I arrived at Guantanamo Bay 3 days ago to monitor U.S. Military Commissions, but so far, the hearings have been delayed / postponed until Wednesday, 9 March. Because of the delays, the other 5 observers and I have been doing other things during the time that the pre-trial hearings would have been taking place.
This morning I woke up early to go on a run with two of the other NGO observers. The three of us ran about 2.25 miles around the Camp Justice area, along a beach-front road that goes by one of the most beautiful beaches at Guantanamo Bay, Cuba, Glass Beach (described later in this post).
After the run, I showered in the shower facilities provided at Camp Justice (photos from a previous blog post) and then ate breakfast with the other 5 observers at the Galley. Because there were no pre-trial hearings today, the other 5 NGO observers and I, with the help of our escorts, planned the following itinerary for the day:
- A “windshield tour” (driving tour) of Guantanamo Bay. Our escort drove us down the main roads of Naval Station Guantanamo Bay and drove us through some of the different housing neighborhoods. I did not photograph the houses during this driving tour.
- A visit to the local radio station (Radio GTMO, described more later in this blog post)
- Snorkeling at Glass Beach (described more later in this blog post),
- A Question and Answer session with members of the al Baluchi (“AAA” aka “Triple A”) defense team and with the Chief Defense Counsel (described more later in this blog post).
Radio GTMO is a radio station that broadcasts in English on the NSGB (Naval Station Guantanamo Bay). Radio GTMO was established in 1940 and is run by military personnel. The station houses one of the largest military collections of vinyl records. According to our tour guide, the vinyl collection is worth approximately $1 million and was acquired over the years that it has been in operation when special military base vinyl records were produced in order to create the library of music that the DJs were able to broadcast.
During the tour, the tour guide, a member of the military wearing civilian clothing (I did not ask which branch the guide served in) showed us 6 NGO observers the broadcast room (pictured), a small recording studio (not pictured), and the vinyl collection of Radio GTMO (pictured). At the end of the tour, we were taken to the souvenir section of the radio station, where a variety of T-Shirts, coffee mugs, and other small souvenirs are sold. I purchased a T-shirt for my son and a coffee mug for my wife, both of which contain the text “Rockin in Fidel’s Backyard.”
After our tour of Radio GTMO, our escort took us to get lunch. After lunch, our escort drove us 6 NGO observers to Glass Beach, one of the beaches at Guantanamo Bay, Cuba. Our escort told us that Glass Beach got its name because of the large amounts of beach glass that can be found there.
Us 6 NGO observers snorkeled at Glass Beach and saw some amazing fish, colorful rock formations, and coral. When I set off from Indianapolis last Friday, 4 March, I did not expect to spend today snorkeling. I thought I would be observing the pre-trial hearings that were originally scheduled to start today. It feels a bit strange to be in “vacation mode” today, but at least all of us NGO observers were able to schedule a meeting with members of the “AAA” defense team for later today.
When we finished snorkeling at Glass Beach, our escort took us back to Camp Justice where we showered and got ready for our on-the-record meeting with members of the “AAA” defense team at 4:00 PM.
Meeting the Defense
The “AAA” defense team had invited us 6 NGO observers to a barbeque dinner and informal meeting yesterday, Sunday, 6 March (described in a previous blog post). At the end of the dinner, we got contact information for one of the defense attorneys, and asked to schedule a more formal meeting to discuss some of the issues that are expected to be argued during the pre-trial hearings this week. Earlier today, a member of the defense team reached out to one of the other NGO observers to formally schedule a meeting today, 7 March 2022 at 4:00 PM.
The Q & A meeting with the defense team took place in the NGO Resource Center in Camp Justice. The meeting consisted of all six NGO observers asking questions, and six members of the defense (three military team members, and three civilians) answering our questions. Questions ranged from broad questions about the 9/11 case generally, to more specific questions about the motions on the docket for the upcoming pre-trial hearings. Below is a selection of the questions and answers that stood out the most to me.
Questions and answers have been paraphrased and are not direct quotes.
Q: What is the role of the Chief Defense Counsel?
A: The Chief Defense Counsel, now General Thompson, does not represent any specific client, but instead acts as a resource for each of the defense teams that represent each of the defendants at Guantanamo Bay being charged. The Chief Defense Counsel helps to manage resources and funds necessary for the effective defense of the defendants.
Q: Will the pre-trial hearings still begin on Wednesday, 9 March, 2022? (The hearings were originally scheduled to begin today, 7 March, 2022. However, on Friday, 4 March, I was informed that the hearings had been postponed until Wednesday, 9 March.)
A: The start of the pre-trial hearings is still somewhat in question. The judge has indicated that the pre-trial hearings will still begin on Wednesday. There is a possible scenario where judge McCall holds abridged hearings instead. Abridged hearings would mean that the hearings are only in session for a few hours that day, instead of having a full day of hearings, which could last around 8 hours.
Q: What is the difference between the Convening Authority and the Judge in the Military Commission trial?
A: The Convening Authority has a kind of governor and prosecutor authority combined together. The judge listens to the oral argument and has a similar authority to a judge in a US federal court. (I later went online to read more about the Convening Authority on the Office of Military Commissions website: https://www.mc.mil/aboutus/organizationoverview.aspx)
Q: What kind of treatment does the defense want Mr. al Baluchi to receive?
A: The defendant wants to receive medical treatment that is similar to the medical treatment given to individuals who have received Traumatic Brain Injuries (TBI). There is a treatment plan that the defense would like to be implemented by the treating doctor for the 9/11 defendants. However, this treatment plan has usually not been implemented by the doctor on-site.
Q: What is the defense argument about the “meaningful separation” between detention at the CIA black sites, and detention at Camp 7? What does the prosecution define as “meaningful separation?” (The 5 men were held in CIA black sites and subjected to enhanced interrogation techniques. While at these black sites, these men made statements. In 2006, the 5 men were moved to Guantanamo. They were interrogated and made statements.)
A: The defense argues that the so-called Enhanced Interrogation (torture) of the defendants that began at the CIA black sites, in effect, continued once the defendants were transferred from the black sites to Guantanamo Bay. The defense argues that, taken as a whole, there was a continuing course of conduct in the interrogation of the defendants, such that the interrogation/torture of the defendants at the CIA black sites has tainted any confessions/admissions/statements made by the defendants after being transferred to Guantanamo Bay cannot be used in the trial, because the effect of the interrogation/torture was so extensive that the statements cannot be reliable and should be considered as coerced statements.
According to the defense, the prosecution defines “meaningful separation” as a change in time, place, and questioner. The prosecution thus argues that statements made by the defendants after they were transferred to Guantanamo Bay can be used in the trial because the statements were made in a different time, place, and with a different questioner than any statements from the CIA black sites.
Q: What is the defense and prosecution argument about when hostilities began between the United States and Al Qaeda?
A: According to the defense, the prosecution argues that hostilities began in 1996 when Osama bin Laden released a statement declaring the United States an enemy.
The defense said that they disagree the prosecution, and that hostilities did not begin until 7 October 2001, when President George W. Bush announced the beginning of strikes against Al Qaeda camps (https://georgewbush-whitehouse.archives.gov/news/releases/2001/10/20011007-8.html).
Q: Why does defining when the beginning of hostilities was matter for this case?
A: According to the defense, this matters because whether or not there was an armed conflict at the time of the 9/11 attacks has an effect on whether or not a military commission is the appropriate place to try the defendants, as opposed to a civilian criminal court.
As I write up my thoughts from today, I am thinking about how many issues which, on the surface, appear simple, are still being argued in pre-trial hearings to the court. For example, the court has still not determined when hostilities began between the United States and Al Qaeda. And while the date when hostilities began may seem to be insignificant at first glance, this determination may in fact have a huge impact on the whole legitimacy of even using the Military Commissions as the proper venue for trying the defendants.
I am glad that I was able to meet with the defense team for “AAA.” However, I would like to meet with defense counsel for other defendants. I would also like to meet with the prosecution. The other NGO observers and I are working with our escort contacts to try to arrange more meetings this week. Hopefully we will be able to set up meetings with other defense teams and the prosecution.
J.D. Candidate, 2022
NGO Observer, Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University McKinney School of Law