Author: indypaulatty

J.D., Indiana University McKinney School of Law, 1994 L.L.M. in Transnational Business Practice, University of the Pacific McGeorge School of Law Senior Associate, Employment Law Office of John H. Haskin & Associates, Indianapolis Representative of IU McKinney School of Law's Military Commission Project at the Guantanamo Bay Naval Station, January 28 - February 3, 2018

Government’s “Star Witness” Against Nashwan Al-Tamir Appears in Guantanamo Court

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Ahmed Al-Darbi, in an undated photo by the International Red Cross 

Tuesday, 30 January 2018, in the Guantanamo Bay courtroom, an alleged al Qaeda Iraq member and Taliban liaison encountered the government’s purported “star witness” against him. Defendant Nashwan Al-Tamir has been charged with attacks against allied troops and contractors in 2003 and 2004 in Afghanistan, during the U.S. led invasion, and he was confronted in court by Ahmed Muhammed Haza al Darbi, who testified in August that Al-Tamir was “Hadi al-Iraqi,” Al-Darbi’s Al-Qaeda commander in 1996 whom he saw at a guest house with other Al-Qaeda commanders as late as 2000. In addition to testifying against Al-Tamir, Al-Darbi is also testifying in a case against the alleged U.S.S. Cole bomber, Abd al Rahim al Nashiri, who is alleged to have masterminded the bombing of the U.S.S. Cole off the coast of Yemen. His testimony was in exchange for a guilty plea under which he is set to return to Saudi Arabia this month to serve a sentence of 9-15 years.

Why I am in Guantanamo?

I am a graduate of Indiana University McKinney School of Law, and I am here as a monitor representing the school’s Military Commission Observation Project.  This week I and five other NGO representatives have been monitoring pre-trial proceedings in the government’s case against Al-Tamir.  Al-Darbi’s in court deposition was suspended in August due to Al-Tamir’s health and was set to resume next week.

Star witness against al-Tamir unexpectedly appears in the courtroom

To the the surprise of us NGO representatives observing proceedings this week, Al-Darbi came in to Court Wednesday afternoon with his lawyers for a hearing on Al-Tamir’s motion to compel production of records concerning his psychological condition and treatment.  We did not expect him to appear in court today and we were surprised because his deposition was not set until next week. Not even Miami Herald reporter Carol Rosenberg, the only reporter to regularly attend the hearings, knew that this motion was would be on the Commission’s docket this week. Al Darbi was clean cut and wore a blue suit, having shaved the beard he had worn prior to his guilty plea.  Al Tamir requested production of the records to try to discredit al Darbi’s testimony and deem it unreliable due to trauma he endured as a result of torture inflicted upon him at the U.S. air base in Bagram, Afghanistan and at Guantanamo.

Arguments about al Darbi’s mental condition & mental health records

Al-Tamir’s counsel, Air Force Major Yolanda Miller, argued that al Darbi’s records could show that Al-Darbi was suffering psychological trauma from torture when he testified against Al-Tamir in 2017.  Miller also argued that Al-Darbi had waived any patient-physician privilege when he disclosed records in arguing that he was unable to testify publicly, and that at least the Court should review the records in camera, without disclosing them publicly, before ruling.  The government argued that it had the responsibility to determine discoverability of the records, and that it had determined that al Darbi’s medical records were not relevant.  Al-Darbi’s lawyer, Navy Lieutenant Commander Greg Young, argued that the medical records were privileged, and that Al-Darbi had not previously disclosed any of the records.  The military judge, Marine Colonel Paul Reuben, took the matter under advisement.

Al-Tamir’s motion to abate the proceedings

Earlier Wednesday afternoon, the court had heard arguments on Al-Tamir’s renewed motion to abate the proceedings and his motion to compel the production of intelligence reports.  The proceedings had previously been abated, or suspended, due to Al-Tamir’s degenerative back condition, for which he’s received four surgeries in the past four months.  He had complained of pain since arriving at Guantanamo in 2007, and his previous treatment had largely consisted of ben-gay.  Only last year after Al-Tamir had become incontinent and paralysis became a threat did he receive the surgeries.

Al-Tamir lawyer Adam Thurschwell argued that due to events which occurred just after Tuesday’s hearing, the hearings in the case should be abated, or suspended.  Al-Tamir submitted a letter to the court stating that Joint Task Force (JTF-GTMO), which maintains the detention facilities at Guantanamo, had delayed his ability to relieve himself while dealing with the handcuffs agents had put on him too tightly, it’s seizure of documents his legal team had given him, and failure to deliver a special toilet seat to his holding cell which permitted the him to relieve himself without experiencing pain.  He soiled himself, and there was no running water to his cell.

Thurschwell argued that the hearings had to be abated due to the government’s deliberate indifference to Al-Tamir’s medical needs, making it impossible for him to meaningfully participate in his own defense.  Government lawyer Lieutenant Commander B. Vaughn Spencer presented the testimony of a Staff Judge Advocate (SJA) who disputed Al-Tamir’s version of events.  He testified that the papers had been taken as a part of a routine review process involving any papers provided to detainees, and that he had asked Al-Tamir three times if he needed to use the toilet. Also, the Joint Task Force Guantanamo (JTF-GTMO), which operates the detention camps had, by Wednesday – the next day- provided the special toilet seat to Al-Tamir’s holding pod, and the Base Emergency Engineering Force (BEEF) had been notified of the water issue.

Judge Reuben found that the government had not been deliberately indifferent and denied the Defendant’s motion.  Despite this ruling, Thurschwell continued to interject his concerns for Al-Tamir’s condition as the hearing continued.  Judge Reuben and the government have agreed to conduct shorter hearings with more breaks as an accommodation for Al-Tamir’s disability, which causes him increased pain with prolonged sitting.

Defense motion to compel the government to produce intelligence reports

Judge Reuben also heard argument on the defense’s motion to compel the government to produce intelligence reports regarding its interrogations of Mr. Al-Darbi.  Major Miller explained the interplay between intelligence documents known as HCRs (Human Collection Requirement), SDRs (Source Directed Requirement), and (IIRs) Intelligence Information Reports.  She explained that while the government had provided IIRs which provide information of intelligence value to Department of Defense customers, it had not produced the underlying SDRs, which show specific collection requirements for interrogators examining detainees like Al-Darbi, or HCRs, which would reveal the questions asked by interrogators and whether Al-Darbi refused to answer them.  According to Miller, these documents would provide objective facts, such as lie detector tests, as to whether Al-Darbi was telling the truth, and whether he had been asked about Al-Tamir during the earlier interrogations.  Marine Captain William DePue presented the government’s argument that the SDRs and HCRs were not discoverable or relevant, were cumulative to information contained in IIRs, and that the defense had not met its burden to permit the court to compel the production of those documents.  Again, Judge Reuben took these arguments under advisement.

During the argument on the defense’s motion to compel, the Chief Information Security Officer (CISO), who was seated to the judge’s right, leaned over and had an off the record conversation with the judge.  The CISO has the ability to press a button during the proceedings if he believes that classified information is being discussed, which would cause a light at the judge’s stand to illuminate, monitors to go blank, and the audio feed to the gallery and remote viewing sites, which runs on a 40 second delay, to be cut.  Thereafter, the judge asked each side if proceedings should be closed under Military Rule of Evidence 513.  Both the government and defense replied that there was no cause for closed proceedings.  This classified button was not pressed at any time during the proceedings we witnessed this week.

Wednesday’s hearings begun at 1 p.m., as Al-Tamir had a 10 p.m. MRI on Tuesday night.  While the judge wanted to press ahead on the arguments regarding Al-Darbi’s psychological records, he finally relented to Thurschill’s requests that the hearing end at 5:30 p.m. due to Al-Tamir’s increased pain from prolonged sitting, and the resulting encumbrance upon his ability to participate in his own defense.

Development’s in the case during the rest of the week

We and counsel involved in the case all arrived in court on Thursday morning, expecting arguments on pending motions to resume.  We were told, however, that Al-Tamir had refused to come to court due to the pain he was experiencing, and also did not waive his right to be present for the proceedings against him.

Friday’s hearing was also cancelled.  Later on Friday, we learned that a neurologist had examined Al-Tamir and concluded that emergency surgery was necessary.   Judge Reuben met with counsel for the parties at 10:30 p.m. Friday night in what is known as a 802 conference, for Rule 802 of the of the Rules for Military Commissions, to discuss how to proceed considering these developments.  As a result, the commission will convene in open session on Sunday, February 4 at 9:00 a.m., and the neurologist will be present.  We, the NGO observers at the military commissions this past week, will all look forward to reports from the next set of NGO representatives on this coming week’s developments at the military commission, as we have today (Saturday, February 3) returned to Washington, D.C.  IU McKinney law student Denton Monteith will represent the school’s Military Commission Observers Project this week.

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The Military Commission Administration Building at Guantanamo Bay, Cuba

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2019 IU JD/MBA Candidate Denton Monteith flew into Gitmo on the same United Airlines plane I flew out on Sunday

 

U.S. Military Commission Hearing against Hadi al Iraqi/Nashwan al Tamir

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Our group of NGO Observers at “Camp Justice” on the Guantanamo Naval Station

Yesterday I attended a hearing held in the military commission case against Hadi al-Iraqi, who was referred to by both the military judge, Marine Colonel Paul Reuben, and defense lawyer Adam Thurschwell as Mr. Al Tamir, the name the defendant claims.  I and observers representing five other non-governmental organizations (NGOs) and our Guantanamo escort entered the court complex through a security tent and a walkway lined with chain-link fencing covered with black cloth to provide shade and protection.  There was additional security at the entrance to Courtroom II itself, and we then received our seat assignments in the gallery.  The six of us sat in the second and third rows, and Miami Herald journalist Carol Rosenberg sat in the first row.  There was a retired serviceman observing, as was a woman in an area reserved for victim family members (VFMs).  There is a blue curtain which can be drawn to separate VFMs from other observers, but it was not drawn today.  A uniformed serviceman sat in the middle of the gallery.

The gallery has five large windows looking into the courtroom, each with a television monitor at the top.  The monitors display the person speaking, whether the judge, defense or government counsel, and they and the audio work on a 40 second delay.  We were informed that if classified information is mentioned, a police-type light to the left of the judge would turn on, the monitors and audio would stop, and white noise would begin.  This did not occur while we were at the court today.  Cameras in each corner of the gallery kept watch upon observers, who were warned that decorum would be maintained as if we were seated in the courtroom.  The proceedings were also broadcast by closed circuit television to sites at Fort Meade, Maryland and Fort Devens, Massachusetts.

The Courtroom

Inside the courtroom are six tables for each the defense and prosecution teams.  This was set up to accommodate the six original 9/11 Defendants.  Charges against one of the six has since been dropped.  A chair on the left side of each defense table is equipped with “shackle points” – a chain about a foot long secured to the floor to which Defendants may be shackled.  These shackle points have not been used on Al-Tamir since he became incapacitated, but are still used on other Defendants. About nine individuals were on each side of the aisle, including an interpreter for Al-Tamir, defense and government counsel, and their staff.

Nashwan al-Tamir, now in his 50s, was transported into the courtroom in a wheelchair by servicemen and wore an upper body brace extending to just below his chin to immobilize his neck.  He has undergone four surgeries in the past four months, and hearings set in October and December were postponed.  According to his lawyers, Al-Tamir suffered from degenerative disk disease before he was captured in Turkey in 2006, allegedly trying to reach Iraq on orders of Osama bin Laden.  He spent 170 days in secret CIA custody before being transferred to Guantanamo in 2007 and had for years complained of back pain.  In 2014 he was charged with being a high-ranking member of al Qaeda Iraq and liaison with the Taliban, and is accused of being responsible for deadly attacks in Afghanistan and Pakistan in 2003 and 2004.  If convicted, he faces a life sentence.

Tuesday’s hearing

This week’s hearings are to address defense motions requesting the government provide medical evidence requested in discovery, for a medical expert on Al-Tamir’s competence to participate in his own defense, for an order compelling access to the accused by his counsel, and an order to prohibit his forcible extraction from his quarters.  The arguments Tuesday covered only the first two of these motions.  Defense counsel Thurschwell, a Pentagon paid civilian, argued that Al-Tamir needs accommodation for his disabilities, including a hospital chair for use when consulting with his lawyers at camp 7, where he is held, a special toilet seat which reduces the pain he experiences without it, a bottle to urinate in without exacerbating his pain, and for shorter hearings with more breaks.  Thurschwell argued that Al-Tamir’s pain was exacerbated by his captors’ denial of necessary medical care until last fall, when he had become incontinent and was in danger of paralysis.

The government’s arguments were presented by Lieutenant Commander B. Vaughn Spencer, who recently became a civilian.  Vaughn did not have clear answers as to why Al-Tamir was not provided with the devices he had requested to accommodate his disabilities, or why the current senior medical officer (SMO) who was to testify about Al-Tamir’s condition did not appear.  He expressed confusion as to whether the defense was requesting abatement, or postponement of proceedings, or accommodation so that proceedings could continue, and noted that the government had no objection to Al-Tamir’s requests for accommodation.

Thurschwell pointed out that the Defendant was present and was willing to participate to the extent he could receive accommodations that could prevent him from experiencing debilitating pain.  The defense requested its own medical expert to assess Al-Tamir’s competence to participate in his own defense, considering a deposition to perpetuate the testimony of a government witness is set to take place next week, and for the court to order the Joint Task Force (JTF) in charge of Al-Tamir’s confinement to provide the requested devices. Each side presented arguments as to the applicable legal standards under the Military Commission Act of 2009 and precedent for assessing a defendant’s capacity to participate in his own defense at this pre-trial stage of proceedings, and the defense’s entitlement to an expert.

While Judge Reuben wanted to address several other issues yesterday, he granted the defense requested an end to the hearing due to Al-Tamir’s inability to relieve himself without the requested devices, while taking all other motions under advisement.  As Mr. Tamir was set to undergo an MRI last night at 10 p.m., today’s hearing will not begin until 1 p.m.

 IMG_0063     NGO Representatives at work in the NGO Resource Center

 

Paul Logan, JD ‘94

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law