Author: gedwards97

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.

Indiana Law School Affiliates Travel to Monitor Guantanamo Bay War Crimes Hearings

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Mr. al Nashiri

For two weeks this month, Guantanamo Bay war crimes hearings have been held in the case against Mr. Abd al Rahim al Nashiri, who is alleged to have masterminded the 2000 bombing of the U.S.S. Cole off the coast of Yemen, killing 17 U.S. sailors and wounding dozens more.

Representatives of Indiana University McKinney School of Law have monitored these hearings, live in the Guantanamo Bay courtroom, and remotely by CCTV at a secure facility in Ft. Meade, Maryland.

In addition to monitoring military commissions, Indiana affiliates also monitor Guantanamo Bay Periodic Review Board hearings (PRBs), that occur live at Guantanamo Bay but are broadcast live by CCTV into a secure room at the Pentagon. The PRBs are separate and distinct from the military commissions.

All Indiana monitors carry out the 5-part mission of Indiana McKinney’s Military Commission Observation Project, to: (a) attend; (c) observer; (c) analyze; (d) critique; and (e) report on the substance and the form of the legal proceedings.

All Indiana monitors contribute to research and writing of the Guantanamo Bay Fair Trial Manual, which is an independent and objective guide on rights and interests of all Guantanamo Bay stakeholders, and not just the rights and interests of the defendants. The Manual examines rights and interests of the prosecution, the victims and victims’ families, the media, the public, detainees who are not charged, witnesses, the military detention center guards, and others.

Indiana monitors also contribute to the Know Before You Go to Guantanamo Bay Guide guide, which offers travelers to Guantanamo insights into what to expect there. Also, Indiana monitors contribute to the blog, resource database, and other components of our Gitmo Observer website – www.GitmoObserver.com (and our twitter feed — @GitmoObserver).

Indiana monitors who travel to Ft. Meade, the Pentagon and Guantanamo Bay carry out their responsibilities independently and objectively.

Indiana Observers at Guantanamo

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Judge Fagundes at Andrews Air Force Base in 2016 on her first of 2 trips to Guantanamo Bay.

On Saturday, 4 March 2017, Judge Aline Fagundes, who is a Master of Laws (LL.M.) student at Indiana, flew on a U.S. military flight from Andrews Air Force Base to Guantanamo Bay, Cuba to monitor a week of al Nashiri hearings. At Guantanamo Bay, she witnessed the proceedings while seated in Guantanamo’s courtroom, in a gallery behind a double-paned glass wall that separated her and other observers from the lawyers, the judge, and the defendant. This was the second trip to Guantanamo Bay for Judge Fagundes, who traveled there in 2016 to monitor hearings in the 9/11 case against the 5 alleged masterminds of the attacks on the World Trade Center and Pentagon.

 

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Mr. Tex Boonjue, 2nd from left, with other human rights monitors at Andrews on Saturday, 11 March 2017, waiting for their flight to Guantanamo.

A week after she arrived, another military flight from Andrews touched down at Guantanamo, carrying Mr. Tex Boonjue, a 3rd year Indiana J.D. student. Mr. Boonjue and Judge Fagundes met briefly at the Guantanamo Air Terminal, where the baton was passed for the second week this month of on-site monitoring.  This interchange at Guantanamo marked the first time since 2003 – when Indiana McKinney affiliates fist became involved with Guantanamo – that Indiana has had 2 representatives on the ground at Guantanamo at the same time. On of the dozens of trips, Indiana has only had one representative on the island at a time.

The plane that carried Mr. Boonjue to Guantanamo picked up Judge Fagundes and brought her back to Andrews. Judge Fagundes spent the weekend in the DC area, then traveled to Ft. Meade, Maryland to witness, via CCTV, continued hearings in the al Nashiri case.

 

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Mr. Tex Boonjue & Judge Aline Fagundes meet at the Guantanamo Bay Air Terminal, 11 March 2017. Fagundes was boarding the plane that had just brought Boonjue from Andrews Air Force Base

Both Mr. Boonjue and Judge Fagundes have published multiple blog entries on www.GitmoObserver.com. You can read about some of Judge Fagundes’ experiences here and about some of Mr. Boonjue’s experiences here.

Indiana Observers at Ft. Meade

Early Monday morning, 13 March 2017, Judge Fagundes arrived at the Ft. Meade Army Base in Maryland, where the Guantanamo Bay hearings are broadcast via satellite to a secure viewing room.

Upon her pre-dawn arrival, she stopped at the Ft. Meade Visitors Center, where she was able to collect a badge that granted her access to the base. She traveled about a mile onto the base to the McGill Training Center, where the Office of Military Commissions has organized a live feed from the Guantanamo Bay courtroom.

At Ft. Meade’s McGill facility, Judge Fagundes saw the Guantanamo Bay courtroom from a different perspective. While at Guantanamo, she witnessed the proceedings from the gallery, which is at the back of the courtroom, offering a view of the entire courtroom at all times. She was able to see the judge, the prosecution, the defense counsel, the defendant, the security officers in military uniform, and court staff. She could also see occupants of the viewing gallery, including other observers, media, Guantanamo Base residents who are able to sit in when seats are available, and victims and victims’ families (VFMs) (except when VFMs choose to close a curtain that separates the VFM section of the gallery from others in the gallery).

At Ft. Meade, she could only see what was broadcast from Cuba, through a courtroom camera that would point at the person currently speaking. When the judge spoke, a camera pointed at him and that was broadcast live. When the prosecutor spoke, a different camera pointed at him, and that was broadcast live. Cameras pointed at the defense counsel, the defendant, and the witnesses would come alive and broadcast when those people spoke.

When viewing proceedings at Ft. Meade, it is impossible get a clear sense of the scope of the proceedings, or the courtroom / gallery dynamics, as one can do when in they are observing live at Guantanamo.

At Ft. Meade, observers cannot witness any visual or oral reactions by VFMs, the defendant, or anyone else, unless a camera pointing towards them is activated. These cameras are only activated when an actual participant in the courtroom is speaking officially. The cameras would not necessarily point towards a defendant who was speaking out of turn, a VFM who might be reacting, or others on site who could clearly be heard / seen by any observer physically in the courtroom gallery.

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Fagundes & Edwards at the Ft. Meade Museum

At Ft. Meade, Judge Fagundes was met by Professor George Edwards, who is the founding faculty director of Indiana’s Guantanamo project.

 

Judge Fagundes and Professor Edwards viewed the hearings at Ft. Meade, while Mr. Boonjue viewed the hearings while in gallery in the back of the Guantanamo Bay Courtroom.

 Upcoming Indiana participants at Guantanamo Bay and Ft. Meade

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Mr. Brent Pierce

On Saturday, 18 March, Mr. Brent Pierce, an Indiana McKinney J.D. graduate, is scheduled to travel to Guantanamo Bay. He is likely to be on the ground there for a few minutes with Mr. Boonjue, who is due to return to Andrews on the plane that carries Mr. Pierce from Andrews.

 

Mr. Pierce is scheduled to monitor the case against the five alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon.  That case has five defendants, including Khalid Shaik Mohammad. These five defendants, like Mr. al Nashiri in the U.S.S. Cole case, face the death penalty.

On Monday the 20th, when Mr. Pierce is in the Guantanamo gallery for the 9/11 hearings, Professor Edwards is scheduled to be back at Ft. Meade with another Indiana McKinney LL.M. student, who will join in monitoring the 9/11 case via CCTV.

You can read Mr. Pierce’s initial blog post here.

Substance of the al Nashiri Hearings

USS Cole Map of Ship & Devastation

A Cole bombing news article schematic. This schematic was not proffered as evidence. Photos of the ship were proffered.

The testimony on the Monday morning that Professor Edwards and Judge Fagundes were at Ft. Meade (and Mr. Boonjue was in the Guantanamo courtroom gallery) focused on pre-admitting into evidence items that the FBI recovered from the U.S.S. Cole in the days after the ship was attacked. These items included photographs of the ship, harbor where the ship was attacked, the road leading to the harbor, and the beach front where debris from the attack was washed ashore. Among the debris on the shore depicted in the photographic evidence was an uninflated Cole lifeboat and a Cole baseball cap. Also

 

A baseball cap like the one in the photograph the prosecution entered as evidence in the case against al Nashiri. A similar cap was found on the beach near the USS Cole bomb site.

admitted into evidence were fiberglass fragments that are alleged to be part of the suicide boat that attacked the Cole, debris found on Cole’s deck following the bombing, photographs of the gaping hole in the side of the Cole where the attack boat hit, and photographs of devastation inside the attacked ship.

At Ft. Meade and in the Guantanamo Gallery, observers could see some of the exhibits, including those that were projected onto the screen by a device like an overhead projector.  When exhibits were presented, at Guantanamo, observers could see and hear reactions / non-reactions by the defendant, VFMs, media, other observers, and others in the courtroom. At Ft. Meade, observers could see and hear only what came through the television monitor / speakers.

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Khalid Shaik Mohammed

Substance of the upcoming 9/11 hearings

It is unclear what will be on the agenda for the 9/11 hearings. The military judge in that case has released a docketing order, and participants know the list of pre-trial motions scheduled. But experience has demonstrated that not all motions on the order are necessarily heard during a hearing week, and at times matters not listed on the order are raised.

Periodic Review Hearings (PRB)

On Tuesday, 21 March 2017, Professor Edwards, Judge Fagundes, and another LL.M. student are scheduled to travel to the Pentagon to monitor the PRB hearing of Saifullah Paracha, from Pakistan, who at 69 years of age is the oldest detainee currently being held at Guantanamo Bay. He is alleged to have associated with members of al Qaida.

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Mr. Saifullah Paracha

PRBs and military commissions differ.

 

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.

 

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Mr. al Darbi

9/11 Hearings for the last week of March 2017; al Darbi hearings for the first week of April.

 

During the final week of March, Professor Edwards is scheduled to travel to Guantanamo Bay for the 2nd week of hearings in the 9/11 case. Mr. Brent Pierce and Professor Edwards will likely meet briefly at the Guantanamo Bay airport, to pass the baton for the final week of March hearings.

Currently, hearings are scheduled at Guantanamo Bay for the first week of April in the case of Mr. al Darbi, who is alleged to have conspired with Mr. al Nashiri in planning a failed attack on the U.S.S. Sullivan the year before the U.S.S. Cole bombing. Professor Edwards is scheduled to return to Guantanamo Bay for this hearings. Rumor has it that the April al Darbi hearings will be cancelled. Another round of al Darbi hearings is scheduled for May 2017.

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Ms. Johanna Leblanc

Military commission hearings in the case against Mr. Hadi al Iraqi (a/k/a/ Nashwan al Tamir), an alleged high level member of al Qaida Iraq and liaison with the Taliban, scheduled for earlier in March 2017, were cancelled. The Indiana McKinney monitor who was scheduled to travel to Guantanamo Bay for the Hadi hearings — Ms. Johanna Leblanc — will be scheduled for a subsequent monitoring mission. Ms. Leblanc’s initial blog post on her cancelled Hadi al iraqi hearing mission can be found on www.GitmoObserver.com  here.

 

Conclusion

Though each Indiana monitor has his / her personal perspective and opinions, Indiana monitors act independently and objectively in researching and drafting our Guantanamo Bay Fair Trial Manual and other materials that examine rights and interests of Guantanamo Bay stakeholders. The materials that Indiana has prepared are being used by many who have an interest in what happens (or what does not happen) at Guantanamo Bay. Though persons traveling to Guantanamo may have a particular interest in our Know Before You Go to Guantanamo Bay Guide, there is strong interest in our substantive publications as well.

Indiana monitors contribute to the transparency that the Pentagon has stated that it seeks with the military commissions. Indiana monitors also benefit, whether they travel to Ft. Meade, to Guantanamo Bay, or both.

If you are an Indiana McKinney affiliate – student, faculty, staff or graduate – please check our law school web page here for information on how you might participation in our Guantanamo project.

Anyone interested in our work can check our blog / website / resource database at www.GitmoObserver.com.

George Edwards

Founding Faculty Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Updated Guantanamo Bay Fair Trial Manual & “Know Before You Go to Guantanamo” Guide

The Gitmo Observer has updated 4 draft documents useful for anyone interested in the Guantanamo Bay, Cuba U.S. Military Commissions, and for anyone traveling to Guantanamo Bay for hearings or other purposes.

Each document is in a preliminary draft stage, with further research, writing and editing underway. Nevertheless, the Gitmo Observer hopes that these materials are helpful.

The documents, which are available for free download below, are:

guantanamo-bay-fair-trial-manual-vol-i-26-february-2017-first-page-pink(1)    Guantanamo Bay Fair Trial Manual (Volume I) – (pink cover – 344 pages) (27 February 2017)

Lists the international and domestic law applied at the Guantanamo military commissions, explains the law, and identifies how the law affects Guantanamo stakeholders, such as the defense, prosecution, victims and victims’ families, witnesses, U.S. military who guard the detainees, the media, and other stakeholders. Explores rights and interests of all stakeholders, not just rights of the defense. 

Contains a useful Glossary for military and legal terms, and for items associated with Guantanamo Bay.

 

guantanamo-bay-fair-trial-manual-vol-ii-26-february-2017-first-page-blue(2)    Appendices to Guantanamo Bay Fair Trial Manual (Volume II) (blue cover – 268 pages) (27 February 2017)

Contains important law documents related to the proceedings, such as the charge sheets (indictments) of the 3 major pending cases, and excerpts from binding human rights and humanitarian law treaties (e.g., Geneva Conventions, Convention Against Torture, Civil & Political Rights Covenant, Race Convention),  the U.S. Constitution, U.S. Supreme Court cases, the Military Commissions Act, Presidential Executive Orders,  and military commission jurisprudence.

 

 

 

(3)    Guantanamo Bay Fair Trial Manual Excerpts (yellow cover — 102 pages) (27 February 2017)guantanamo-bay-manual-excerpts-27-february-2017-yellow-front-cover

A selection of important sections of the Full Guantanamo Bay Fair Trial ManualProvides background information on the military commissions, descriptions of the 3 active Guantanamo Bay hearings, list of previously convicted detainees, the status of current detainees, a schematic of the courtroom (identifying principal courtroom actors), and a Glossary of military and legal terms, and for items associated with Guantanamo Bay.

 

 

 

 

(4)    Know Before You Go To Guantanamo Bay — Tips & Suggestions (green cover — 76 know-before-u-go-to-gitmo-29-dec-2016-front-coverpages) (29 December 2016)

A guide for anyone traveling to Guantanamo Bay for military commission hearings, client visits, media trips, or other purposes. Contains substantial information geared towards non-governmental organization representatives traveling to observe Guantanamo hearings, but much of the information is useful for any traveler. Contains information about lodging, Guantanamo Bay restaurants, evening / weekend adult entertainment (bars), water activities (beaches, boating, swimming),  outdoor activities (hiking, golf, tennis, etc), other sports (bowling, pool), movie theaters, gyms, religious activities (services, fellowships), and more.

 

 

If you have any comments or suggestions for our four documents, please feel free to let us know at GitmoObserver@yahoo.com.

We have received very positive, constructive feedback in the past, and we look forward to further input from you!

Yemeni Guantanamo Detainee to Ask Pentagon to Release Him

 

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al Sharqawi to ask Pentagon on Tuesday to release him from Guantanamo Bay after 15 years in custody 

On Tuesday, 28 February 2017, Abdu Ali al Haji Sharqawi, who is a Guantanamo Bay detainee from Yemen, will appear at a hearing at which he will likely tell U.S. officials that he is not a threat to U.S. national security and that he should be resettled in a 3rd country.

Sharqawi, who is 43 years of age, was picked up in Karachi, Pakistan in February 2002, one month after the first detainees were brought to Guantanamo Bay. He arrived in Guantanamo Bay in 2004, after 3 years in custody under the direction of the U.S., first in Jordan then Afghanistan. It is alleged that he was tortured in Jordan and Afghanistan.

On Tuesday he will argue for his freedom from the incarceration he has endured for almost a third of his life.

The hearing – a Periodic Review Board – PRB

This hearing at which Sharqawi 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.

The Board itself consists 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.

pentagonThe hearing will be held at Guantanamo Bay, but will be transmitted by CCTV to secure locations to permit review by participants and cleared persons who are not physically in the Guantanamo Bay hearing room. I plan to view from a secure room in the Pentagon.

Sharqawi’s PRB hearings

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 that the detainee developed ties to senior al-Qaida leaders such as Usama Bin Laden and Khalid Shaykh Muhammad, associated with al-Qaida plotters and operatives including members of the USS Cole bombing and some of the 9111 hijackers, and probably provided logistical and financial support for al-Qaida operations to include facilitating the travel of fighters from Yemen. Further, the Board noted that the detainee’s statements and behavior while in detention indicate that he remains committed to engaging in violent acts against the United States, the difficulty in assessing his current mindset and credibility due to his decision to not participate in the hearing, and insufficient information presented to the Board regarding his plans if transferred and the support that he would have if transferred.

The Board appreciates that the detainee has engaged with his representatives to participate in the process. The Board looks forward to reviewing the detainee’s file in six months and encourages the detainee to fully participate in any future review.

Sharqawi was entitled to appear at his initial PRB last year and to speak on his own behalf. However, he did not appear, and the Board posted this notice on the PRB secretariat’s website:

“THE DETAINEE CHOSE NOT TO APPEAR BEFORE THE BOARD. THEREFORE, THE DETAINEE SESSION WAS NOT REQUIRED.”

  • File Review. Sharqawi had a PRB file review on 15 November 2016, and on 14 April 2016 the Board concluded:

MEMORANDUM FOR THE RECORD

SUBJECT: Periodic Review Board File Review  Sharqawi Abd u Ali al-Hajj (YM-1457)

On I November 2016, the PRB conducted a file review for Sharqawi Abd u Ali al-Hajj (YM- 1457) 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 14 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 i n accordance with section 3(c) of E.O. 13567. [emphasis added]

  • Full Review. It is Sharqawi’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 send him to a 3rd country – outside the U.S. but not Yemen – for resettlement. The U.S. is not now sending detainees back to Yemen for security reasons.

What will Sharqawi’s PRB be like?

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 second PRB to be held under the Trump Administration, and the first of these, two weeks ago, attracted more NGOs and media than most earlier PRBs. The NGOs and media representatives will view from a secure room at the Pentagon.

Others present for the hearing will include members of the “Board” itself that conducts the PRBs. 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.

 Statements to be made at the PRB

The initial part of the PRB will be unclassified, and that is the portion of the PRB 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.

The Pentagon posted 3 statements to be read at Tuesday’s PRB’s public session:

  1. an Unclassified Summary prepared by the Government;
  2. a Statement by Sharqawi’s private outside lawyer; and
  3. a Statement by Sharqawi’s U.S. government-appointed non-lawyer “personal representative. The bodies of these three short statements are reproduced below.

The Unclassified Summary prepared by the U.S. Government to present at the PRB states, in full:

Sharqawi Abdu Ali al-Hajj (YM-1457), a.k.a. Riyadh, is a career jihadist who acted as a prominent financial and travel facilitator for al -Qa’ida and was closely tied to several senior al -Qa’ida members, including Usama Bin Ladin and Khalid Shaykh Muhammad (KU-10024), although he has repeatedly denied being an al-Qa’ida member. During his detention at Guantanamo, Riyadh has been semicompliant with the guard force and, until late 2004, provided his interrogators with a wealth of information on his extremist activities and associations. Riyadh remains a steadfast supporter of extremist causes and groups, most likely continues to view America as his enemy, and has praised recent acts of terrorism. There are no indications that Riyadh’s Yemen-based family members have engaged in extremist activities, although connections to extremist networks could offer Riyadh a potential path to reengagement in Yemen.

The private counsel for submitted a statement that provides, in full:

Members of the Periodic Review Board:

Good morning.  My name is Pardiss Kebriaei, and I am Private Counsel for Sharqawi Al Hajj.

Thank you for the opportunity for Mr. Al Haij’s subsequent full review. We are encouraged that the Periodic Review Board has been continuing its work.  The board’s purpose of whether continued detention is still necessary is vital for men like Mr. Al Hajj, who has been held in U.S. custody for over 15 years.

I am currently a Senior Attorney at the Center for Constitutional Rights, which has represented Guantanamo detainees since 2002, including dozens of men whom the United States, under the Bush and Obama administrations, has successfully repatriated or resettled.  I have represented detainees for nearly ten years.  I have represented Mr. Al Hajj since last year.

I’ll make a few brief points about the past, present and future with respect to Mr. Al Hajj.

With respect to the past: In Mr. Al Hajj’s habeas proceedings, the government’s case-in-chief relied on statements Mr. Al Hajj made during several interrogations in Bagram and Guantanamo in 2004.  To the extent the board is considering any of this information as part of this review, it should know that then-Chief Judge Royce Lamberth of the D.C. District Court struck all of these statements as unreliable; he found that they were tainted by prior physical and psychological coercion Mr. Al Hajj experienced in prisons in Jordan and Kabul after his capture.  Mr. Al Hajj is here to answer your questions about his present views and conduct, and his future intentions, but this point about the past bears noting.

With respect to the present: Mr. Al Hajj is 43 years old today.  The impulses and views that led to his detention were by a young man in his 20s.  The government’s unclassified profile of Mr. Al Hajj states that he ”most likely continues to view America as his enemy.” That description is outdated.  Mr. Al Hajj’s detention has necessarily entailed interactions with Americans of different stripes over the years that have complicated and changed his view. Blanket statements no longer apply.

Moreover, Mr. Al Hajj’s health may be seriously compromised.  He reports bouts of jaundice and weakness which, according to independent physicians with whom his counsel have consulted, may indicate a potentially grave liver condition that should be investigated.  A medical expert opinion is included in Mr. Al Hajj’s detainee submission.  Far from having the desire or energy for any involvement in conflict, the hardship of the past 15 years makes him want to tum away.

Finally, with respect to the future: Mr. Al Hajj would accept resettlement in any safe country the government believes appropriate.  His family stands ready and able to provide financial and moral support for his reintegration wherever that may be, as they have stated in the detainee submission.  My organization, which has worked closely with envoys from the Defense and State Departments on detainee transfers in prior years, also stands ready to assist.

Sharqawi’s “personal representative”, who is a non-lawyer appointed by the U.S. military, submitted a statement that provides, in full:

Members of the board, thank for allowing Mr. Sharqawi Abdu Ali Al-Hajj to have a second chance at hearing his case. I am his Personal Representative. He made the decision to not attend his first board because he did not feel confident sitting before the board without a Private Counsel. At that time, he still feared that the Board was a legal proceeding versus an administrative board and therefore, he did not want to attend without having his lawyer present.

But, since that time, he has attended every meeting with me and been very cordial. He is easy to get along with and is obviously a very intelligent person, who communicates well. He has worked well with both a female Personal Representative and Private Counsel.

Since Sharqawi has moved camps, he has worked to build his relationships with fellow detainees. During our conversations, he has indicated that since he has been here, he has learned to appreciate other people’s cultures which he had not before. He is actively participating in classes to prepare for life after Guantanamo and he speaks English quite well. His Private Counsel has been in contact with his family to confirm that they will support him after his departure from GTMO. He is open to repatriation anywhere and feels he is capable of working in other cultures since he has learned to work with other detainees in GTMO.

I appreciate your consideration of his case today as he answers your questions so you can decide if he still poses a threat to the U.S.

 Conclusion

So far as we can tell, Sharqawi’s PRB is still scheduled to go forward on Tuesday, 28 February 2017. That is, the Pentagon has not notified us that it will not go forward. If it does go forward, it seems likely that Sharqawi will attend, which he did not do for his initial PRB last year.

Please watch this space for an update post-PRB.

George Edwards

Founder, Periodic Review Board (PRB) Project

Guantanamo Bay, Cuba U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law (PIHRL)

Indiana University McKinney School of Law

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First Guantanamo hearings in Trump Era possibly derailed

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Cheryl Bormann, counsel to 9/11 case defendant Waleed bin Attash, did not travel to Guantanamo Bay reportedly due to a medical emergency. (Photo from Flickr)

The first Trump-Era Guantanamo Bay war crimes hearings are set to commence tomorrow, 25 January 2017, but they may be derailed. A death penalty lawyer for one of the accused is absent from Guantanamo this week due to a medical emergency, and it is unclear whether hearings can or will go forward in her absence. Her client, one of the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon, is entitled to death penalty counsel. Ms. Bormann is the only death penalty lawyer who is representing him.

 

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Walid bin Attash, a 9/11 case defendant who faces the death penalty, is without his death penalty lawyer for this week’s hearings at Guantanamo

The military judge for the case ordered that the hearings go forward on Wednesday morning, 25 January 2017, despite objection by the defense. If hearings commence on Wednesday morning as scheduled, it is unclear whether they will continue for the full 2 scheduled weeks, or whether they will come to a hasty end Wednesday, Thursday or Friday if objections continue.

Hearing participants — travel to / from Guantanamo

The hearings are held at the remote Caribbean island U.S. Naval Base at Guantanamo Bay, yet the only participants in the hearings who reside at Guantanamo Bay are the detainee defendants. Virtually everyone else involved lives in the mainland U.S., and must be shuttled down.  Typically a day or two before hearings commence, hundreds participant convene at Andrews Air Force Base outside of Washington, D.C. and board a military plane for Guantanamo. This includes the judge and his staff, the prosecution team, 5 sets of defense lawyers and their staff, interpreters and translators, media, independent observers / monitors, and victims and victims’ family members. If hearings last for two or more weeks, on the weekend in between planes shuttle to / from Guantanamo Bay swapping out media, observers / monitors, and victims and their family members, most of whom attend for one week at a time only.

A question remains as to whether a plane will depart Andrews as scheduled on Saturday, 28 January 2016, carrying observers / monitors, media and victims and their family members for hearings next week, or whether next week’s hearings will be cancelled.

Docketing Order

Earlier this month the court’s docketing order listed topics to be covered this week and next. Here is the docketing order:

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George Edwards

Professor of Law

Indiana University McKinney School of Law

Founder, Military Commission Observation Project & GitmoObserver

Founder, Program in International Human Rights Law

Obama Inauguration Flag to be Donated to Indiana National Guard After Flown at Guantanamo on 9/11 Anniversary

 

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With flag flown over Guantanamo’s Camp Justice on the 15th Anniversary of 9/11 (September 11, 2016), and flown over the U.S. Capitol on Barack Obama’s Inauguration Day (January 20, 2009)

A U.S. flag flown over Guantanamo Bay, Cuba on the 15th Anniversary of the 9/11 Attacks on the World Trade Center and the Pentagon had also flown over the U.S. Capitol Building on the day Barack Obama was inaugurated as U.S. President, 20 January 2009, exactly 8 years ago today.

Five alleged masterminds of the 9/11 attacks who are detained at Guantanamo face war crimes trials there by U.S. Military Commission. The courtroom is at Guantanamo’s Camp Justice, where the Obama inauguration flag was flown on 11 September 2016, the 15th anniversary of 9/11

This flag flown at the inauguration and on the 9/11 anniversary is being donated to the Indiana National Guard to hang in their Armory in Indianapolis.

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Indiana’s Adjutant General, Maj. Gen. Courtney P. Carr speaks at a departure ceremony for 60 Hoosier Guardsmen with the 38th Infantry Division in Indianapolis, 20 November 2015. The Guardsmen were to “oversee safe, secure, humane, legal, and transparent care and custody of detainees at Guantanamo Bay, Cuba.” (Photo by Sgt. 1st Class Jeff Lowry)

Why donate this flag to the @Indiana National Guard?

In September 2016, about 90 soldiers from the Indiana National Guard, 38th Infantry Division, the Cyclone Division were finishing a 9-month deployment to Guantanamo Bay (2015 – 2016), with another 90 of their soldiers commencing a 9-month deployment to the remote island naval base (2016 – 2017). The soldiers performed various functions across the base, from public affairs, to logistics, to law.

In September 2016, I hand-carried the Obama Inauguration flag to Guantanamo Bay, Cuba, and it was flown there on 11 September.

The Indiana University McKinney School of Law, where I have taught for many years, has a long history with Guantanamo Bay. My students and I became involved with Guantanamo in 2003—conducting research, providing research memos, consulting (and I was called as an expert witness on a Guantanamo case).

Our Indiana law school has also been sending students, faculty, staff and graduates to Gitmo for years as independent Observers / Monitors, and through our Military Commission Observation Project undertake to attend, observe, analyze, critique and report on Military Commission hearings. We have produced the Guantanamo Bay Fair Trial Manual, which examines rights and interests of a range of Guantanamo stakeholders, including the defendants, the prosecution, defense counsel, victims and their familes, observers, witnesses, soldiers deployed to Guantanamo, media, and others.

Furthermore, we at the law school have produced Know Before Your Go to Guantanamo Bay, which is available for anyone who travels to Guantanamo Bay for any purpose, related to the Military Commissions or otherwise, as it provides information about the Commissions as well as about many non-Commission aspects of Guantanamo Bay.

A forthcoming book is The Guantanamo Bay Reader, which tells the story of the Guantanamo Bay Military Commissions from the mouths and perspectives of those who have shaped, are shaping, and will shape the Guantanamo Bay experience.

Many Indiana Guard members have been Indiana law students / graduates, and some of them have been deployed to Guantanamo Bay.

The Indiana Cyclones have sent troops to Guantanamo for years, and indeed have a long history of servicing the nation there and elsewhere, with multiple deployments to perform military duties in places such as Afghanistan and Kosovo in addition to Guantanamo.

Another flag with inauguration / 911 anniversary provenance

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Indiana McKinney law graduate at Camp Justice (Guantanamo) in front of the flagpole where the Inauguration flag was flown on 9/11 2016. The US flag is at half-mast for the death of former US Supreme Court Justice Antonin Scalia.

I have another flag with identical provenance – flown above the US Capitol 8 years ago today, and flown at Camp Justice on the 15th anniversary of 9/11.

I am donating this 2nd flag to the Indiana University McKinney School of Law to hang in our building – to help demonstrate the overlapping Guantanamo Bay connections of the Indiana National Guard and our students, faculty, staff and graduates, and to demonstrate our pride at the great service performed for the school, the city of Indianapolis the state of Indiana the U.S., and the international community.

Hanging next to these donated flags – at the Indiana National Guard Armory and at the law school — will be the framed President Obama Inauguration Certificate, the framed Gitmo Camp Justice Certificate, and a framed letter explaining all of the above.

George Edwards

At Joint Base Andrews Flying to Guantanamo Bay, Cuba

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Sunrise over the snowy Joint Base Andrews Airstrip.

[Posted on behalf of S. Willard]

This morning (Sunday the 8th of January) I am traveling to Guantanamo Bay, Cuba to serve as an observer / monitor of criminal hearings in a U.S. military commission case against Abd al Hadi al Iraqi, who is an alleged high ranking member of al Qaeda Iraq and liaison with the Taliban. The U.S. has charged with war crimes resulting in deaths.

I am an Indiana University McKinney School of Law student on mission representing the Indiana University Program on International Human Rights Law’s (PIHRL) Military Commission Observation Project (MCOP). As an observer / monitor, my role is to attend, observe, analyze, critique and report on the military commissions – both the substance and the process.

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My passport and Gitmo flight boarding pass.

I arrived at Andrews Air Force Base, just outside of Washington, DC, at 5:00 a.m. for my flight to Cuba, which is supposed to depart at 8:00 a.m. I checked in for my flight, presenting my passport, my Military Orders, and my APACS (which I explain in an earlier blog). It looks like the flight is on schedule this morning.

I met my fellow NGO observers from different human rights groups (NGOs), and we are almost ready to board our plane to take off for Guantanamo Bay, Cuba from Andrews Air Force Base (which is the home of Air Force 1). We were told that the travel will be about 3 hours and 15 minutes.

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My boarding pass for Gitmo, & my yellow Guantanamo Bay Fair Trial Manual: Excerpts.

I have my boarding pass in hand (see the photo) and my yellow Guantanamo Bay Fair Trial Manual: Excerpts copies of which I distributed to the other observers.

I took a few photos at Andrews this morning. I will post additional photos and substantive posts when I arrive at Guantanamo Bay. Because I am having trouble with wifi at Andrews, I am asking Professor Edwards (the Indiana program founding director) if he will post this Andrews Post for me.

Sheila Willard (J.D. Candidate, ’18)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

(Posted by G. Edwards on behalf of S. Willard)

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Are you going to Guantanamo? New Manual Excerpts for NGO Observers & Others

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Click this link for the full Manual — over 500 pages. Below you can download the Manual Excerpts!

If you’re going to Guantanamo Bay in January 2017, you might be interested in our new Guantanamo Bay Fair Trial Manual: Excerpts that offers insights into:

  • what the right to a fair trial is and how a fair trial should look
  • how to assess whether a fair trial is being afforded to all Guantanamo stakeholders
  • roles & responsibilities of independent Observers sent to monitor Guantanamo hearings
  • background info on Guantanamo the military commissions
  • a schematic of the courtroom (so you can know who is who)
  • and a 76 page “Know Before You Go To Guantanamo” insert that will tell you what to expect on your flight to Cuba, the ferry ride across Guantanamo Bay from the landing strip to your Quonset Hut accommodations, base security, food (which can be quite good!), beach, boating, and of course the courtroom, the hearings, and briefings by the prosecution and defense.

In the past, the Gitmo Observer (of Indiana University McKinney School of Law) distributed Manual Excerpts to Observers after we arrived at Andrews Air Force on the morning of our flight to Cuba (or distributed at Ft. Meade, Maryland, for Observers monitoring live by secure video-link from Cuba). Observers said they wish they had had it earlier.

So, we started to e-mail the Manual Excerpts to Observers as soon as we were sent e-mail addresses of Observers scheduled to travel, and we would receive those e-mails 3 – 6 days before the scheduled departure. Observers said that they wish they had it even earlier than that, that 3 – 6 days in advance wasn’t enough time.

So now we are posting the Manual Excerpts on this site, for access by anyone interested, whether or note traveling to Guantanamo Bay (or Ft. Meade or elsewhere), but especially for those traveling to Guantanamo Bay to monitor 3 weeks of January 2017 hearings. Ideally, about 40 independent observers would travel to Gitmo this month, to fill all the slots allocated to observers.

The Defense Department has stated that it favors strong and robust transparency. Having full complements of Observers for each hearing week would help promote transparency, human rights, and the rule of law for all military commission stakeholders (with stakeholders including the defense, the prosecution, victims and their families, witnesses, the media, observers, observer escorts / minders, the public, the U.S. soldiers and others who operate the detention facilities, the military commission court staff, and others).

Here are the Excerpts! Please let us know if you have any suggestions for improving our Excerpts, our full Guantanamo Bay Fair Trial Manual (over 500 pages in 2 volumes!) and our Know Before You Go To Guantanamo Guide (76 pages). Send to GitmoObserver@yahoo.com

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What you may want to know before traveling to Guantanamo Bay’s war crimes court

omc-legal-signDid you receive a rare Pentagon invitation to travel to Guantanamo Bay for war crimes hearings?

If so, are you searching for info on how to prepare for a Guantanamo trip, what to pack, will your U.S. mobile phone work, what about internet access, how is flying on a military plane from Andrews Air Force Base different from flying civilian, do you need your passport, can you meet detainees and see the prisons camps, will you have the resources needed to accomplish your Guantanamo mission / goals?

Each new Guantanamo traveler has these and other questions, which are answered in this revised and expanded Know Before You Go to Guantanamo Guide (downloadable below).

In 24 Chapters (76 pages, 2 Appendices), the Guide speaks directly to non-governmental organization (NGO) observers, who play a specific, valuable role at Guantanamo Bay. The Guide anticipates new observers’ concerns, and addresses them methodically and comprehensively, and helps observers prepare for their missions. The Guide may be helpful for anyone traveling to Guantanamo hearings, including media, court staff, witnesses, foreign government representatives, etc.

The Guide notes that monitors (also to as “non-governmental organization observers” or “NGO observers”) have the responsibility to attend, observe, analyze, review and critique Guantanamo Bay Military Commission (war crimes) hearings. This requires substantive preparation before traveling to Guantanamo, full schedules on the ground there, and follow-up upon return to the U.S.

Monitors (and others) must eat, sleep and exercise at Guantanamo and the Guide informs about that, and about Guantanamo tourist attractions, souvenirs, and entertainment such as outdoor movies.

Here is the Guide:

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Pentagon’s observation / monitoring program

The Pentagon has been permitting NGO observers to travel to Guantanamo Bay, Cuba to monitor cases against men charged with heinous crimes concerning the 9/11 World Trade Center and Pentagon attack, the 2000 bombing of the U.S.S. Cole off the coast of Yemen, and other incidents.

The monitors, who must be U.S. citizens, include representatives of human rights groups, lawyers, judges, law professors and law students, and the non-legal community members.

The Pentagon has stated that it invites monitors to promote transparency — for monitors to be the eyes and ears into Guantanamo to the outside world. Monitors attend, observe, analyze, critique and report on the substance of the war crimes hearings themselves and on the process involved in the proceedings.

Monitors assess how transparent the proceedings are, and examine whether the monitors are given the access to the personnel, proceedings, resources they need to perform their assigned tasks.

Monitors tend to travel for one week at a time, departing the U.S. on a weekend and returning the following weekend, with hearing days scheduled Monday – Friday of that week.

We hope that the Know Before You Go to Guantanamo Bay Guide is helpful to you as you prepare for your mission!
Good luck!
PS:  If you have any comments / suggestions / tips to be included in the next iteration of the Guide, please let us know in a comment below. Or, please send an e-mail to us at GitmoObserver@yahoo.com.
Thank you in advance!

I’m heading back to Guantanamo Bay, Cuba today 

My Guantanamo Bay flight boarding passport and passport, and my Guantanamo Bay Fair Trial Manuals.


It’s 3:59 a.m. and I just arrived at Andrews Air Force Base for my 5th or 6th trip to Cuba since the 2016 summer, and my second trip to Guantanamo Bay since the November Presidential Election. 

4:15 a.m. Sunday at Andrews Air Force Base.


This time I’m monitoring hearings in the US Military Commission against al Nashiri, who allegedly masterminded the 2000 attack on the USS Cole off the coast of Yemen, killing and wounding dozens of US sailors. He is charged with a series of war crimes and faces the death penalty. 

The Andrews USO area.


My job as a human rights law monitor (or observer) is to attend, observe, analyze, critique and report on these pre-trial hearings. We are interested in whether the rights and interests of all military commmission shareholders are being afforded to them. “Stakeholders” include the defendants, and also include the victims and their families, the media, the prosecution, witnesses, the US and international communities, among others.

This should be an interesting week. We have 5 days of pre-trial hearings scheduled. The issues are plentiful, with some being novel. 

As I’m sitting here at Andrews, I’m observing al Nashiri’s lawyers enter the terminal, members of the prosecution team, human  rights group (NGO) representatives, IT staff, trial judiciary staff, and others, all waiting for our 8:00 a.m. flight. 

Why arrive at 4:00 a.m. for an 8:00 a.m. flight? Well, because we were instructed to do so. That’s it. 

Jefferson Memorial–3:45 a.m.–while driving to Andrews Air Force base.


George Edwards

Yemeni Detainee asks Obama Administration to release him from Guantanamo

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al Ansi in a Department of Defense photo.

Today, after 14 years imprisonment at Guantanamo Bay, Cuba, a Yemeni detainee named Mohammad Ahmad Abdallah al Ansi asked the U.S. Government to transfer him from Cuba to a third country. If released, 58 detainees would remain at Guantanamo, down from a record high of 780 detainees.

This parole board like hearing is called a Periodic Review Board (PRB), and was convened pursuant to President Obama’s 2011 Executive Order calling for PRBs to ascertain whether detainees pose a continuing threat to the national security of the U.S. If a detainee does not pose such a threat, he may be repatriated to his home country or transferred to a third country. It is unknown whether the next President will rescind this Executive Order and cease Period Reviews, and whether any of the 5 dozen remaining detainees will be released after January 2017.

President Obama’s 2011 Executive Order calls for three types of PRBs: (a) an Initial PRB for all detainees, involving a hearing at which the detainee may appear and speak on his own behalf; (b) a file PRB, held 6 months after a detainee is denied release following an initial PRB and which detainees are prohibited from attending; and (c) a full PRB, held if after a file review the Board finds that the detainee is a “continuing” risk to US national security.

Al Ansi, who is also known as prisoner number YM – 029, had his initial PRB in February 2016, a file PRB in September 2016, and a full PRB today. This article discusses the initial, file and full reviews.

al Ansi’s initial PRB

At al Ansi’s initial PRB on 23 February 2016, he appeared in person. On 23 March 2016, a month after the initial PRB, the Board made its final determination as follows:

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 significant derogatory information regarding the detainee’s past activities in Afghanistan. Further, the Board noted the detainee’s lack of candor resulting in an inability to assess the detainee’s credibility and therefore his future intentions.

The Board looks forward to reviewing the detainee’s file in six months and encourages the detainee to continue to be compliant, continue taking advantage of educational opportunities and continue working with the doctors to maintain his health. The Board encourages the detainee to be increasingly forthcoming in communications with the Board.

al Ansi’s file review PRB

After his initial PRB, al Ansi had a file review PRB, which he was not permitted to appear, with a Board determination based only on his written “file”.  His file review was held on 13 or 14 September 2016 (according to http://www.prs.mil), and on 14 September 2016 (according to the written file review final determination) the Board ruled as follows:

MEMORANDUM FOR THE RECORD

SUBJECT: Periodic Review Board File Review – Muhammad Ahmad Abdalla al-Ansi (YM- 029)

On 14 September 2016, the PRB conducted a file review for Muhammad Ahmad Abdalla al­ Ansi (YM-029) 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 23 March 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.0.  13567.

I watched al Ansi's PRB broadcast live from Guantanamo Bay into a nondescript Pentagon conference room this morning, with a handful of human rights advocates and one member of the media.

I watched al Ansi’s PRB broadcast live from Guantanamo Bay into a nondescript Pentagon conference room this morning, with a handful of human rights advocates and one member of the media.

al Ansi’s Full PRB

Today’s PRB (6 December 2016) as Ansi had a “full” PRB review.

Today’s full PRB, like all the other PRBs, was held at Guantanamo Bay. Today’s session was broadcast by live close circuit TV (CCTV) to a secure location at the Pentagon for viewing by non-governmental organizations and the media.

I observed the hearing in a modest Pentagon conference room, joined by representatives of non-governmental organizations (Judicial Watch, Heritage Foundation, ACLU, and Human Rights First) and the media (Courthouse News). When we watched these proceedings piped in from Guantanamo, we also had 2 to 3 military or civilian escorts or technicians in the room with us, but I will not reveal further information about the identities, ranks or affiliations of these individuals (all of whom are always very friendly and nice!).

Members of the PRB Board – which comprises one representative each from the Departments of Homeland Security, State, Justice and Defense; the Joint Chiefs of Staff; and the Office of the Director of National Security – were not physically at Guantanamo Bay, but watched the proceedings from the D.C. area, presumably from their respective offices.

It is unclear when the Board is expected to make a final determination on this full PRB, and whether that determination will be made before the Obama Administration ends on 20 January 2017.

Some of the words spoken during the hearing were in Arabic, and were spoken by an on-camera interpreter.

An off camera voice, presumably from but not necessarily from Guantanamo, advised in English on the nature of the hearing, the format, and the short agenda.

Another off camera voice read aloud the government’s “unclassified summary statement”, in English, of behavior that al Ansi allegedly engaged in, both before he arrived at Guantanamo and after he arrived.

After the government’s unclassified summary statement, the personal representative read an opening statement in English.

Then, al Ansi’s private counsel read a statement, also in English.

After the statements, an off camera voice asked if anyone had any questions. There were none.

The unclassified portion of hearing ended roughly 15 minutes after it started. Observers were invited to leave the conference room, since Observers are not permitted to observe classified portions of the PRB hearings.

Who is Mohammad Ahmad Abdallah al Ansi?

He is 40 or 41 years of age, born in Yemen. The government paints a picture of him as an avowed war criminal member of al Qaeda, as being loyal to Osama bin Laden, and as a person slated for an aborted hijacking in Asia meant to coincide with 9/11. The government has kept al Ansi in prison at Guantanamo Bay for over 14 years, and has on multiple occasions affirmatively ruled that he posed a threat to the national security of the U.S. Indeed, this same PRB ruled twice this year (February and September 2016) that al Ansi should not be released.

al Ansi’s personal representative and private counsel painted a different picture of al Ansi. The private counsel spoke about al Ansi’s suitability for release, and what he might do constructively upon release. Though the personal representative did not directly speak to the issue of whether he thought al Ansi posed a continuing threat to U.S. national security, the personal representative did not speak against release.

Today’s hearing itself

Today’s full PRB hearing commenced about 9:06 and ended 15 minutes later at about 9:21.

al Ansi sat at the head of a small white rectangular table that appeared to be in a Guantanamo Bay “trailer” (and not in a Guantanamo Bay courtroom). On the long side of the table to his left sat his personal representative in a U.S. military uniform. Directly across from him, to al Ansi right, sat the linguist. Next to the linguist was the private counsel, sitting closest to the camera.

Throughout much of the hearing, al Ansi, who was dressed in white non-descript attire, sat with his elbows resting on the table, hunched a little forward, flipping through documents in front of him, possibly reading through the documents. It was impossible for us to see on the screen what the nature was of the pages in front of al Ansi, or in what language the pages were written. At times he would rest his forearms on the table, with his hand clasped, eyes cast downward.

Government’s unclassified statement

An off-camera woman’s voice read aloud the Government’s “unclassified statement” in which the Pentagon contended that al-Ansi

traveled to Afghanistan in 1999, where he joined al-Qa’ida, swore bayat to Usama Bin Ladin, and served as Bin Ladin’s bodyguard. Judging from other detainee statements and corroborating information [al-Ansi] may have been selected to participate in an aborted hijacking plot in Asia intended to coincide with the 9/11 attacks. He was captured by Pakistani authorities after the battle of Tora Bora in 2001. [al-Ansi] has been mostly compliant with the detention staff at Guantanamo, and his last disciplinary infraction was in June 2014. He has not expressed support for extremist causes or maintained contact with terrorists at large.”

Private Counsel Arguments supporting al Ansi’s request for transfer

al-Ansi’s was represented at this PRB by private counsel Beth Jacob who is a partner at the New York law firm Kelley Drye & Warren, where she represents generic pharmaceutical companies.  Before she joined Kelley Drye & Warren, she represented the Port Authority of New York & New Jersey in litigation arising out of the 9/11 attacks, representing 9/11 victims who sought compensation. She had previously been an assistant district attorney i n New York, prosecuting fraud and official corruption.

She only began representing al Ansi since after his initial PRB ruling finding that he continued to pose a threat to national security of the United States.

She pointed out that al Ansi showed her some of the artwork created at Guantanamo Bay, and she showed it to a New York-based artist, who “was struck by his ability and innate talent , as she has written in her letter to this Board”.

In arguing that al Ansi should be released from Guantanamo Bay, she noted that the New York artist and Reprieve said that. “Mr. al Ansi’s art will stand him in good stead if he is deemed transferrable” for several reasons, including: (a) ‘it will give him something to do and a means of expression, in the first days and weeks after his transfer”; (b) “he will be part of the community of artists, which will provide stability and social contacts; and (c) “there i s the possibility of earnings from his art.” She went further to state that “Mr. al Ansi is planning for more practical ways to make a living – he told me he would like a construction job, and among the many classes that he is taking here at GTMO is one about small business.”

In support of her arguments supporting al Ansi’s transfer, his private counsel argued that his: “family still has resources which they are completely willing to use to help their brother start a new life after Guantanamo , as shown by the statements the family submitted to the first board and this panel. His family will be a stabilizing force when he is transferred.

Further, she argued that his health situation supported transfer, though the details of his health situation were not revealed, as a portion of her letter was redacted. She wrote:

The second factor [supporting transfer] is his health. [Redacted] [Redacted] [Redacted] [Redacted] He knows that managing these chronic conditions takes much time, effort and attention, and that he must follow a strict diet and exercise regimen , in addition to his medications.

She argued that if released, he will also have support of the Carter Center, founded by President Carter, and Reprieve’s Life After Guantanamo project, which has helped over three dozen former detainees.

Personal Representative Statement

al Ansi’s personal representative, who was a military officer in fatigues, read a simple, prepared 1-page statement that noted that

al-Ansi has intensely participated in the PRB process”,  has “maintained a record of perfect attendance for meetings with his Personal Representative (PR) and Private Counsel (PC) despite the constant change in schedulling”, and that his “professional manner throughout all engagements with his PC and PR has not wavered.

The personal representative noted that:

He continues to enthusiastically maintain his compliant behavior with the Joint Task Force (JTF) Guard Force and continues to engage with the JTF Medical Staff in order to deal with chronic health issues.  In addition, Mr. Al-Ansi has not ceased to passionately take advantage of the educational opportunities to include courses in Mathematics , Science, English, Spanish, Life Skills, Computers, Art, and recently started the Arab British Academy for higher education studies.  Since July of 2016, he has created an additional 150 quality works of art.  Seven additional works of art are included in his case submission.  Recently, he has enrolled i n Small Project Management , Business Administration, Accounting and Ledgers classes.

Unlike other personal representatives in other cases, this Personal Representative did not say whether or not he believed that al Ansi is or is not a threat to the security of the United States”.

By George Edwards,

Professor of Law, Indiana University McKinney School of Law

Faculty Director (Founding), Guantanamo Bay Periodic Review Board (PRB) Project

Faculty Director (Founding), U.S. Military Commission Observation Project

Arriving at Guantanamo Bay for Hadi hearing. 

I flew from Andrews Air Force base to Guantanamo Bay, Cuba on a Delta Airlines 757 chartered by the Department of Defense to ferry over 100 people involved with the Military Commission case against Hadi al Iraqi.

I am with a team of 11 representatives of non-governmental organization fouls (NGOs) who are monitoring these criminal proceedings. 

Today’s business on the ground was primarily getting a security briefing, picking up our Military Commission badges, learning our likely program of courtroom and other activities for the week, dinner at O’Kelly’s Irish pub, and playing Taboo. 

Our first hearings are in the morning. 

Members of the Delta cabin crew joined me for photos at the Guantanamo Bay Air Station. 

A couple of the NGOs took photos at Camp Justice, where we are living in tents for the next several days. 

My First Trip to Guantanamo Bay, Cuba Post Trump’s Election 

At Andrews Air Force Base this morning

Usually in my pre-departure blogs before I travel to Guantánamo Bay, Cuba, I focus on the specific detainee whose hearings I am traveling to monitor. This time it is a little bit different.

I’m sitting at Andrews Air Force Base waiting for a plane to Cuba for hearings in the case of Hadi al Iraqi, who is alleged to be a high level member of al Qaeda, liaison between Al Qaeda Iraq and the Taliban, and responsible for deaths of multiple individuals perpetrated in the context of armed conflict.

This is my first trip to Guantánamo Bay under a new administration elect. There are dozens of us here at Andres, sitting and waiting. Everyone is involved with the Military Commission hearings–the prosecution, defense counsel, media, NGOs, court room staff, tech staff, and many others.

How many are asking themselves now whether the new administration will move towards closing Guantánamo Bay, move towards keeping it open, or move towards increasing the numbers of detainees at Guantanamo?

Will members of ISIS or Daesh be sent to Guantanamo? Will “enhanced interrogation” continue at the levels deemed acceptable by the Obama administration, or will it be increased beyond that–at levels deemed by the Obama administration to be unlawful? Will this enhanced interrogation, if it is reinstituted, be conducted at Guantánamo Bay or conducted elsewhere before individuals are taking to Guantanamo Bay?

Will there be additional prosecutions of detainees who have bee at Guantanamo up to 15 years? If so, will there be charges that carry the death penalty?

We should have answers to these and other questions soon enough–if not before 20 January 2017, then certainly soon after.

With NGO colleague Lyn who was with me in September for Hadi hearings st Gitmo

Yemeni Detainee Asks U.S. Board for Release From Guantanamo Bay

This is Salman Yahya Hassan Mohammad Rabei'i, according to a New York Times site. If this is Rabei'i, he has lost most of his hair.

This is Salman Yahya Hassan Mohammad Rabei’i, according to a New York Times site. If this is Rabei’i, he has lost most of his hair.

Today, after 15 years of conferment at Guantanamo Bay, a Yemeni detainee named Salman Yahya Hassan Mohammad Rabei’i asked the U.S. Government to transfer him from Cuba to a third country.

This parole board like hearing is called a Periodic Review Board (PRB), and was convened pursuant to President Obama’s 2011 Executive Order calling for PRBs to ascertain whether detainees pose a continuing threat to the national security of the U.S. If a detainee does not pose such a threat, he may be repatriated to his home country or transferred to a third country.

Rabei’i had an initial PRB in 2015 in which he appeared in person, and that was followed by a “file review” PRB for which he was not permitted to appear. Today’s PRB was a “full” review.

The PRB was held at Guantanamo Bay, but it was broadcast by CCTV to a secure location at the Pentagon.

I observed the hearing in a modest Pentagon conference room, joined by representatives of the media (Al Jazeera, Courthouse News) and other non-governmental organizations (Judicial Watch, Heritage Foundation, and Human Rights First). Also in attendance was Faisal Sadat, who is a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, who this semester is a human rights law intern at Human Rights Watch. He participated today in his capacity as a representative of the Indiana McKinney Periodic Review Project, which is part of the Law School’s Program in International Human Rights Law.

Who is Rabei’i

Rabei’i was 22 when he arrived at Guantanamo Bay. Allegedly, he was “recruited” by his brother Fawaz to travel to Yemen where he allegedly received al Qaida training. The only other substantive involvement that the U.S. Government levels against him is that he “possibly fought in Tora Bora”.

His special representative, who appeared today in a U.S. Military Uniform, said: “I strongly believe that [Rabei’i] is not a threat to the security of the United States and hope that the Board will agree based on the information we have presented, and even more importantly, on [Rabei’i’s] answers here today”.

His private counsel, Shelby Sullivan-Bennis, contended that upon release, Rabei’i would be a beneficiary of Reprieve’s “Life After Guantanamo” program, “which provides a host of vital support mechanisms that carry our clients through the stages of re-integration”. Sullivan-Bennis said that she had met with members of Rabei’i and members of his family multiple times, that he “has an impressive network of family to provide both emotional and financial support, wherever he is resettled”, and that his education while at Guantanamo Bay and his “meticulously written homework assignments”  are evidence that he is “dedicated” – “a trait that will serve him well in application to a new trade and in learning new life skills upon release”.

pentagon

The Pentagon

The hearing

The hearing commenced about 9:04 and ended at about 9:25. Today’s video feed was fuzzier than in the past, and the audio was also lacking. The audio and visual had definitely been better at other Pentagon PRBs, in this same conference room.

Rabei’i sat at the head of a small white rectangular table that appeared to be in a Guantanamo Bay “trailer” (and not in a Guantanamo Bay courtroom). On the long side of the table to his left sat his personal representative in a U.S. military uniform. Directly across from her, to Rabei’i’s right, sat the linguist. Next to the linguist was the private counsel, sitting closest to the camera.

Throughout the 21 minute hearing, Rabei’i sat with his back rigidly straight, almost perfectly still, with his arms resting on the arms of the chair. He wore a white t-shirt with sleeves that barely covered his elbows. The screen was so fuzzy that it was unclear whether his narrow face sported a closely cropped beard, only a mustache, or no facial hair at all. The hair on his head was full, but not long. The very top of his head was not in the camera frame.

The personal representative and private counsel read their statements in English, and the English was interpreted by an off camera female voice.

Around 9:24, seconds before the hearing was set to end, just after his private counsel finished reading her remarks, Rabei’i began to move. He slowly picked up a sheet of paper or two and flipped it over, and did the same thing again with more paper.

A male off-camera voice called for a 15 minute recess. The Pentagon screens went blank when Guantanamo Bay cut our feed. The “public” session of the PRB was over. In 15 minutes they would commence the PRB’s classified portion which we were not permitted to attend.

The NGOs, the media, and our escort and technician left the secure room. The NGOs and media picked up our cameras and cell phones, and were escorted out of the Pentagon.

Faisel Sadat and I took the Metro from Virginia where the Pentagon is to DC. We are looking forward to two PRBs next week – Tuesday (Election Day) and Thursday). Thus far, Faisel is the only Indiana McKinney representative, besides me, to attend a PRB. Faisel has also attended several Guantanamo Bay Military Commission hearings at Ft. Meade, Maryland, that are also broadcast by CCTV from Guantanamo.

The PRBs are currently being conducted pursuant to President Obama’s Executive Order. There is speculation as to whether the next President will continue or abandon the PRB process.

By George Edwards,

Professor of Law, Indiana University McKinney School of Law

Faculty Director (Founding), Guantanamo Bay Periodic Review Board (PRB) Project

Faculty Director (Founding), U.S. Military Commission Observation Project

 

Guantanamo Bay Partial Evacuation – Hurricane Matthew 

Here’s a story from Weather Nation TV about Guantanamo Bay being partially evacuated due to Hurricane Matthew:

Guantanamo Bay Evacuated as Matthew Nears

Back to Guantanamo Bay Post 9/11 Anniversary 

I returned to Washington, DC from Guantanamo Bay on Saturday the 10th of September, and am going back to Guantanamo on Monday the 12th.

On Sunday, the 15th Anniversary of the World Trade Center and Oentagon attacks, my law student Faisel Sadat and I paid respects at Arlington Cemetery. 

Why Guantanamo Bay again?

Last week I was there for pretrial hearings in the U.S. Military case against all Nashiri, who allegedly masterminded the 2000 bombing of the USS Cole off the coast of Yemen, killing 17 US sailors. 

This week I am monitoring the modification of the guilty plead for Majid Khan, who is the only person convicted of crimes among the 61 men being held at the Guantanamo prison. 

I am joined by 6 non-governmental organization (NGO) representatives (pictured above), including one who was with me last week.

We are expected to have only one hour of court this week, on Wednesday. 

Guantanamo Bay lawyers on all sides brief non-governmental organizations (NGOs)

9 NGO representatives following briefing by Guantanamo Bay Chief Prosecutor Mark Martins

9 NGO representatives following briefing by Guantanamo Bay Chief Prosecutor Mark Martins

Non-governmental organizations (NGOs) fly to Guantanamo Bay, Cuba for ringside seats at U.S. Military Commission war crimes proceedings. NGOs, which tend to focus on human rights issues, attend, observe, analyze, critique and report on what they see and hear at Guantanamo. NGOs are windows to the outside world for people without Guantanamo access.

For the first time in recent memory, this week NGOs at Guantanamo had separate briefings by each of the three sets of lawyers involved with a pending case against a particular defendant.

The 9 NGO representatives present were briefed by: (a) the Chief Prosecutor; (b) the Chief Defense Lawyer; and (c) the military and civilian lawyers for al Nashiri, who is accused of masterminding the 2000 bombing of the U.S.S. Cole off the coast of Yemen, killing 17 U.S. sailors and wounding dozens. The NGOs were at Guantanamo for a week of pre-trial hearings in the case of al Nashiri, who faces the death penalty.

The first lawyers’ briefing of the week was by Chief Prosecutor Brigadier General Mark Martins, who is responsible for the prosecution of any and all Guantanamo Bay detainees. He is formally part of the prosecution team against all defendants, including al Nashiri, and he actively participated at the prosecution table in this week’s hearings.

9 NGO representatives following briefing by Guantanamo Bay Chief Defense Counsel John Baker and Deputy Chief Defense Counsel Brent Filbert

9 NGO representatives following briefing by Guantanamo Bay Chief Defense Counsel John Baker and Deputy Chief Defense Counsel Brent Filbert

The next lawyers’ briefing was by Chief Defense Counsel Brigadier General John Baker, joined by Deputy Chief Defense Counsel Captain Brent Filbert.  General Baker is responsible for all defense counsel on all Guantanamo cases, and is not part of the al Nashiri defense team or of any other defense team. Neither he nor Captain Filbert has an attorney client privilege with any detainee.

The final lawyers’ briefing was by civilian and military attorneys for al Nashiri. These were civilian lead counsel (Learned Counsel Rick Kammen) and military co-counsel (Lt. Commander Jennifer Pollio).

NGOs with al Nashiri's Learned Counsel Rick Kammen and military co-counsel Lt. Commander Jennifer Pollio.

NGOs with al Nashiri’s Learned Counsel Rick Kammen and military co-counsel Lt. Commander Jennifer Pollio.

These briefings offered the 9 NGOs insights into a range of perspectives on Guantanamo law and practice. The NGOs on this mission, who agreed that these briefings were insightful and very helpful, expressed hope that the NGO briefings would continue when future NGO representatives travel to Guantanamo for future hearings.

Substance of the briefings

Predictably, the three briefings focused on similar issues. Military Commission fairness (or not). Compliance with U.S. and international law (or not). Transparency of the process (or not). Rights afforded to all stakeholders (or not). Comparisons among U.S. federal criminal law and criminal procedure, the Uniform Code of Military Justice (UCMJ), and the Military Commission substantive and procedural statute, regulations and rules (favorable / unfavorable comparisons).

The lawyers expressed different perspectives on the pace of the proceedings, to whom delays should be attributable, and logistical and other issues regarding trials at Guantanamo Bay versus on the U.S. mainland. They also shared on more personal issues, such as their careers and families, and possibilities for life for the lawyers after Guantanamo. And yes, the topics of Guantanamo iguanas, banana rats, gnats and mosquitos came up.

None of the briefings was on the record, and of course none included any classified information. All the briefings helped NGOs understand critically important matters related to the case at bar – against al Nashiri – and about larger Guantanamo-related issues.

Briefing Style; Briefing Tools

Each of the briefings differed from the others. Each lawyer had a unique personal style, had particular messages they apparently wanted to convey, and used different means to communicate with the NGOS — including visual aids.

Briefing tools used during the week included (without disclosing which lawyers used which briefing tools!): CDs that contain papers for motions on the week’s docket; basic Military Commission instruments and other information projected onto a screen and a staffer to navigate such; CD readers for NGOs whose new generation laptops lack CD drives; prepared remarks; a scribe to record briefing notes; e-mail addresses and invitations for further NGO communication; a follow-up invitation to a bar-b-que (that served Subway sandwiches!); and a staffer who served as photographer for group and individual shots of the lawyers and the NGO representatives.

[Sidebar – The NGO representatives came into contact with various members of the lawyers’ staffs. In every instance those staff members were helpful, informative, and genuinely interested in assisting the NGOs. And, without exception, each staffer was friendly, pleasant, and just nice — both formally during the briefing, and informally when we would bump into them around the Guantanamo Bay Naval Station, whether at Subway or another restaurant, the gym, the bowling alley, or the Guantanamo airport or Andrews Air Force Base.]

Conclusion

NGOs huddled during the week seeking to think of ways that the lawyers might further enhance the NGO experiences. Among the NGO suggestions were for the lawyers to provide NGOs — before the NGOs depart for Guantanamo Bay —  a short summary of the week’s expected motions, the statutory and other information on the CD that was provided, statements / remarks to be presented by the lawyers to the media (if available), and confirmation that the briefing will take place (to prevent NGOs from having to inquire as to whether a particular briefing will occur).

Some of the NGOs wondered about the venues of the different briefings, and who decided which briefings were held in which venue.

Venue 1:  The Media Operations Center (MOC), in a room with cushioned chairs, a blue velvet stage curtain, high tech audio / visual equipment, and parasol shades for camera lighting.

Venue 2:  The NGO Resource Center, barren, with the lawyers sitting on folding card-table chairs.

The NGOs unanimously agreed that the NGO briefings by all sets of lawyers were very helpful to the NGOs as they seek to fulfill their remit of attending, observing, analyzing, critiquing and reporting on the U.S. Military Commissions.

If NGOs are to be the eyes and ears to the outside world, they should be able to see and hear from the lawyers who are most intimately involved with the Guantanamo Bay cases.  The NGOs all hope that briefings by all sets of lawyers will become routine at Guantanamo Bay during weeks when hearings or trials are held.

Full NGO briefings by Guantanamo Bay lawyers promote transparency, human rights, and the rule of law.

_______

al Nashiri

Going to Guantanamo to Monitor War Crimes Hearings

The sun rises this morning at Andrews Air Force Base as we gather to fly to Guantanamo Bay.

I’m at Andrews Air Force Base again, at sunrise, heading for Guantánamo Bay, Cuba. This time I’m scheduled to attend hearings in the US military commission case against al Nashiri, who it is alleged to have masterminded the 2000 bombing of the USS Cole off the coast of Yemen, killing 17 US sailors. I’m to monitor the proceedings from an international law perspective.

The Hearings

al Nashiri has not had a hearing in 18 months. The court sessions were stayed for this period, during which time conflict and controversy has not ceased. 

The 3 days of hearings this week, if they go forward, may cover dozens of substantive issues the military judge listed on a scheduling order filed in August. It is not clear how much can be accomplished in 3 days. History has shown that during hearing weeks, often there is very little court time. Issues have often arisen, detailing hearings. 

al Nashiri

Some pre-trial issues in the pasta have related to his treatment while in CIA black sites beginning in 2002 for 4 years, where the Senate Torture Report and other sources (including al Nashiri himself) have identified the following practices against al Nashiri – waterboarding (admitted by the government), mock executions, stress positions, and threats of sexual violence against his mother.

Another issue is the length of time between 2002 when he was arrested and now, 14 years later, without his trial beginning. Numerous other issues, some pending before or decided by the military commission or by other courts, appear to stand in the way of a firm trial date in the foreseeable future. 

Human Rights Observers on this Trip

Today 9 non-governmental Organization representatives are set to travel to Guantánamo, to monitor this weeks hearings. I am representing the US Military Commission Observation Project (MCOP) which is part of the Program in International Human Rights Law of the Indiana University McKinney school of Law. We have been sending IU McKinney faculty, staff, students, and graduates to Guantánamo Bay to monitor hearings in these poor crimes trials.

Our Indiana mission includes to attend, observe, analyze, critique and report on these proceedings. We hope to promote transparency, in line with the Pentagon’s stated goal of transparency for these proceedings.

We also seek to shed light on the internationally recognized human rights that should be afforded to all stakeholders in these proceedings. Stakeholders include the defendants, who have rights and interests. Stakeholders also include the prosecution, victims and victims’ families, the media, the monitors, the military charged with operating the detention center, and many other individuals and groups.

We are producing the Guantanamo Bay Fair Trial Manual, which explores the full range of Guantanamo stakeholders’ rights and interests. 

More blog posts will be posted as we continue to monitor the hearings this week

Guantanamo Bay Hearing for USS Cole Bombing Suspect

Courtroom sketch of al Nashiri by artist Janet Hamlin. Today in court he was wearing a similar white jumpsuit.

Guantanamo Bay courtroom sketch of al Nashiri by artist Janet Hamlin. (copyright Janet Hamlin)

A U.S. Military Commission at Guantanamo Bay, Cuba has scheduled pre-trial hearings next week in the case against Abd al-Rahim al-Nashiri, who allegedly masterminded the 2000 USS Cole bombing that killed 17 U.S. sailors off the coast of Yemen.

At pre-trial hearings defense and prosecution lawyers routinely debate evidentiary, jurisdictional, logistical and other issues, and deal with matters such as what evidence will be admissible at trial, which witnesses will be called and when, whether the court possesses jurisdiction to hear the case, and what date to set for the trial to commence.

What is typical (or atypical) about the al Nashiri pre-trial hearings, about his case itself, or about his plight before other tribunals that have or could exercise jurisdiction? Is his case more complex than others?

Multiple courts have either resolved issues related to charges against al Nashiri or have sought to resolve such issue, or to exercise such jurisdiction. These proceedings appear to have extended beyond routine evidentiary, jurisdictional or logistical issues.

Though the military commission judge identified issues to be debated next week (see his 12 August 2016 docketing order below), it is unclear what will be heard. Indeed it is unclear whether the hearings will go forward. al Nashiri hearings were stayed for almost a year, and when they were set to resume in April, they were abruptly postponed until now. Though many dozens of us are gathered in Washington, DC for a post-Labor Day flight from Andrews Air Force Base to Guantanamo, the hearings can be cancelled at any moment, even after we touch down at Guantanamo Tuesday afternoon.

The stakes are high, as proceedings in different courts could result in one, more or all the charges against al Nashiri being permanently dismissed.

The USS Cole after it was attacked by suicide bombers in October 2000 in Yemen. (Photo courtesy of United States Marine Corps)

The USS Cole after it was attacked by suicide bombers in October 2000 in Yemen. (Photo courtesy of United States Marine Corps)

al-Nashiri is charged with multiple war crimes, including perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, attacking civilians, and attacking civilian objects. He faces the death penalty.

Courts’ jurisdiction

Several courts have exercised or sought to exercise jurisdiction over al Nashiri, that is, the courts have or have sought to resolve matters related to his detention or his alleged crimes.

First is the military commission itself at Guantanamo Bay. al Nashiri was picked up in 2002, held in secret CIA camps for about 4 years, taken to Guantanamo Bay in 2006, and arraigned in 2001 in a military commission. In that commission, he is charged with war crimes associated with the U.S.S. Cole and other ships. This commission is the primary court exercising jurisdiction over al Nashiri.

The D.C. Circuit Court of Appeals has also exercised jurisdiction, ruling on 30 August 2016 that it would not halt the Guantanamo commission against him. The defense had asked the appeals court stop the commission because the commission was not lawfully able to exercise jurisdiction. The appeals court chose not to decide the merits of the matter unless al Nashiri is convicted, at which time the appeals court would decide whether the commission had conducted a trial without jurisdiction.

The Court of Military Commissions Review (CMCR) issued a ruling in his Military Commission case in June 2016, and one in July.

The U.S. District Court for the Southern District of New York also has had a stake, as al Nashiri was indicted in that district but the case has not moved forward because Congress prohibited moving detainees to the U.S. for trial.

The European Court of Human Rights ruled that the government of Poland breached international human rights law when it permitted the U.S. to detain al Nashiri on Polish soil, where he was tortured. The court ordered Poland to pay al Nashiri over $250,000.

At the pre-trial hearings this week, the issue of jurisdiction will certainly arise.

al Nashiri

al Nashiri

Pre-trial Issues in his case

al Nashiri’s pre-trial hearings have touched on many issues.

Front and center recently have been jurisdictional issues, such as those discussed above handled by the DC Circuit and the CMCR, and also raised in the commissions.

Pre-trial issues have related to his treatment while in CIA black sites beginning in 2002 for 4 years, where the Senate Torture Report and other sources (including al Nashiri himself) have identified the following practices against al Nashiri – waterboarding (admitted by the government), mock executions, stress positions, and threats of sexual violence against his mother. Should a person be tried on criminal charges after being subjected to this treatment? Can any statements made by al Nashiri after such treatment be allowed as evidence in the trial against him?

Other pre-trial issues in his case or that may be raised include:

  • whether the U.S. can use as evidence the testimony of a man the U.S. killed (alleged co-conspirator Fahd al-Quso);
  • whether and to what extent the U.S. Constitution applies to al Nashiri’s military commission;
  • whether the right to a speedy trial was violated (over 13 years since al Nashiri was taken into custody and over 9 years since arriving at Guantanamo Bay — with the trial itself not commencing as of 2016 and no trial date set);
  • whether his right to humane treatment was violated (even regarding his Guantanamo housing situation – during these proceedings);
  • his right to have access to classified and other information that might be used against him at trial;
  • whether high-ranking military members engaged in undue influence;
  • the timely acquisition of defense lawyers’ security clearances; and
  • al Nashiri’s physical and mental health.

Much remains to be resolved before any actual trial is held.

At Camp X-Ray, Guantanamo Bay

At Camp X-Ray, Guantanamo Bay — George Edwards

My four 2016 summer trips to Cuba

This will be my fourth visit to Cuba in as many months, with three visits to Guantanamo Bay and one to Havana.

My first visit to Guantanamo Bay in this cycle was to monitor U.S. Military Commission pre-trial hearings in the case against Hadi al Iraqi, who is alleged to have been a high-ranking al Qaeda Iraq member, and to have liaised between al Qaeda Iraq and the Taliban. Hs is charged with various war crimes.

My Hadi al Iraqi monitoring mission was through the Military Commission Observation Project of the Program in International Human Rights Law of Indiana University McKinney School of Law. Our project seeks to attend, observe, analyze, critique and report on U.S. Military Commissions. We are producing the Guantanamo Bay Fair Trial Manual, which is used and usable by any person interested in assessing whether the rights and interests of all military commission stakeholders are being afforded to them. We are interested in the rights of the defendants. We are also interested in the rights and interests of the prosecution, the victims and their families, the media, the guards and other prison personnel, witnesses, and others.

Edwards on U Boat Crossing Guantanamo Bay - 14 August 2016 - the morning that 15 detainees were released to the UAE, bring the total GTMO population down 20 from 76 to 61

Edwards on U Boat Crossing Guantanamo Bay – 14 August 2016 – the morning that 15 detainees were released to the UAE, bringing the total GTMO detainee population down 20 percent from 76 to 61

On my second trip to Cuba this summer I was part of a delegation from the National Bar Association (NBA), which is the organization principally for African American lawyers, judges, law professors, and other legal professionals. An NBA conference was held jointly with the Cuban bar association, focusing on a wide range of U.S. interests and Cuban interests, and interests affecting both countries. The topic of Guantanamo Bay came up repeatedly in our discussions with Cuban judges, lawyers and law professors. I also gave a lecture at the U.S. Embassy – Havana.

NBA - Ambassador's Residence - law profs and deputy ambassador

NBA law professors at Residence of U.S. Ambassador to Cuba, with Deputy Ambassador

My third trip to Cuba this summer was in August for a Guantanamo media tour. When I arrived on Guantanamo at noon on Saturday, 13 August 2016, 76 detainees were imprisoned there. When I left Guantanamo at noon the next day, Sunday the 14th, only 61 detainees remained. During the darkness of night, 15 detainees were released to the United Arab Emirates (UAE). That resettlement marked a 20% drop in the Guantanamo Bay detention population over night.

NBA - Group of law professors at end

NBA law professors at Cuban lawyers collective.

Writing projects of mine I was researching at Guantanamo on that third trip include The Guantanamo Bay Reader and a contributions to The Indiana Lawyer.

This fourth trip to Cuba is to monitor the al Nashiri hearings pursuant to our Indiana McKinney School of Law observation program.

More about all of the above (and below) is available on http://www.GitmoObserver.com.

Docketing Order – Motions on the schedule to be heard

The Military Judge in the al Nashiri case on 12 August 2016 issues a Revised Docketing order, outlining the proposed program for the 3 days of scheduled hearings this week (7 – 9 September 2016). Here is that order.

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