I have been in Guantanamo Bay, Cuba since Sunday, August 13th, 2017 serving as an NGO observer with the Indiana University McKinney School of Law’s Program in International Human Rights Law. The program is approved by the Pentagon to send observers to view proceedings that are a part of the military commission system. Other schools and organizations that have an interest in what goes on in GTMO also send observers. I am here with five other observers from four organizations and one other law school.
Morning Session Deposition – Day 2, Wednesday August 16, 2017
The prosecution called Guantanamo prisoner Ahmed al-Darbi to the witness stand to testify in the military commission case against Hadi al Iraqi, an alleged al Qaeda commander. al-Darbi pleaded guilty in 2014 to charges related to the 2002 attack on a French oil tanker, and as a part of that plea deal agreed to testify when called upon by the prosecution.
An issue of the direct examination on both days was that the prosecutor asked numerous complex and compound questions that appeared to be lost in translation and objectionable.
Unlike the first day of the deposition when Hadi al Iraqi was present, on the second day, he voluntarily waived his appearance and did not attend. al-Darbi looked very much like a business professional dressed in a dark gray suit, light gray tie, white shirt, and nice watch.
The second day of the deposition began with the prosecutor asking al-Darbi about Hadi’s alleged activities at a guesthouse/headquarters building in Kabul, Afghanistan. al-Darbi described about how Hadi would go to the communications room to check on the latest developments from the front and later go to the front himself to check on his fighters. The prosecution elicited from al-Darbi information in an apparent attempt to paint a picture of Hadi as an active al Qaeda commander, the extent to which he commanded the defense will most likely dispute. al-Darbi testified he last saw his former commander Hadi al Iraqi in the year 2000 at the guest house in Kabul.
Struggles in Recounting Torture
The afternoon session began with al-Darbi’s account of being taken in to U.S. custody, first at Bagram Airfield, Afghanistan, and later at Guantanamo Bay, Cuba. During this portion of the testimony, al-Darbi’s body language changed drastically. Instead of leaning towards the microphone when giving sometimes lengthy answers at a normal volume, when speaking of his captivity he leaned back in his chair and gave short answers at a low volume. The only time he gave a long answer during this portion of his testimony was when he stated that remembering the details about the things that happened to him after he was captured was more difficult than the experiences themselves.
al-Darbi appeared visibly to have had a difficult time recounting his treatment at Guantanamo Bay. He testified to having had to endure “stress positions,” sleep deprivation, physical assault (to include pushing, hitting, and having chairs thrown at him), humiliating tasks, and being forced to wear bunny ears and a diaper on his head.
The most difficult line of questioning came when al-Darbi described an incident while at Bagram Airfield in which his interrogator, Army Private First Class Damien Corsetti exposed his private parts and put them in al Darbi’s face. Though by all accounts he lived up to his nicknames as “The Monster” and the “King of Torture,” notorious interrogator Corsetti was acquitted of charges relating to his abuse of detainees.
The strategy of the prosecution in the latter portion of the second day seemed to be to bring out torture on direct examination because there is little doubt the defense will question his ability to recall the over 20 people he previously identified due to the time that has passed as well as the physical toll of the torture. The prosecution also attempted to blunt the impact of it later by asking questions reiterating the free and voluntary nature of his plea deal.
Meeting with Chief Defense Counsel, Brigadier General John Baker
The NGOs had the opportunity on Thursday, August 17, 2017 to meet with the Chief Defense Counsel, Marine Corps Brigadier General John Baker. Earlier in the week we had met with the Chief Prosecutor, Army Brigadier General Mark S. Martins. BG Martins released a statement on August 19th about the hearings that occurred the week of August 14th. That statement can be read here.
BG Martins appears to be very much hands on with the prosecution of each of the military commission cases his office is responsible for prosecuting. He plays a direct role in the direction the cases take both from a staffing standpoint as well as a legal strategy. In addition, because of his background as Rhodes scholar, instructor at the Center for Law and Military Operations, and being widely published in professional journals, his meetings are significantly more polished, though not necessarily better. He speaks much more fluidly and longer winded in a manner that shows he speaks about the military commission system and law in general in the political arena.
BG Baker on the other hand is, as he characterized his role, more of a manager. He views his job as getting the tools each of his defense teams state that they need to do their job. He does not personally represent any of the clients, though he does seem to meet with them on a regular basis. One of the challenges he spoke at length about was the personnel issues that both he and his adversary, BG Martins have to deal with unique to the military. Most military attorneys, or JAG officers, are assigned for 2-3 years. In order for military personnel to advance their careers they cannot stay in place for long periods of time, and because these military commission cases in some instances last for a decade or more, staff continuity in the case is a constant challenge. Ultimately, the client suffers when the staff members are constantly turning over and the careers of the staff members suffer if they stay in their positions for too long.
BG Baker responded to our questions much more candidly and off the cuff. He, unlike BG Martins, gave us explicit permission to attribute things to him, as well as quote him. BG Baker spoke frankly about how he views the military commission system as a “failed experiment” and how he sees no way in which these cases will survive appeal. Though he says he is a firm believer in the general idea of military commissions, he sees “zero benefit” to trying the cases in this iteration of the military commission system.
On Friday of last week, the judge in the Hadi al Iraqi case, Marine Corps Colonel P.S. Rubin issued an order suspending the CCTV feed of the al Darbi deposition to Fort Meade. I asked BG Baker directly if he had received an explanation about why feed was suspended. He offered a theory that the deposition was not a court proceeding and therefore not under the authorization of a protective order issued by the judge, to send the feed to Fort Meade. The issue of whether or not to allow a deposition to be transmitted to Fort Meade has come up before. In the al-Nashiri case, the judge ruled the deposition of al-Darbi was to be completely closed. This meant no NGO observers could be present and the CCTV feed was suspended. In the Hadi case, the judge ruled NGO observers could be present, but still no CCTV feed.
BG Baker recognized the unprecedented nature and importance of the presence of NGOs at Guantanamo Bay hearings. He said to tell the world of about what happened here. That’s a responsibility I felt like each NGO observer has taken seriously in this unique and fascinating week.
Defense Team BBQ
Two members Hadi’s defense team invited all of the NGOs to the temporary house where they were staying for a BBQ. They cooked great burgers and hotdogs, and had a wide variety of beverages. Each NGO observer reported having a number of fascinating conversations with individual members of the defense team, to include the lawyers, intelligence personnel, investigators, and paralegals.
In September 2015, I traveled to Guantanamo Bay to observe a hearing for Hadi’s case in which he fired his military defense counsel. Fast forward to August 2017 and Hadi finally seems to have a solid defense team in place. According to members of this team, he chose Navy Commander Aimee Cooper to lead his defense, though she is not the highest ranking member of the team. The members of the defense team I spoke to report having a really good relationship with their client. This bodes well for his defense and seems to solidify the chance that he will have the rights afforded to him (as outlined in the Guantanamo Bay Fair Trial Manual) protected to the greatest extent possible.
I want to thank each of my fellow NGO observers for an incredible week. Each shared their unique insights and made the experience one I will never forget.
I will continue to follow this case as it moves slowly forward in the hopes that someday justice will be served in a way that does not undermine the values America supposedly stands for.
Tyler J. Smith, J.D., LL.M.
Member, Military Commission Observation Project
Program in International Human Rights Law
Indiana University McKinney School of Law