Winding Up My Mission To Guantanamo Bay, Cuba
My last day at Guantanamo Bay, Cuba was the 18th of April 2014. I woke up early, at 5:30 a.m., to pack and get to breakfast before it was time to leave. We had to catch a ferry by 7 a.m. that would take us to the Guantanamo Bay landing strip for our flight back to Andrews Air Force Base.
An Amazing Experience
My time at GTMO was, very simply, an amazing experience!
First, all of the NGO’s on the trip were great. Although we inevitably had various views about the MC, everyone was very respectful of each other’s opinions. There were productive conversations between the group members and it was beneficial to hear various viewpoints that I had not considered.
Second, Ben Fenwick and Joanna Leichtman, our MC escorts for the weekend, were fabulous! They were both extremely organized, accommodating, and genuinely nice people. They made the trip that much more enjoyable!
Third, the entire GTMO military community was very welcoming. I feel lucky I had the opportunity to meet these extraordinary men and women.
Also, I learned a great deal that will help me in my career as a lawyer. Being in the courtroom is very different from reading about motion hearings in criminal cases.
Finally, the ability to witness the 9/11 MC Hearings was a once in a lifetime experience.
There is no doubt that the Military Commissions are divisive as an issue.
This became especially clear after the news this week that the FBI allegedly questioned a member of the defense team of defendant Ramzi Binalshibh, who is charged with Khalid Shaid Mohammad and others in the 9/11 case. The person who was approached was the defendant’s Defense Security Officer (DSO), who is a civilian who assists the defense team handle classified evidence. The FBI had the DSO sign a non-disclosure agreement. This revelation caused the judge to halt the proceedings because it potentially has created a conflict of interest issue between the defense attorneys and their clients. Until this issue is resolved, nothing else is going to move forward in the 9/11 case.
Arguments For and Against the 9/11 Case Being Tried in a Military Tribunal
I understand that there are arguments on both sides of the aisle as to why this case should or should not be in military court.
The Prosecution wants to try this case in a MC in GTMO because of the potential safety concerns if it was in U.S. Federal Court. Also, I think the Prosecution wants this case in a MC because they do not want the alleged torture of the defendants to be admitted into evidence.
Now, I am not going to pretend to be an expert in the distinction between the Rules of Evidence in Federal Court vs. Military Commissions. However, after reading the rules and talking with various people from the Defense Teams, as well as NGO’s, it seems that in Federal Court the alleged torture information would be more likely to be admitted into evidence.
Finally, right now, GTMO seems to be the only place where the Prosecution can try the defendants.
Bringing the defendants to the U.S. and trying them in Federal Court is not an option under the National Defense Authorization Act for FY2014, which “contains an absolute bar on the transfer of Guantanamo detainees into the United States for any purpose, and also prohibits the building or modifying of facilities in the United State to house such detainees.” See Jennifer K. Elsea and Michael John Garcia, The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters, pg. 42 (2014).
The Defense on the other hand thinks this case should be tried in Federal Court, not a MC. Based off of my conversations with members of the Defense Teams, I think the Defense believes their clients will not receive a fair trial in a MC. Some issues presented in this MC include due process, attorney-client privilege, and conflict of interest concerns.
Also, based on the Governments involvement in this case, there seems to have been an erosion of the professional working relationship between the Prosecution and Defense Teams. For example, various events have been reported that have created a sense of distrust of the Government and Prosecution in this case. Some events include CIA censorship of the proceedings, smoke detectors that were installed with listening devices in the meeting rooms of the defendants and their attorneys, and the disappearance of Defense Team information that was stored on hard drives.
Overall, the latest delay in the case seems to be frustrating for everyone involved with the Military Commissions, especially the family members of the 9/11 victims.
What Happens in Vegas?
As these hearings plod along, it is interesting that the 9/11 case is not getting more national news coverage. The famous saying “what happens in Vegas stays in Vegas” unfortunately seems applicable to GTMO.
By Jeff Meding, Military Commission Observation Project, Indiana University McKinney School of Law