George Edwards is Professor of Law & Faculty Director, Program in International Human Rights Law at Indiana University McKinney School of Law. He is Founding Director of the Law School's Military Commission Observation Project ("MCOP" or "The Gitmo Observer"). Professor Edwards is also Special Assistant to the Dean for Intergovernmental and Non-Governmental Organizations. The Guantanamo Bay Reader will be published soon.
The United Nations is poised to question the U.S. about how COVID-19 affects prisoners at Guantanamo Bay, which has had an undisclosed number of residents who contracted COVID-19. Prisoners, their lawyers, human rights groups, and U.S. Senators have expressed grave concern about Guantanamo prisoners’ potential exposure to the coronavirus, and questioned the adequacy and transparency of protocols to prevent and treat COVID-19 at the remote island facility holding 40 aging, vulnerable prisoners.
U.S. government officials are scheduled to appear before the UN Human Rights Council and are expected to testify that during the four-year Trump Administration, the U.S. has fully complied with all its human rights law obligations in the U.S., and elsewhere, including Guantanamo.
This testimony is part of a “Universal Periodic Review” (UPR), which each country must periodically undergo. This is the 3rd UPR hearing for the U.S., following UPRs in 2010 and 2015. This U.S. UPR hearing is scheduled to begin Monday, 9 November 2020, in Geneva, Switzerland, at UN European Headquarters.
Law Students / Non-Governmental Organization (NGO) Joint UPR “Shadow Report” to the Human Rights Council
Law students and faculty from three law schools in three countries, acting under a non-governmental organization (NGO) umbrella, submitted to the Human Rights Council a Joint UPR “Shadow Report” titled “Deprivation of Guantanamo Bay Prisoner Rights During COVID-19“.
The Report focuses on 6 specific human rights violations the U.S. has perpetrated and continues to perpetrate against Guantanamo prisoners: (1) arbitrary, prolonged detention; (2) torture; (3) denial of health rights; (4) interference with privacy and family life; (5) denial of a fair trial; and (6) denial of remedies for human rights violations. Furthermore, the Report explains how COVID-19 exacerbates these rights violations.
The Human Rights Council does not permit NGOs to speak on the floor of hearings during this week’s portion of the U.S. UPR. However, the NGOS are permitted to speak on the floor at the next round of the U.S. UPR, which is scheduled for February 2020. Students from this 3-country NGO Team will be nominated to deliver the student Team’s oral remarks on the floor of the United Nations UPR follow-up hearings on the U.S., in Geneva in February.
First United Nations hearing on U.S. since DJ Trump lost the election
This will be the first United Nations hearing concerning the U.S. since the presidential election held on 3 November 2020, and the first post-election opportunity for the outgoing Trump Administration to comment on whether and the extent to which U.S. has complied with its human rights obligations during the full four-year Trump Administration.
There was speculation that if the incumbent lost the U.S. Presidency, then this coming week’s UN hearings on the U.S. would be deferred until President Elect Joe Biden and Vice President Elect Kamala Harris assume office on 20 January 2020.
Issues covered at this UPR hearing
This UPR hearing will be broadly focused, highlighting a range of alleged human rights violations by the U.S. in many areas.
Topics for the hearing include Guantanamo Bay and torture. Additional topics include violence against women; human trafficking; systemic racial discrimination and racial profiling by police and other governmental authorities; general discrimination based on race, sex and religion; hate crimes; the death penalty; juvenile sentences without parole; gun violence; “indigenous issues”; homelessness; health care; migrants; the environment; gender equality; privacy; sexual violence in the military; and migration policy and treatment of migrant children.
The proposed Democratic Party Platform 2020 that was released on Monday, 3 August 2020, calls for the closure of Guantanamo, in firm and certain terms: “We will close the detention center at Guantanamo Bay”. (page 82) The full 92-page Platform can be downloaded below.
This carries on the pledge made by Presidential candidate Barack Obama before he was elected in 2008, and his efforts to close Guantanamo after his inauguration on 20 January 2009 until he left office 8 years later.
The Guantanamo reference appears in a section of the Platform titled “Terrorism” (pages 81-82).
Terrorism
So long as violent extremists continue to plot attacks on our homeland and our interests, Democrats will maintain a vigilant focus on counterterrorism.
Democrats recognize that the threat landscape has evolved dramatically since September 11. Our counterterrorism priorities, strategies, footprint, and tools should shift accordingly, including to respond to the growing threat from white supremacist and other right-wing terrorist groups.
Democrats will sustain the global effort to defeat ISIS, al-Qaeda, and their affiliates. We will ensure that the world is equally committed to the difficult task that follows military success: dealing with the underlying conditions that allowed violent extremism to flourish in the first place. We will work with our partners to prioritize diplomatic, law enforcement, and intelligence tools, to reinforce our objectives instead of distorting them.
Democrats believe that our rhetoric, policies, and tactics—and those of our counterterrorism partners—should never serve as terrorist recruiting tools. We will always work to avoid civilian casualties, and we will not weaponize counterterrorism for anti-immigrant purposes. We will reject the targeting of Muslim, Arab, and other racial and ethnic communities based on their faith and backgrounds at home and abroad. We will close the detention center at Guantanamo Bay, enhance transparency, oversight, and accountability in counterterrorism programs and operations, and safeguard civil liberties and the rule of law.
Delegates to the 2020 Democratic National Convention will vote on the Platform remotely, from 3 – 15 August 2020, with all votes due to be cast before commencement of the Convention, which is scheduled for 17 – 20 August 2020.
Download the 92-page Democratic Party Platform 2020 here:
Professor Edwards (right) with one of his Indiana law students (Ms. Sheila Willard) at Guantanamo Bay, Cuba. (file photo)
It’s Sunday morning, and I am scheduled to fly to Guantanamo Bay, Cuba, tomorrow morning, Monday, 19 August 2019.
But, my years of traveling to Guantanamo have taught me that I could arrive at Joint Base Andrews (Andrews Air Force Base) tomorrow, and the trip could be cancelled. I’m not talking about a cancelled flight because of a plane’s mechanical issue, with everyone waiting for a replacement plane, or a possible weather delay. Instead, the 10 days of U.S. military commissions I am slated to monitor at Guantanamo could be scratched, with there being no need to fly down this week.
In the over 15 year since I first became involved with
Guantanamo, I learned to expect the unexpected.
Hadi al Iraqi / Nashwan al Tamir, the alleged 2nd highest al Qaeda member in U.S. custody. Professor Edwards is scheduled to attend his hearings at Guantanamo from 19 – 29 August 2019.
This article describes what is expected to happen during the upcoming week of hearings in the case against a Guantanamo detainee the U.S. government calls Hadi al Iraqi, but who prefers to be called by what he says is his birth name, Nashwan al Tamir.
But first, I’ll explain how I got booked on this flight
to Guantanamo.
My Guantanamo mission
I was a professor of law at Indiana University McKinney School of Law when in 2003 a Pentagon officer asked if I would do a project related to over 650 detainees then being held at Guantanamo. My Indiana students and I researched rights afforded to defendants at Nuremberg and Tokyo after World War II, thinking that at a minimum, rights afforded to defendants then should be afforded to any detainees facing trial by military commission at Guantanamo.
After that project ended, my Indiana students (and Stetson law students) and I worked on the cases of Australian David Hicks (whose 2007 proceedings became the first completed U.S. military commission since World War II), and Canadian Omar Khadr (who was 15 when picked up, who was then taken to Guantanamo and charged).
Fast forward, and I founded the Military Commission Observation Project at Indiana, through which we send faculty, staff, graduates and current students to Guantanamo to monitor hearings, exploring rights afforded to all Guantanamo stakeholder groups. Stakeholder groups include defendants, victims and their families, Guantanamo guards, defense and prosecution lawyers, witnesses, media, observers / monitors, and others. (For more information on different categories of Guantanamo stakeholders, see www.GuantanamoBayReader.com).
Guantanamo Non-Governmental Organization (NGO) Observer Challenge Coin — with our Stated Mission — To Attend, Monitor, Be Seen, Analyze, Critique & Report
Our Project spells out the mission of Guantanamo Observers / Monitors as follows: To attend, monitor, be seen, analyze, critique and report on Guantanamo proceedings.
For our Guantanamo Bay Non-Governmental Organization (NGO) Observer / Monitor Challenge coins, see here.
Hadi / Nashwan is an alleged high-level member of al
Qaeda Iraq who allegedly liaised with the Taliban and perpetrated war crimes in
Afghanistan and Pakistan in 2003 – 2004. The government claims that he is the
second highest ranking al Qaeda member in U.S. custody.
He is charged with allegedly
commanding al Qaeda and Taliban insurgents who attacked U.S. and allied forces in
Afghanistan and Pakistan after the U.S. and coalition invaded after 9/11.
The specific war crimes
charges against him include denying quarter, attacking protected property,
using treachery or perfidy, and attempted use of treachery or perfidy. Also, the
US alleges that he conspired to commit war crimes. Allegedly, persons under his
command planted IEDs that killed coalition soldiers on roads, fired at a U.S.
military medical helicopter, and attacked civilians including aid workers.
He was taken into
custody in 2006, arrived in Guantanamo in April 2007, and arraigned in June
2014 on war crimes charges that carry a maximum sentence of life in prison.
For at
least the last two years, he has suffered from degenerative disc disease, for
which he has undergone at least 5 surgeries by military doctors at Guantanamo.
This
military judge has acknowledged that the medical condition causes pain and
extreme discomfort for Hadi / Nashwan, making it difficult for him to sit in a
regular chair in the courtroom for extended periods. He has used a special seat
in the courtroom, and has been wheeled into the courtroom in a hospital bed.
Furthermore, a special cell that can fit a hospital bed has been constructed
next to the courtroom, for him to use during court breaks.
His trial
was scheduled to begin in February 2020. It is unclear whether it will go forward,
given his health, and given that several weeks of hearings in his case were
suspended during his defense counsel’s 12-week maternity leave (including
cancelled sessions for June and July 2019).
What is expected to happen this week?
This week, the judge will likely deal with any issues related to Hadi’s / Nashwan’s medical condition. It is likely that the defendant will be wheeled into the courtroom on Wednesday morning, 21 August, in either a hospital bed or a modified wheelchair.
Then, the judge is scheduled to listen to defense and
prosecution lawyers argue a number of motions, all of which were listed on a
docket that circulated a month or two ago. These motions, which are listed
below, deal with a range of issues, including defense requests for information
about and access to places where Hadi / Nashwan and others were confirmed, and conflicts
of interest of war court personnel.
Motions on the docket are:
Defense Motion to Compel Discovery of Information Related to and Access to Buildings in which the Accused or any Potential Witnesses Have Been Confined (AE 137);
Defense Motion to Compel Defense Examination of Accused’s Conditions of Confinement Onboard Naval Station Guantanamo Bay (AE 139);
Defense Motion to Compel Appointment and Funding of Defense Mitigation Specialist (AE 150);
Defense Motion to Compel Production of Discovery Relating to Rules of Engagement Requested in Defense 51st Supplemental Request for Discovery (AE 156);
Defense Motion to Dismiss on the Basis that the Convening Authority has a Personal Interest in the Outcome of the Military Commission (AE 157);
Defense Motion to Dismiss because a Military Judge and Law Clerk Sought Employment with the DOD and DOJ (AE 150);
Defense Motion to Compel Discovery of Information Related to Public Statements Made by RDML Ring Concerning Conditions of Confinement (AE 150); and,
Defense Motion for Judge Libretto to Disqualify Himself under R.M.C. 902 (AE 150).
Conclusion – What Will Happen This Week?
This coming week at Guantanamo, like all weeks at Guantanamo,
is unpredictable.
We will need to wait to see how matters unfold this week.
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.
Mr. Dmitry Ukrainskiy, a Russian citizen, whom the U.S. seeks to extradite to New York to face charges of bank fraud, wire fraud, and money laundering. The Russian Federation also wants to extradite Mr. Ukrainskiy, to Moscow
The U.S. charged Mr. Dmitry Ukrainskiy, a Russian citizen,
with cybercrimes related to malware – malicious computer software breaches of
US computer systems — and seeks to extradite him from the Kingdom of Thailand
to face charges in New York. The Russian Federation seeks to extradite Mr.
Ukrainskiy on fraud charges, unrelated to the U.S. charges.
The Bangkok Criminal Court granted the Russian request to extradite, to which Mr. Ukrainskiy consented. Mr. Ukrainskiy did not consent to the U.S. extradition request, and the Thai court scheduled a hearing on the U.S. extradition request for 12 November 2018. If the court grants the U.S. request, then the court will have granted two competing extradition request – to Russia and to the U.S. Since it would be physically impossible to extradite Mr. Ukrainskiy to two countries, a subsequent decision would need to be made on whether Mr. Ukrainskiy would be sent to Russia or to the U.S.
U.S. and Thai law students have been conducting legal
research for Mr. Ukrainskiy’s case.
Law students in Professor Edwards International Criminal Law class at Indiana McKinney brief Mr. Nathan Feeney, of the Thai Law Firm, on points of extradition law.
The U.S. students, from Indiana University McKinney School
of Law, are enrolled in the autumn 2018 International Criminal Law course of
Professor George E. Edwards. He is also a Visiting Fellow at Bangkok’s
Chulalongkorn University Faculty of Law, with student research assistant
participation from that school. Professor Edwards and the students are working
with the Thai law firm, named Thailand Bail, owned by Mr. Nathan Feeney and
others, that represents Mr. Ukrainskiy.
This case tests the extent to which the U.S. can try
foreigners for alleged conduct occurring outside the U.S., but with effects
inside the U.S., and also tests questions concerning the role of politics in
extradition requests and the grant of competing extradition requests.
Research Assistant Khun Praewa Kasemsamran (แพรวา เกษมสำราญ) – Chulalongkorn University Faculty of Law Student (right); Khun Nathan Feeney (owner, Thai Bail Law Firm representing Mr. Ukrainskiy) (center); Professor George E. Edwards (Professor of Law, Indiana University McKinney School of Law; Visiting Fellow, Chulalongkorn University Faculty of Law) (left) at the Bangkok Courthouse
Russia has challenged the U.S. extraterritorial application
of U.S. law as applied to non-citizens generally, but as applied to Russians
specifically.
The U.S. has recently sought to extradite Russians from
Hungary, Maldives, Spain, Liberia, Czech Republic, Thailand (many), and other
countries. Russia has sought to extradite their own nationals in some of these
cases, with these countries having to decide whether to send the person to the
U.S. or home to Russia. Most of the countries sided with the U.S., but, not all
(for example, Hungary sided with sending the person to Russia).
Other U.S. cases involving Russian defendants include cases
brought by U.S. Special Counsel Robert Mueller.
The U.S. Request to
Extradite
Federal prosecutors in Brooklyn, New York, alleged that Mr.
Ukrainskiy and others used malicious software (malware) to breach U.S. computer
systems and access U.S. financial institutions’ passwords and usernames, and
unlawfully transfer funds from victims’ U.S. bank accounts to other countries,
including Thailand.
Pursuant to an extradition treaty between the U.S. and Thailand,
the U.S. requested that Thailand extradite Mr. Ukrainskiy to the U.S. to stand
trial for wire fraud, bank fraud and money laundering. The alleged behavior
occurred from 2014 to 2016, and U.S. victims allegedly lost over $1 million
(U.S.). The U.S. indicted Mr. Ukrainskiy, and issued their extradition request.
Mr. Ukrainsky faces decades in a U.S. prison if sent to New York and convicted.
The Bangkok Criminal Court scheduled a hearing for 12
November 2018 on the question of whether to grant the U.S. extradition request.
Research Assistant Khun Praewa Kasemsamran (แพรวา เกษมสำราญ) – Chulalongkorn University Faculty of Law Student & Professor George E. Edwards (Professor of Law, Indiana University McKinney School of Law; Visiting Fellow, Chulalongkorn University Faculty of Law)
Russian Request to
Extradite
Within weeks after the U.S. requested Mr. Ukrainskiy’s
extradition, the Russian government requested that Mr. Ukrainskiy be extradited
to Russia to face fraud charges rooted in alleged behavior occurring some years
ago.
Russia has no extradition treaty with Thailand. However, no
rules of international law, Thai law, or Russian law prohibit extradition in
the absence of a treaty. For extradition to Russia to occur, Russia and
Thailand would only need to agree, reflecting the sovereign power of states to
enter into ad hoc agreements.
Months ago, the Thai court granted Russia’s request to
extradite Ukrainskiy to Russia, and Mr. Ukrainskiy did not object to being sent
to Russia. Extradition to Russia was put on hold until the Thai court decides
whether to grant the U.S. extradition request.
Competing Extradition
Requests
If Thailand grants the U.S. extradition request, Thailand
will be faced with two approved competing extradition requests – one from the
U.S. and one from Russia. It appears as though the courts of Thailand have
never before been faced with the question of competing extradition requests –
where two countries are competing over the extradition of a defendant.
It is physically impossible for Thailand to extradite Mr.
Ukrainskiy to two different countries, and he would likely be sent to either
the U.S. or Russia, as no other country has requested his, and he has not
requested to be sent to another country (and has requested to be sent home to
Russia).
The U.S. / Thailand extradition Treaty and the Thai
Extradition Act both address criteria that Thailand might consider when
choosing between the two possible extradition recipient countries.
These criteria include that the sending country (Thailand),
when deciding between two competing requests, may consider: (a) Mr.
Ukrainskiy’s nationality; (b) which extradition request for him was received
first; (c) where his alleged crime(s) occurred; (d) the severity of the crimes
in the two countries seeking extradition; (e) and other factors.
Neither U.S., Thai, nor international law defines the
specific criteria, nor illuminates the criteria’s scope. Nevertheless, the
criteria should be used to ascertain where Mr. Ukrainsky should be sent, as
follows:
(a) Nationality.
Mr. Ukrainskiy is Russian, so that operates in favor of Russia’s request.
(b) Which request was
first. The U.S. requested extradition before Russia requested extradition,
which operates in favor of the U.S. request.
(c) Where the crimes
occurred. Per the Russian request, criminal behavior occurred in Russia –
fraud. Per the U.S. request, the U.S. would likely argue that the criminal
behavior occurred in the U.S., as that is where the malware was sent, where the
victims were, and where some of the banks from which funds were transferred
were. The defense would likely argue that it is debatable where the crimes
occurred (if any crimes occurred at all). Mr. Ukrainskiy did not enter the U.S.
during the period of time that the alleged fraudulent behavior occurred, and
for the sake of argument, presume that he never in his life entered the U.S.,
for any purpose. Did his alleged U.S.-charged crimes (bank fraud, wire fraud,
money laundering) occur in the country from which the malware was dispatched
(perhaps Thailand or some other country), the U.S. where the malware was
alleged to have infected U.S. computers, the U.S. where the banks were that
held the funds that were allegedly stolen, the United Arab Emirates where funds
were allegedly transferred, Thailand where transferred funds were allegedly
withdrawn from ATM machines, or other countries?
(d) Relative severity
of the crimes. Thailand is directed to consider whether the U.S. or Russian
crimes are more severe than the other. But, the extradition agreement does not
inform whether the person should be sent to the country with the more severe
crimes or punishments, or sent to the country with the less severe crimes or
punishments.
Also, there is no clear guidance as to how to weigh the
criteria.
For example, in this case Mr. Ukrainskiy’s Russian
nationality would likely be considered a point in favor of extradition to
Russia, whereas the U.S. requesting extradition before Russia requested
extradition would be a point in favor of extradition to the U.S.
But are the nationality and order of request criteria to be
given equal weight in the decision making, or should one factor be given more
weight than the other? Is one point for nationality equal to one point for
being the first extradition request?
Hakeem Al Araibi of Bahrain arrives at he Bangkok Criminal Court, the same building court where Mr. Ukrainskiy’s extradition case is being heard. Bahrain sought to extradite Mr. al Araibi from Thailand to Bahrain.
Double Jeopardy Issue
The Thai / U.S. extradition treaty and the Thai Extradition
Act prohibit extradition if it would result in double jeopardy – or ne bis in
idem – a principle of law in which a person shall not be twice exposed to
jeopardy under criminal law for the same “offense” or for the same “conduct”.
Thus, once a defendant has been “in jeopardy” in a criminal case – with either
a conviction or acquittal or another outcome – he cannot be prosecuted again.
Double jeopardy is relevant in Mr. Ukrainskiy’s case because
he was charged with and convicted in a Thai court for money laundering,
involving facts that overlap with facts associated with the charges for which
the U.S. is seeking extradition. Should the Thai court, when considering double
jeopardy, look only to the name of the crime in its determination? Must the
U.S. money laundering charges fail under double jeopardy because Mr. Ukrainsky
was convicted of money laundering in Thailand – as the crimes in Thailand and
the U.S. have the same name – “money laundering”? Or, should the Thai court not
focus on the name of the crime in both countries, but focus on what facts
underly the charges in the two jurisdictions? Are the facts underlying the Thai
charges identical to or different from the facts underlying the U.S. charges?
If the money laundering claim in the U.S. is excluded from consideration, can
extradition occur on the other two charges – bank fraud and wire fraud?
The Political
Question Doctrine & Whether Mr. Ukrainskiy get a fair trial in the U.S.?
The Thai / U.S. extradition treaty bans extradition when the
crime charged is political in nature (e.g., treason, defamation of the
government) or when the crime is charged for political purposes. In this case,
there is no allegation that the crimes charged – bank fraud, wire fraud, money
laundering – are political offenses. However, Mr. Ukrainsky would argue that he
was prosecuted for political purposes, for example, so that the U.S. might
extract information from him related to his service as a prosecutor during
Soviet days.
Furthermore, Mr. Ukrainskiy argues that it is impossible for him to receive a fair trial in the U.S. today since he is a Russian charged with cybercrimes, given negativity associated with a dozen Russians who allegedly hacked into the Democratic National Committee’s website in 2016 during the Presidential Elections, charges of collusion with Russia during the 2016 Presidential campaign, the number of high-profile Russians extradited to the U.S. or sought to be extradited to the U.S. for cybercrimes, and the number of Russians indicted through the Special Counsel Robert Mueller investigation. Mr. Ukrainskiy e would argue that U.S. jury might be biased against him, as a Russian facing computer charges, particularly of the magnitude charged.
The 12 November
Extradition Hearing in Bangkok
A hearing in the Bangkok Criminal Court was scheduled for
1:30 p.m., Monday, 12 November 2018, at which a panel of 4 judges was to hear
arguments as to whether the U.S. extradition request should be granted.
By 1:15 p.m., major stakeholders in the case were in the
spartan, 8th floor courtroom, including representatives from the U.S. Embassy
(Department of Justice Attaché) and the Russian Embassy (Consul General),
apparent representation from the Thai Ministry of Foreign Affairs, the Thai
criminal prosecution, Mr. Ukrainskiy’s legal defense team, Russian media, a friend of Mr. Ukrainskiy, representation
from the Indiana University McKinney School of Law and Chulalongkorn Law
Faculty, and observers.
Mr. Ukrainskiy was brought into the courtroom, in prison
garb and ankle shackles, wearing a light blue surgical face mask.
By 1:30, the panel of two male and two female judges
solemnly entered. After dealing with short matters on other cases, the chief judge called Mr.
Ukrainskiy’s case.
The chief judge announced that the Russian / Thai
interpreter had phoned saying she was ill and would not be in court. Apparently
only one certified Russian / Thai court reporter exists in Thailand, and when
she is out, no certified Russian / Thai interpretation can occur. She was
expected back in about 2 weeks.
At the hearing, Mr. Ukrainskiy, as the hearing’s key
witness, would have testified as to why he should not be extradited to the U.S.
Part of his testimony would have focused on his background
as an army prosecutor and as a special forces member (purportedly a member of
the Russian equivalent to U.S. Special Forces / Navy Seals) (and, as noted
below, such testimony would be presented at the resumed hearing, 17 December
2018).
No interpreter? What
next?
After the interpreter’s absence was made known, the two
clear options were: (a) for the hearing to go forward without the Russian /
Thai interpreter; or (b) for the hearing to be postponed.
In theory, the hearing could have proceeded despite the
Russian / Thai interpreter’s absence. Interpretation could have been Thai /
English, as Mr. Ukrainskiy, who is a native Russian speaker, speaks English. A
Thai / English unofficial interpreter was present and could have interpreted.
However, it is believed that Mr. Ukrainskiy’s legal team
rejected going forward without a Russian / Thai interpreter since Mr.
Ukrainskiy himself was scheduled to testify, and his testimony would have
involved technical and legal military terms, which might have been lost with
Thai / English interpretation. Mr. Ukrainskiy has the right under Thai Law to
an interpreter of his own language, and it was decided that he would avail
himself of such.
Postponement
The court decided to postpone the hearing until 17 December 2018, 1:00 p.m., in the same courtroom. This would be Mr. Ukrainskiy’s opportunity to testify on issues he wishes the court to consider when the court is cdeciding whether to grant the U.S. request to extradite. Since the Russian extradition request has already been granted, if the U.S. request is granted Mr. Ukrainskiy and his legal team will likely be back in court, arguing the merits of U.S. versus Russia as the proper place to be extradited. For the November 2018 hearing, postponed to 17 December 2018, the issue is solely whether the U.S. extradition request is granted. Again, the competing request arguments will be the focus only if the court grants the U.S. extradition request.
I’m at Andrews Air Force Base waiting for a military flight to take me to Guantanamo Bay, Cuba, to monitor hearings in the war crimes case against five alleged masterminds of the 9/11 attacks on the World Trade Center. I am representing the Military Commission Observation Project I founded at Indiana University School of Law.
The Pentagon announced that they want Guantanamo Bay proceedings to be “transparent”, and the Pentagon selected our Indiana program to help further the transparency. Our program has been sending Indiana law students, faculty, staff, and graduates to Guantanamo whenever they have war crimes hearings. Our mission is to attend, observe, be observed, analyze, critique, and report on the Guantanamo military commissions.
Hearings this week
On Monday 10 September 2018, a week of hearings will begin against Khalid Shaik Mohammad, who is charged with designing and overseeing the “plane’s operations” that destroyed the World Trade Center and damaged the Pentagon. He is joined by four other defendants who are charged with varying levels of responsibility for the 9/11 attacks–financing, recruiting and training hijackers, and facilitating communications among members of the conspiracy.
The long-serving military judge in this case resigned, and the new military judge will meet the defendants and lawyers for the first time on Monday.
Conclusion
I plan to provide updates during the week.
George Edwards
Director (Founding), Military Commission Observation Project
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.
Tents where we live at Guantanamo Bay’s Camp Justice.
[By Paul Logan. Posted by G. Edwards]
We made it
After a long day of traveling yesterday (Sunday, January 28), we arrived at Guantanamo Bay, Cuba’s, “Camp Justice,” which is a “tent city” where I and other representatives of non-governmental organizations (NGOs) will live for the next week. We are here to monitor U.S. military commission hearings against Hadi al Iraqi (also known as Nashwan al Tamir), who is accused of perpetrating war crimes in Pakistan and Afghanistan in the early 2000s. I am representing the Military Commission Observation Project of Indiana University McKinney School of Law, and traveled here with five observers from other NGOs: Zoe Weinberg (National Institute of Military Justice – NIMJ); Sarah Ruckriegle of Georgetown Law School; Kelly Mitchell (American Bar Association); Eric Helms (Human Rights First); and retired New York State Judge Kevin McKay (City Bar of New York).
Our flight to Guantanamo
We had an early start, as our “show time” at Andrews Air Force Base outside Washington was at 6 a.m., for a flight scheduled for 10:20 a.m., which actually took off shortly after 11. We observers were told to sit together in three rows near the back of the chartered National Airlines plane. Others on the plane were seated in groups in different sections, including the judge and his staff (in the very front of the plane), employees of the Office of Military Commissions staff, defense lawyers, prosecutors, staffs of the prosecution and defense, court reporters, translators and interpreters, security officials, and Guantanamo Bay Press Corps Dean Carol Rosenberg of the Miami Herald. While victim’s and victim’s family members and panel or jury members are sometimes on these flights, I understand none of these were on our flight today. Also on this flight were defense lawyers who came down to visit their clients who are prisoners who are not involved with the Hadi / Nashwan al Tamir case we came to monitor.
While there were some rough patches, it was generally an uneventful and uncrowded flight. The 757 can fit about 120 passengers, and there were a little over 80 on board, so each of us had three seats. I finished reading my copy of Know Before You Go to Guantanamo Bay, and began to draft this blog post. The manual, produced by Indiana’s Professor George Edwards, offers many suggestions on things to do when not involved in Military Commission activities, as well as how we can prepare substantively for our Gitmo mission. We had a very nice view of some islands out of my side of the plane, which I at first supposed to be the Bahamas, but because we were still a ways from Cuba, may have been the outer banks of North Carolina.
It was cool and rainy in Washington this morning and was sunny and beautiful here at Gitmo when we arrived after our 3-hour flight. After taxiing on the short airstrip on the leeward side of Guantanamo Bay, Naval Station authorities checked documents of the passengers. After we went through security, we met one of our escorts who will transport us around “the island,” as those here refer to the base, and boarded a ferry to cross from the across Guantanamo Bay from the leeward to the windward side of Gitmo (as the Naval Station is sometimes called).
Reaching Camp Justice
We NGOs were transported to our homes for the next week — tents in “Camp Justice”. We then made our first trip to the Expeditionary Legal Complex (ELC) to receive our badges that we have to wear when we go to court. The ELC complex contains Courtroom II in which cases are heard against high value detainees (HVDs), as well as judges’ chambers, trailers for the defense and prosecution, court offices, witness trailers, and holding areas for the detainees. We received a tutorial on not taking any photographs of any part of the ELC, and not bringing electronic devices to Court.
Evening
As our evening escort drove us to dinner, he received a phone call notifying him that the hearings set for today (Monday the 29th) will be closed to observers, presumably because classified information will be discussed. We all knew that there was a possibility of closed hearings, but we were disappointed that hearings on the first day would be closed, as we are anxious to do what one of the things we came here to do — observe the proceedings. We all understand that sitting in the courtroom is only one of the things that NGOs do. Our NGO mission has 6 parts to it: We are here to attend, observe, be observed, analyze, critique, and report on all we experience, both inside and outside the courtroom. We look forward to talking with prosecutors, defense counsel, Office of Military Commission officials, Carol Rosenberg, and others whose experiences will enlighten us and help us to do our jobs as monitors.
What we did Monday when Court sessions were
At Radio GTMO
closed
This morning our escorts took us to visit Radio GTMO, which operates three radio stations broadcast from the base. I purchased a bobblehead of Fidel Castro displaying the radio stations call letters on it. Thereafter, we took a look at Camp X-ray, where prisoners were first held here in 2002. Some may recall the photos in the news of detainees
An Igauna at the beach
in orange jumpsuits held in primitive outdoor “cages” surrounded by chain link fence and barbed wire. Several wooden guard towers ring the camp. Camp X-Ray has been closed for some time. We were informed that it has not been taken down as it is evidence in an ongoing case.
We then took the 2½ mile ridge line hike which has some dramatic vistas of the island, and saw a very large iguana. After our hike, it was time for some R&R at Glass Beach, not far from Camp Justice. We had another iguana visit on the beach.
A view from the Ridge. That’s Guantanamo Bay in the background. You can also see the part of Cuba over which the Cuban government exercises jurisdiction, outside the U.S. Naval Station at Guantanamo Bay.
We are all looking forward to finally seeing the inside of Courtroom II tomorrow, and finally observing the proceedings against Hadi al-Iraqi / Nashwan al Tamir.
Abd Hadi al Iraqi (Nashwan al Tamir) (2014 photo by the International Committee of the Red Cross)
[By Paul Logan, posted by G. Edwards]
I have been cleared to travel to the U.S. Naval Station at Guantanamo Bay, Cuba to observe, analyze, critique, and report on the U.S. Military Commission hearings against Mr. Abd al Hadi al-Iraqi (also known as Mr. Nashwan al-Tamir). He has been held at Guantanamo since 2007, and in 2014 he was charged with being a high-ranking member of al Qaeda Iraq and liaison with the Taliban, and accused of being responsible for deadly attacks in Afghanistan and Pakistan in 2003 and 2004.
I graduated with a J.D. from Indiana University McKinney School of Law in 1994, and am an employment lawyer in Indianapolis. When I was in law school, there were few international law opportunities for students. Several years after I graduated, the school founded its Program in International Human Rights Law (PIHRL), which for over 20 years has offered students and graduates many international opportunities. One of its projects is the Military Commission Observation Project, which sends faculty, staff, students, graduates to Guantanamo, after the program received special status from the Pentagon. I am thankful and excited about this opportunity!
On Sunday, 28 January 2018, I am scheduled to travel on a military flight from Andrews Air Force Base in Washington, D.C. to Guantanamo Bay. Motion hearings in Hadi’s case are scheduled to last all week. While a docket can be found on the military commission website at mc.mil, the website states that many of the documents are unavailable due to pending security review or confidentiality.
My laptop, passport, Military Orders, “Guantanamo Bay Fair Trial Manual Excerpts” (yellow), “Know Before You Go” (green). Preparing for Gitmo.
My preparation for the mission to Guantanamo has included reviewing several publications of the Program in International Human Rights Law. These include the Guantanamo Bay Fair Trial Manual: Excerpts, which has introduced to the relevant international and U.S. law, and introduced me to the Hadi case and the other pending Guantanamo Bay cases. I believe this publication will be very helpful as I seek to analyze, critique and report on my Guantanamo experiences.
The program also provided me with Know Before You Go To Guantanamo Bay: A Guide of Human Rights NGOs & Others Going to Gitmo To Attend U.S. Military Commission. This has also been very helpful.
I look forward to this opportunity learn more about the commissions, and to help the McKinney project by contributing to its Guantanamo Bay mission.
My trip to Washington, DC
With Professor George Edwards in Washington, DC.
I flew from Indianapolis to Washington, DC this morning (Saturday), and had a chance to do some sight-seeing in the city, and had an opportunity for briefing by Professor George Edwards, who was at Guantanamo Bay last week. He informed me that he will be traveling to Ft. Meade, Maryland on Monday the 29th of January to view the same Guantanamo Bay hearings I will view. I was told that the Guantanamo Bay courtroom where I will be on Monday has cameras that are broadcast live back to Ft. Meade.
Manipulating my first Eritrean meal
It was delicious.
I had a chance to have Eritrean food for the first time.
My plan for further blogging on the Guantanamo Bay trip.
I plan to draft another post related to my trip from Andrews to Guantanamo, and additional posts about the substance of the commission hearings this week.
Paul Logan, JD ‘94
Military Commission Observation Project
Program in International Human Rights Law
Indiana University McKinney School of Law
[Posted by G. Edwards on behalf of Mr. Paul Logan]
I’m at Andrews Air Force Base waiting for a plane to take me to Guantanamo Bay, Cuba, to monitor hearings in the US Military case against Mr. al Nashiri, who allegedly masterminded the bombing of the 2000 USS Cole off the coast of Yemen. That bombing killed 17 US sailors and wounded many more.
The hearings this week are scheduled to focus on many issues, including the status of lawyers who were detailed to represent Mr. al Nashiri, who were ordered to appear at the hearings, but who do not appear to be here at Andrews for the flight. Our flight will carry many dozens of others related to the case, including the prosecutors, the judge and his staff, media, court reporters, interpreters and translators, security personnel, and guides and escorts.
I will plan to report back in from Cuba.
George Edwards
Director (Founding), Military Commission Observation Project
A military flight is scheduled to depart for Guantanamo Bay, Cuba, tomorrow, Tuesday, 6 September 2027, ferrying dozens of legal professionals and others to a pre-sentencing hearing for Mr. al Darbi, who pleaded guilty to charges related to a tanker bombed off Yemen’s coast in 2002.
But Hurricane Irma appears to be barreling towards Cuba, making travel to the remote war court precarious, jeopardizing the Thursday to Friday hearings.
Tuesday image of Hurricane Irma’s trajectory — with Cuba in her sights
My role as legal monitor
I am scheduled to be on that plane tomorrow from Andrews Air Force Base to Guantanamo.
I am an independent legal monitor, invited to observe hearings pursuant to the Pentagon’s stated desire for Guantanamo Bay transparency. I examine rights and interests of all categories of Guantanamo Bay stakeholders, including rights and interests of the defendants, the prosecution, victims and their families, media, the public, the prison guard force, and others. On these missions I am typically joined by other monitors representing human rights and other non-governmental organizations (NGOs).
No cancellation notice
As of 1:00 p.m. on Tuesday, 5 September 2016, we have received no official notification of any flight or hearing cancellation.
Of course we know that the Office of Military Commisions has their hands full sorting out logistics for this week’s scheduled pre-trial hearings, but also hearings for the next three weeks. They handle matters such as the flights for everyone who travels to Guantanamo, multiple categories of travel and security paperwork, accommodations on the ground at Guantanamo, local transportation, and escorts. And when hearings are cancelled, arrangements for all the above also need to be cancelled–and then rescheduled.
Should we proceed to Andrews at the crack of dawn tomorrow for the scheduled flight? Or skip it, even if it is going forward, given Irma? When will Mr. al Darbi’s pre-sentencing hearing occur?
Stay tuned!
Mr. al Darbi, of Saudi Arabia, whose pre-sentencing hearing is scheduled for Guantanamo Bay for 7-9 September 2017
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.
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.
I 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.
I 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”
Andrews Air Force Base at Dawn. I took this photo in front of the Visitors’ Center
Today is my 4th scheduled trip to Guantanamo Bay, Cuba, since January 2017, the month of the inauguration. The first three of these early 2017 war crimes pre-trial hearings were cancelled, the last one just hours before our military flight was scheduled to depart Andrews Air Force base.
I’m back at Andrews again pre-dawn, with dozens of other people – civilian and military – heading to Guantanamo for US military commission pre-trial hearings in the case against Nashwan al-Tamir, referred to by the prosecution as Abd al Hadi al Iraqi (“Tamir / Hadi”), an alleged high-level Al
Laptop, passport & boarding passcaption
Qaeda member who allegedly committed war crimes. These hearings were originally scheduled for two weeks — five days this coming week and five days next week — but next week’s hearings were cancelled.
Boarding pass. Note the price.
We were meant to arrive at Andrews at 6:00 AM for a 10:00 AM flight — four hours in advance is standard. While waiting, there is time for me to meet the other 4 non-governmental organization observers (described below), and to see who else is scheduled to fly with us. There has not been much air traffic at Andrews on any of my trips to and from Guantanamo. On occasion, dignitaries on official planes will pass through the otherwise spartan Andrews Air Terminal.
The defendant — Nashwan al-Tamir / Abd al Hadi al Iraqi
The defendant – Tamir / Hadi
Tamir / Hadi is a high-value detainee who is an alleged high-ranking member of al Qaeda who served as liaison between al Qaeda in Iraq and the Taliban. He is charged under the U.S. Military Commissions Act with a series of war crimes, including attacking protected property, perfidy / treachery, denying quarter, and targeting noncombatants such as medical workers and civilians. Among other things, he is alleged to have helped the Taliban blow up the monument-sized Bamiyan Valley Buddha Statues, which were a UNESCO World Heritage site.
Tamir / Hadi was officially charged in the equivalent of an arraignment in a Guantanamo Bay courtroom in June 2014. I happened to be present at Guantanamo and in the courtroom for that proceeding.
Unlike most of the other detainees charged with international crimes, Tamir / Hadi is facing a maximum sentence of life imprisonment, rather than a death sentence faced by, for example, the five men charged with masterminding the 9/11 attacks on the World Trade Center and the Pentagon.
Our Pre-Trial Hearing Week at Gitmo
It is unclear what will transpire during this week of pre-trial hearings. I downloaded an official docket of motions originally scheduled to be argued in court this week. However, the amended docket is hidden behind a pentagon security firewall, beyond the reach of the small handful of “observers”, like myself taking today’s 3-hour flight to this remote outpost tribunal. Rumor has it that we will only have 2 days in the courtroom this week, though the hearings are scheduled morning and evening, Monday – Friday. This means that we may have plenty of time to explore non-courtroom endeavors, including research and writing. Time permitting, I will be able to focus on research for my new book, The Guantanamo Bay Reader: Voices of Those Living and Shaping the Gitmo Experience.
Inevitably, many of us on these trips find time to engage in recreational activities.
It’s good to see some familiar faces here in the terminal, weary as we all gear up for a solid week of Guantanamo work.
The other 3 male Observers. We have one female observer on this trip as well.
It is also great to meet the 4 other observers who will be with me on this trip. Most appear to be lawyers, with two being prosecutors.
With us are the military judge and his staff, prosecutors, defense counsel, interpreters and translators, security personnel, media, escorts for various groups, and us observers. I also noticed some families, with young children, returning to Guantanamo where they are stationed as part of the 3 to 4 thousand permanent U.S. military living at Guantanamo. Another approximately 1,600 are at Guantanamo to handle matters related to the 41 detainees remaining there.
Please stay tuned for more reports from Guantanamo Bay. Among other things, I plan to provide updates on the Guantanamo Bay Fair Trial Manual, produced by the Guantanamo Bay Military Commission Observation Project of the Indiana University McKinney School of Law, and share information about the 4 other NGO representatives scheduled to observe this week’s proceedings with me. I also plan to discuss my new book, The Guantanamo Bay Reader.
Dean Andy Klein and Judge Aline Fagundes in front of the Guantanamo Photo Exhibition that was created by Judge Fagundes.
Indiana law students, faculty, staff and graduates have a long history with Guantanamo Bay. Much of their work relates to the U.S. Military Commissions – a military tribunal – created by Congress in 2006 to try detainees for alleged conduct associated with war.
The students, from Indiana University McKinney School of Law, are holding a photo Exhibition that highlights aspects of Guantanamo that do not focus on their legal work on important cases like that of alleged masterminds of the 9-11 attack on the World Trade Center and Pentagon.
The Exhibition focuses on Guantanamo as a tropical island outpost that “holds a rare natural beauty in the Caribbean Sea”.
Guantanamo is a “place globally associated with stories of terrorism, torture and lengthy detention without charge”, but it has another side to it that is rarely reported, the students note.
The Exhibition comprises photos of nature at the U.S. Naval Station Guantanamo Bay, Cuba (also called “Gitmo”).
Brilliant sunrises and sunsets, sand covered beaches with lapping waves, iguanas, and vultures appear in vividly vibrant, large-scale photographs, clear and sharp.
Indiana McKinney’s Guantanamo involvement.
Indiana McKinney law students, faculty, staff and graduates have been associated with Gitmo for most of the 15 years since the first detainees arrived there in January 2002. Their Gitmo roles have included law student researcher, expert witness, media representative, chief defense counsel, prosecutor, detention camp legal advisor, detention center guard, Defense Department public affairs representative, and fair trial observer.
Today’s Exhibition explores Gitmo through the eyes of McKinney students who traveled to GTMO as fair trial observers.
The Department of Defense grants “NGO observer status” to Non-Governmental Organizations such as McKinney’s Program in International Human Rights Law, for the stated purpose of promoting transparency at the Commissions. The McKinney human rights program then formed the MCOP – Military Commissions Observation Project. The MCOP sends McKinney faculty, staff, students and graduates to Gitmo Bay to attend, observe, analyze, critique, and publish materials on the hearings. They are fair trial observers.
Exhibition details
Judge Fagundes and Professor Edwards at Ft. Meade, Maryland
The Exhibition, sponsored by the law school’s Program in International Human Rights Law (PIHRL) & Master of Laws Association (MLA), is titled “Guantanamo Bay, Cuba, Through the Eyes of Indiana University McKinney School of Law Observers”.
Judge Fagundes & Professor Edwards at the Pentagon.
The Exhibition is in the Law School Atrium, 530 West New York St., Indianapolis, IN 46208. It runs from 20 April to 15 May 2017, from the end of classes, through the exam period, until the graduation ceremonies.
The Exhibition was created and organized by Judge Aline Doral Stefani Fagundes, LL.M. candidate, MLA President. Judge Fagundes traveled to Gitmo twice, and traveled to the Pentagon and to Ft. Meade, Maryland for other Guantanamo Bay – related hearings.
The students noted that the Exhibition would not have been possible without the help of the McKinney Graduate Programs, the Office of External Affairs, and the Office of Students Affairs.
This morning, in a dark, locked, secure Pentagon conference room, I attended a hearing in which Guantanamo’s oldest detainee, 69-year-old Mr. Saifullah Paracha, asked the U.S. government to set him free. I was joined by Judge Aline Fagundes, who is a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, and several other carefully screened civilian monitors.
The hearing was held pursuant to a 2011 Executive Order issued by President Barack Obama that provides detainees periodic reviews to determine if the detainees are a threat to U.S. national security. If the Periodic Review Board (PRB) finds that the detainee is a threat, he remains detained. If he is found not to be a threat, he may be repatriated to his home country or resettled in a third country.
Mr. Paracha argued for his release. The government alleged that Mr. Paracha was a “businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners”.
The PRB is expected to render a decision in Mr. Paracha’s case in about a month.
Today’s hearing – Who? Where?
Today at the Pentagon we had 6 observers from non-governmental organizations (NGOs) and the media. Two of us were from the Guantanamo Bay project I founded at Indiana University McKinney School of Law (GitmoObserver.com). Our project sponsors Indiana Affiliates to travel to hearings at Guantanamo, the Pentagon, and Ft. Meade, Maryland.
We were met by 2 military and one civilian escort in the Pentagon’s Visitor Center, and escorted to a conference room where we talked amongst ourselves and listened to the Military History Channel, waiting for the hearing to commence.
Others present for the hearing included members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. These individuals were not with us at the Pentagon, but were at a separate, undisclosed location in the DC area. It is believed that also present for the hearing, also at one or more undisclosed locations, were the Legal Advisor to the Board, the Case Administrator, a Hearing Clerk, and a Security Officer.
The detainee – Mr. Paracha – was present, by close circuit TV.
Mr. Paracha was joined by a “personal representative”, who is a military official dressed in uniform, who has been spending time with the Mr. Paracha and helping him present his case. The personal representative is not a lawyer or other sort of legal professional, and communications between Mr. Paracha and his personal representative are not protected by attorney client or similar privilege.
The hearing begins
The hearing was scheduled to begin at 9:00 a.m., but what appears to have been a technical glitch resulted in a delay. Some of us were concerned, since at the last PRB we attended the audio feed was great from Guantanamo Bay but there was no visual feed so the screen was blank. Today’s visual feed was blurry, but at least we could see the Guantanamo hearing room and its occupants, unlike at the last PRB.
Mr. Paracha
At 9:14 a.m., a picture appeared on the almost ceiling-height screen.
In our dimly lit conference room, we saw on the screen the dimly lit Guantanamo room where the detainee sat at the end of a rectangular table, facing the camera, with a stack of papers in front of him. They were in one of Guantanamo’s trailer-like, austere, rooms that had plain walls, floor, and table.
In contrast to the bland surroundings, the hearing room had high back office chairs, that looked like high-quality leather chairs one might see in a law associate’s office. Aside from air conditioner units, seemingly from the 80s, hanging window-height on the wall behind Mr. Paracha’s head, there was nothing else on the walls.
On the table in front of Mr. Paracha’s seat was a table-top name plate that said in large, bold, all capital letters “DETAINEE”.
Mr. Paracha wore a white top, with somewhat short sleeves that appeared bunched at the elbows. His attire was clearly not a detainee “uniform”. Through the blur it appeared as though he had a white beard and a bald head.
The personal representative sat at the table on Mr. Paracha’s right, perpendicular to him, and not directly next to him.
The hearing began with a male, off-camera voice announcing that the hearing was commencing, mentioning some hearing rules, identifying who was present – boiler point.
Next came a female voice, again off camera. This voice read the Government’s Unclassified Statement, as follows:
Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them.
Mr. Paracha appeared to be paying close attention to whichever person happened to be speaking at the time – one of the off-camera narrators or his personal representative. The hearing was conducted in English, as a voice in the background stated that Mr. Paracha had waived his right to an interpretation of the hearing in another language of his choice.
While the personal representative spoke, Mr. Paracha would from time to time glance at her. At other times he appeared focused on the papers in front of him, appearing to follow along in English, flipping pages as the script was being read. At times he would place his left open palm firmly on the stack of papers, as though holding them down from a breeze.
The hearing ended at 9:19 — just 5 minutes after it began. This was the shortest PRB I have attended. They typically begin at 9:00 and run no longer than 30 minutes.
No private counsel of Mr. Parach attended today’s PRB, and no statement was read by any private counsel for Mr. Paracha’s today. That was one reason that the PRB was shorter than usual. It is unclear why private counsel did not appear today. A statement by the private counsel Mr. David H. Remes had been posted on the Perriodic Review Board websitehere. But, that statement was the same statement submitted under Mr. Remes for Mr. Paracha’s file review PRB in 2016. That statement ended with this sentence:
For these reasons, I respectfully encourage the Board to convene a full review and hope that it will conclude that Mr. Paracha’s continued detention is unwarranted.
David H. Remes
Approved for Public Release
UNCLASSIFIED
That statement asked the Board to convene a “full review”, and today’s hearing was the “full review” requested. If Mr. Remes submitted a private counsel statement for today’s hearing, that statement was not posted on the PRB website (as of tonight — 8:55 p.m., Tuesday, 21 March 2017), and was not read at today’s hearing. What was posted online under Mr. Remese name was from last year.
Mr. Paracha’s background
Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.
Uzair Paracha, Mr. Paraha’s son, is serving a 30 year sentence in a U.S. federal prison on terrorism-related convitions.
The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.
Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.
Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.
The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.” Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.
Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.
Paracha’s 3 PRB hearings — summary
Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.
Initial Review.Paracha had a PRB initial review on 8 March 2016, and on 7 April 2016 the Board concluded:
The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States. In making this determination, the Board considered the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.
File Review.Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:
On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.” The PRB previously conducted a full review of the detainee and on 7 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States. After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to Whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.O. 13567.
Full Review.It was Mr. Paracha’s full review that was held today. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will repatriate him to Pakistan or send him to a 3rd country – outside the U.S.
The Board will likely publish a decision on this full review in a month or so.
More on this hearing?
The initial part of the PRB was unclassified, and that is the portion of the PRB that Judge Fagundes, the other monitors and I observed. During that portion of the PRB, we were sitting in a secure Pentagon viewing room watching Mr. Paracha and his personal representative live from Guantanamo Bay.
PRBs v. Military Commissions
Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.
PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.
Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.
Professor George Edwards & Judge Aline Fagundes at the Pentagon before the Periodic Review Board (PRB) held on 21 Marh 2017
Judge Fagundes’ observations
Judge Fagundes is the first student from Indiana University McKinney School of Law to participate in all three types of hearings our Indiana Guantanamo Bay Military Commission Observation Project / Gitmo Observer may send affiliates to observe:
She traveled to Guantanamo Bay, Cuba to monitor U.S. Military Commissions live, in the courtroom.
She traveled to Ft. Meade, Maryland, to monitor U.S. Military Commissions via a secure videolink from Guantanamo.
She traveled to the Pentagon to monitor Guantanamo Bay Periodic Review Board (PRB).
Judge Fagundes is researching and writing a paper that focuses on international law requirements for transparency in the U.S. Military Commission system. She has described some of her experiences on this blog – www.GitmoObserver.com.
On Tuesday Guantanamo’s oldest detainee, Mr. Saifullah Paracha, will likely plead at a hearing that he is not a threat to U.S. national security. He will ask to be repatriated to his homeland of Pakistan or resettled in a 3rd country.
During the parole-like hearing, Mr. Paracha will be located in a small, bare trailer at Guantanamo. The proceeding will be videocast live to a small Pentagon room where I plan to watch it with a handful of other carefully screened observers, including two of my Indiana law students (Judge Aline Fagundes and another Master of Laws student).
Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.
Mr. Uzair Paracha, Mr. Paracha’s son, who is serving a 40 year U.S. terrorism sentence
The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.
Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.
Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.
The hearing – a Periodic Review Board – PRB
This hearing at which Mr. Paracha will argue is called a Periodic Review Board (PRB), and will be conducted pursuant to a 7 March 2011 Executive Order (number 13567) which has required most detainees to have a “periodic review” of their detention status.
The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.” Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.
Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.
Paracha’s 3 PRB hearings
Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.
Initial Review. Paracha had a PRB initial review on 8 March 2016, and on 7 April 2016 the Board concluded:
The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States. In making this determination, the Board considered the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.
File Review. Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:
On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.” The PRB previously conducted a full review of the detainee and on 7 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States. After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to Whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.O. 13567.
Full Review. It is Paracha’s full review that is scheduled for this Tuesday. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will repatriate him to Pakistan or send him to a 3rd country – outside the U.S.
The Board will likely publish a decision on this full review in a month or so.
Below is more information about what Tuesday’s full PRB may be like.
Judge Aline Fagundes, a Master of Laws (LL.M. student at Indiana) is expected to attend Mr. Paracha’s PRB at the Pentagon. She was at the Pentagon earlier this month for a different PRB.
What will Paracha’s PRB be like on Tuesday?
Who will be present?
I suspect that other representatives of Non-Governmental Organizations (NGOs) (including 2 students from Indiana University McKinney School of Law) will be present with me at the Pentagon on Tuesday, and possibly some media. This is the third PRB to be held under the Trump Administration.
Others present for the hearing will include members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. Presumably each of those representatives will watch remotely in his or her office in the DC area. Also likely to be present for the hearing are the Legal Advisor to the Board; the Case Administrator; a Hearing Clerk; and a Security Officer, though it is not clear where these individuals would be located at Guantanamo Bay or elsewhere.
Who will make statements made at the PRB?
1. First, U.S. military official will read an “Unclassified Statement”. The statement for Tuesday is already posted online, and is as follows:
Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them.
2. Mr. Paracha’s Pentagon-appointed personal representative may make a statement. The text of this statement has not yet been posted online.
3. Mr. Paracha’s private counsel may make a statement. The text of this statement has not yet been posted online.
More on this hearing?
The initial part of the PRB will be unclassified, and that is the portion of the PRB my students and I will observe. During that portion of the PRB, I will be sitting in a secure Pentagon viewing room watching the hearing live, which will be happening at Guantanamo Bay.
It is possible that the Pentagon will post a statement by Mr. Paracha and the other statements mentioned above (statement by his Pentagon-appointed personal representative and by his private counsel). If these are posted on the PRB website, I will plan to post them on this blog later.
PRBs v. Military Commissions
Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.
PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.
Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.
Conclusion
So far as we can tell, Paracha’s PRB is still scheduled to go forward on Tuesday. That is, the Pentagon has not notified us that it will not go forward. If it does go forward, it seems likely that Mr. Paracha will attend, as there has been no suggestion that he will miss his first full review.
Today we posted the newest version of our Know Before You Go To Guantanamo Bay Guide. It contains 90 pages of information to help you prepare for a trip to this remote Cuban military outpost, including information about the U.S. war crimes trials being held there.
Want to learn intricacies on gaining permission to travel to Guantanamo? What about information about Guantanamo Bay accommodations, restaurants, recreation, sites?
The Guide contains up-to-date information, including about the U.S. Naval Base’s newest restaurant, called Tropical Cabana, that is “Inspired by Cuba, Jamaica & the Philippines in a Relaxed Island Atmosphere”.
It also now contains information / photos of artwork done by one of the courtroom guards – animal figures made of glass collected from Glass Beach.
I’m at Andrews Air Force Base waiting for a military flight to take me to Guantanamo Bay, Cuba, to monitor hearings in the war crimes case against five alleged masterminds of the 9/11 attacks on the World Trade Center. I am representing the Military Commission Observation Project I founded at Indiana University School of Law.
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.
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.
While there were some rough patches, it was generally an uneventful and uncrowded flight. The 757 can fit about 120 passengers, and there were a little over 80 on board, so each of us had three seats. I finished reading my copy of 
I 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.
I 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.
Please stay tuned for more reports from Guantanamo Bay. Among other things, I plan to provide updates on the 
