interesting was seeing the female lawyers wearing hijabs (headscarf). While talking to observers and lawyers, we came to know that the reason female lawyers wore it is out of respect to their clients. Though it might not be a very compelling reason for many, I think it is a good approach to build trust and establish a relationship between a lawyer and a client.
Hearings usually run Monday through Friday. It starts at 9:00am to 12:00pm or 1:00pm. Depending on the pace of the day, and whether there was a classified session or not, the afternoon session usually starts at 2:15pms. We took multiple recesses in between.
Because of the thunderstorms during the week, we were told that some of the court facilities experienced water leakages, which caused some delays in transporting the defendants to the courtroom. Also, the audio feeds were affected in the media room and in Camp Echo II where defendants can watch their hearings if they choose not to attend.
Not all defendants decide to be present in every hearing, and so, over time, the commission has developed a waiver form for the defendant to sign if he does not wish to be present at the hearing. It is for the judge to decide whether the defendant has voluntarily waived his right to attend the scheduled hearing. This happened several times during the week I was at Guantanamo, and every time an army major (the Staff Judge Advocate – the lawyer for Camp 7, which is the secret camp where these 5 High-Value Detainees (HVDs) are being held) will take the stand and be asked by the judge whether the absent defendant wants to attend and if defendant signed the waiver. The judge also asks the lawyer if they have any objection to the waiver.
- My personal experience in Guantanamo
As an individual who only knew Guantanamo from news and movies, I imagined the place to be a big, deserted land-prison, with high fences and military personnel everywhere. The place was not exactly what I imagined. You still can see the desert, high fences, and military personnel everywhere, but not necessarily in their uniforms. There is definitely another side (other than the prison) of life in Gitmo.
The moment you step out of the small Guantanamo airport, you get the vibe of a small town.
Weather and Stores.
The weather is typical Caribbean weather, where it’s hot and humid most of the time, with some rain. You can find pretty much everything you would find in a small town in another country. There is one café that serves Starbucks coffee, one McDonald, a couple of Subway and one big grocery store (Navy Exchange NEX).
We spent the first two days in Guantanamo touring the base and exploring its facilities. We visited several beaches, including Glass Beach and Cable Beach. We also went to a place called “Windmill Hill” where you can see most of the Base. We were asked not to take pictures in certain places and certain directions. We drove by Camp X-Ray (the camp where the defendants were initially brought in January 2002, wearing orange jumpsuits). It is currently closed and from the look of it, there is nothing left but the recollection of those who were detained and those who were guards there.
The more time you spend in Guantanamo, the more you start noticing a lot of laborers from third countries, e.g. the Philippines, Haiti, and Jamaica. We were told by our escorts that these third-country workers are paid very little and that tipping them is very common. This made me question labor rights and fair wages on top of everything else.
Cubans at Guantanamo
There are not many Cubans left on the base. The ones that are still there are old now and have been placed in a homecare facility.
You also see families who live in GTMO with their kids. Yes, there are children in Guantanamo, along with a school that accommodates all grades up to high school.
Our living conditions at Guantanamo
The living for me and other observers/monitors at Guantanamo were decent, not great nor bad. The air conditioning is kept very cold inside the living quarters – which are big tents – so animals like iguanas and banana rats (which are very common in Guantanamo) do not come inside the tents.
Bathrooms and showers, on the other hand, were questionable. Because of the constant rain, we had during the week, one day the female bathroom tent was completely shut down.
A good tip for future observers is to shower at the Guantanamo gym, which most of our group ended up doing for the rest of the week. It is a good facility and you can join some gym classes if you have the time.
We had an escort with us most of the time. They helped us commute from one place to another, and also addressed our requests and answered questions.
There are several food options (not many) at the base. My favorite was the food served at the Mongolian barbecue, held every Thursday night. You pick your veggies and protein and then head to the grill for the chef to cook your selection with your choice of rice or noodles.
The base also has sanctuary spaces for people on the base to practice their religions. We visited the Chapel and I visited the Mosque where I observed the Friday prayer and spoke to a couple of interrupters who work at the base.
Who were the other observers/monitors with me?
The week I was at Guantanamo, NGO representatives were present from the New York City Bar Association, University of Toledo College of Law, Judicial Watch, Human Right First, National Institute for Military Justice, and Georgetown University School of Law. I enjoyed spending time with them, as every one of them had different, very diverse backgrounds and observations on the proceedings.
- My last day in Guantanamo Bay – 28 September 2019.
It was time to say goodbye and head back to the U.S. It was only one week, but it was enough to leave me with a profound impression that I will never forget.
I landed at Guantanamo with mixed feelings, and I had mixed feelings when I returned at the end to Joint Base Andrews (Andrews Air Force Base) in Maryland.
It was good to be back home and reflect on everything that I have learned. I do not know if I will go back again to Guantanamo, but I look forward to seeing how the 9/11 case unfolds in the coming pre-trial hearings and the coming 2021 trial.
Overall, it’s been an incredibly enriching experience. It was overwhelming in parts especially when I heard about the extensive enhanced interrogation techniques/torture that the defendant endured. But also, it was promising to see so many people working tirelessly to defend the defendant s’ rights and ensuring justice is served.
Today, after being held for at least 17 years without a court conviction, there is finally a trial date set for January 11, 2021.
Despite the lack of political consensus to shut down Guantanamo and the unclear future of the remaining uncharged detainees in Guantanamo, and regardless of innocence or guilt; every prisoner is entitled to basic human rights: access to justice and a fair trial, right to dignity and not to be tortured, access to legal representation.
It is unclear what the outcome of this trial will be, but it is certainly will impact current and future prosecutions involved alleged terrorists around the world.
Master of Laws (LL.M.), International Human Rights Law Track (2019)
Military Commission Observation Project Trial Observer / Monitor
Program in International Human Rights Law
Indiana University McKinney School of Law
October 27th, 2019