Author: tylerjacobsmith

Second Day of the al Darbi Deposition in Hadi al Iraqi Guantanamo Bay Military Commission Case

NGO observers working in the NGO Resource Center after a day’s court session.

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

Camp X-Ray, the temporary detention facility at Guantanamo Bay, where the first 20 detainees were brought in January 2002. The camp closed in April 2002 and a court has ordered the preservation the camp to be potentially used as evidence in any future litigation. Though al Darbi arrived to Guantanamo after Camp X-Ray was closed, during his interrogation, he was allegedly threatened with being sent there where bad things would happen to him.

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

Brigadier General John Baker assumed his duties as Chief Defense Counsel in July 2015.

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

Sunset over Camp Justice at Guantanamo Bay, Cuba, August 13, 2017

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.

Concluding Remarks

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

Deposition of Ahmad al-Darbi in the Guantanamo Military Commission case against Hadi al Iraqi

I have been in Guantanamo Bay Cuba since Sunday as an NGO observer as a part of Indiana University McKinney School of Law’s Program on International Human Rights Law to view the hearing session for the Military Commission case against Abd al Hadi al Iraqi (or Nashwan al Tamir).

NGO observers in front of the Camp Justice sign before the first day of the Ahmad al-Darbi deposition.

The court session yesterday (Monday) involved several defense motions. Two were argued in the public setting, in which the NGOs and victim’s family members were allowed to be present. A third motion was not heard at all, and the fourth was heard (along with classified parts of the first) in closed session, in which all members of the public (NGOs, victims, and media) were not allowed to be present for.

Morning Deposition Session – Tuesday, 15 August 2017

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Ahmad al-Darbi in an undated Red Cross photo obtained by the Miami Herald.

The prosecution called Ahmed al-Darbi, a Saudi born admitted jihadist to the stand to be deposed. al-Darbi pleaded guilty and promised to testify against Hadi, but because al-Darbi hopes to be repatriated to his homeland of Saudi Arabia soon, and will not be available to testify against Hadi in person at Hadi’s trial, his deposition testimony today will be preserved to be possibly used against Hadi at his trial. Hadi al Iraqi was present for the first day of testimony. al-Darbi, wearing a gray suit, white dress shirt, and tie, sat calmly speaking with a soft even tone. Unlike in the picture to the right, he was clean-shaven, wore nicer glasses, and had short slightly gray hair.

Hadi al-Iraqi was seated at the left end of the first defense table in the courtroom wearing a white robe, white turban, and black vest. From my vantage point, I did not see if the two men looked at each other before or at any point during the testimony.

Six of us NGO observers were present in the gallery, along with several military servicemembers, family members of some of the victims, news media, and numerous military police. Veteran Guantanamo Bay military commission reporter for the Miami Herald, Carol Rosenberg published a piece a few hours after the conclusion of Tuesday’s session. That article can be viewed here.

The deposition was recorded for possible use by the prosecution at trial of Hadi al-Iraqi. al-Darbi, testifying in Arabic, but seemingly understanding some English through his interactions with the deposition officer, had the assistance of four interpreters that rotated throughout the testimony.

After several hours of foundation and background, al-Darbi identified Hadi as his former commander and stated that he recognized Had al Iraqi from a guesthouse in Afghanistan.

Presiding judge, P.S. Rubin, served as the deposition officer responsible for ruling on any raised objections. Throughout the five-hour deposition session, the defense raised many standard objections to the form of the questions the prosecutor asked and the answer elicited from al-Darbi. The defense objected to the prosecution asking leading questions, speculative answers from al-Darbi, being unclear about the time frame in which he was speaking about, and the non-relevance of large portions of his testimony.

Osama bin Laden, notorious leader of al-Qaeda.

The narrative the prosecution tried to convey, though disjointed and hard to follow at times throughout the entire morning session, painted a picture of al-Darbi as a committed (at least initially) jihadist who had numerous interactions with high-level al-Qaeda and Taliban leaders, to include Osama bin Laden.

al-Darbi testified that as a young man from a troubled non-devout Muslim family, as a teenager he found reassurance, peace, and comfort at mosque. From there he became very much a believer in jihad, the highest rank of worship. He stated that to him jihad meant fighting infidels in self-defense, not giving into desires of soul, defense of home and property, and the defending of honor.

The Bosnian War (1992-1995) claimed the lives of over 62,000 Bosniaks, or Bosnian Muslims.

He testified that following his service in the Saudi army during 1992, with no other job in his hometown, he slowly began to find his calling as a jihadist. By 1994, he would find his first jihad fighting as part of a Bosnian Army unit against Serbian aggression towards his fellow Muslims. As a young jihadist, al-Darbi dreamt about becoming a martyr, and became depressed when he left Bosnia alive.

He stated that following his return from Bosnia, other jihadists recruited al-Darbi to go to
Afghanistan for training. By 1996, he received recommendations to finish his training at al-Qaeda camps, despite previously being unaware of al-Qaeda’s existence, but knew of Osama Bin Laden due to the prominent nature of his family. During this time he first met with Bin Laden. After several more months of training he was invited by al-Qaeda to fight with the Taliban.

Afternoon Session

Up until this point, the deposition focused on al-Darbi’s background and activities, as well as the identification of other fighters he interacted with, but made no mention, to my recollection, of Hadi al Iraqi. Much of the testimony in the afternoon finally began to focus on the nature of his interactions with Hadi.

al-Darbi testified that after he completed his training, he went to Kabul, Afghanistan. It is here at a guesthouse that he first saw Hadi al Iraqi. Despite all the training he had in advanced tactics and weaponry and his interactions with high level members of al-Qaeda, al-Darbi still appeared to be a fairly low level fighter, when he testified that his commander, Hadi al Iraqi, assigned him to be on a three-man tank crew. Al-Darbi saw Hadi on a daily basis during this period. In addition to the commander-subordinate relationship, they ate meals together while at the front lines.

One of the major purposes for the prosecution having al-Darbi even testify was to be able to positively identify the accused, Hadi al Iraqi. With all the background covered, the prosecution finally asked al-Darbi if he recognized the accused sitting at the defense table, to which he answered yes, though he looked older with a grey beard. When asked who he recognized the accused to be, he responded it was apparent to him that the accused is Hadi al Iraqi.

One of the strategies for the defense is to essentially say their client is not Hadi al Iraqi, but instead is Nashwan al-Tamir. During the deposition of al-Darbi, the prosecution specifically asked him if he ever heard Hadi al Iraqi go by any other name, or if he was aware of anybody else who had used that name. al-Darbi answered no to each of those questions and sated that he had never heard Hadi al Iraqi called Nashwan al Tamir.

This line of questioning and the questions dealing with al-Darbi’s interactions with Hadi made up a relatively small portion of the approximately four hours of today’s testimony. The prosecution introduced over 20 exhibits, most of which were photos of people he identified, other than Hadi al Iraqi. The NGOs, myself included, kept waiting for the prosecution to get to the point where al-Darbi would identify Hadi.

Unlike during a normal type of deposition when the deponent (the witness being deposed) is cross-examined immediately after direct examination, the defense will not have the opportunity to cross-examine al-Darbi at least until October. I would be interested to hear how the defense characterizes the name issue, as well as the relatively small number of interactions al-Darbi allegedly had with Hadi.

A transcript of the deposition is not available on the website of the Office of Military Commissions, and by all accounts it does not seem likely that it will be posted.

That concludes the summary of the first day of deposition of al-Darbi. The deposition will likely continue all day tomorrow. The next post will contain a summary of the day’s testimony as well as my overall thoughts on the two days.

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Travel to Guantanamo Bay and First Full Day of Hadi al Iraqi Hearings

NGO observers at Andrews preparing before the flight to Guantanamo Bay.

I traveled to Guantanamo Bay, Cuba to serve as an NGO Observer to view hearings for the military commission case against Abd al Hadi al Iraqi, or Nashwar al Tamir as the defense calls him. I am representing the IU McKinney School of Law’s Program on International Human Rights Law, and am joined by five other observers representing four organizations and one other law school.

The flight down here was on a chartered Miami Airlines plane lasting just over 3 hours. Once we debarked from the plane we got in a van and drove onto a ferry that crosses to the windward side of the bay.

First Day of Court

Welcome sign at the Passenger Terminal on the leeward side of Guantanamo Bay

Last time I came down here in September 2015, Hadi only had military counsel, unlike the other military commission defendants who had both private and military attorneys. At the hearing I viewed, he fired his chief defense attorney to make way for a private attorney. Today, I immediately noted that in addition to several different military counsel, he had a private attorney as well.

In addition to the 6 NGO observers in the courtroom gallery, a number of family members from two servicemen killed in Afghanistan in 2003 were also present.

Just before the start of the session, everyone in the gallery was made known about the approximate forty-second delay from the action in the actual courtroom to the audio and visual feed on the four monitors visible from the gallery. This delay is supposed to prevent those in the gallery from hearing potentially classified information. Practically speaking, the delay makes it almost useless to watch the actual happenings in the courtroom. This is especially prevalent when the hearing comes to a conclusion in the actual courtroom but is still going on the monitors that we can hear and see in the gallery. At the conclusion, everyone stands in the courtroom and we in the gallery are given the “all rise,” but the hearing hasn’t finished yet on the monitors. Despite this, watching and listening exclusively on the monitors causes little issue.

Morning Court Session

Four items were on the docket for the week, in addition to the deposition of al Darbi, a defendant in another military commission who agreed to testify against Hadi and al Nashari.

The session began with the judge giving a brief rundown of the meting (called an 802 conference) that occurred on Sunday evening between the judge, prosecution (trial counsel), and defense. The private attorney then spoke of several issues relating to the defense’s initial objection of the deposition, the camera angles for the deposition to be conducted this week, the defense team not receiving transcripts from al-Darbi’s deposition from a previous case, and the prosecution’s Friday afternoon delivery of thirty-five exhibits the defense claims to have had no knowledge of. Another issue the private counsel addressed was an issue of attorney-client confidentiality between al-Darbi and his counsel.

The page that shows up when one attempts to access a file not currently available for viewing by the public from the Office of Military Commission’s official website.

After those initial concerns and responses by the prosecution, the judge heard arguments on the first motion, Appellate Exhibit (AE) 091. This motion, like many of the most recent filings, is not available to be viewed by the public on the Office of Military Commission’s official website. Therefore, we could only go off what was said about it during the session.

In this motion, the defense requested the court compel the prosecution to allow their client to use a laptop to be able to view the 31,000-33,000 pages of documentary evidence.

The defense argued their client’s ability to access these documents in an electronic format would allow him to have meaningful access to the courts and facilitate effective assistance of counsel. The defense also argued that because of the massive amounts of documents, he has limited ability to store documents in his cell.

One member of the prosecution, Navy Lieutenant Commander David Lincoln, argued that Hadi should not be given a laptop due to security concerns, that he has six defense counsel that can represent him effectively in court without a laptop, and that he does not have the constitutional right to a laptop.

The second motion, AE 70CCC was only partially argued, limited by the potential for classified materials. This motion seeks to compel discovery of unredacted statements of Ahmed al-Darbi, a detainee who has traded his release from Guantanamo in exchange for testimony in several cases.

AE 085 is a motion to dismiss the charges, in which the defense argues that Congress lacks the authority under the Constitution to limit the jurisdiction of the law of war military commissions to non-citizens. This motion was not heard as the defense requested to hold off on having it argued before the commission.

A Shortened Court Session

The two motions discussed above were argued before lunch break. Shortly after finishing arguments for the second motion, the all of the attorneys and judge had a meeting, presumably in his chambers. The judge then dismissed the court for lunch. After the court reconvened for the afternoon session, the judge announced that the court was going to close the hearing to the public. The remaining motion, AE 070FFF and portions of the second motion, AE 070CCC were to be argued in a closed session due to concerns about classified material.

Accordingly, all of the victims and NGOs had to leave the courtroom and were done in court for the day. Our NGO escort informed us afterwards that we would have a chance to talk with the Chief Prosecutor after the conclusion of the closed session.

Chief Prosecutor of Military Commissions, Brigadier General Mark S. Martins was kind enough to pose with me following his briefing with the NGO observers in September 2015.

Meeting with Chief Prosecutor, Brigadier General Martins

The last time I traveled to GTMO in 2015, I had the pleasure of meeting the Chief Prosecutor of Military Commissions, Brigadier General Mark Martins when he sat down with all the NGO observers for a Q&A session. This time, he remembered me at the terminal in Andrews on Sunday and we briefly exchanged pleasantries.

We met him again for a Q&A session after the closed session on Monday. He was as gracious as he was last time. His intellect, legal knowledge, and scholarly demeanor are most impressive. The NGOs asked insightful and tough questions. He answered each with candor showing his firm belief in the rule of law.

I come away with the impression that he is unlikely to say anything other than that his personnel are doing the best job they can do under limiting circumstances. He seems to recognize that there are issues with how the proceedings occur. However, he is the best position to know the effort his staff exerts in trying the cases within the framework of the system they are given.

The military commission system is deeply adversarial. So far we have only heard one side. We are greatly interested in hearing the perspective of the defense counsel when we are given the chance.

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Travel to Andrews/Public Hearing for August Hadi al Iraqi Session?

I’m on my way to Guantanamo Bay Cuba as a member of the Program on International Human Rights Law at the IU McKinney School of Law. This will be the second time I’ve traveled to view a session of hearings for the Hadi al Iraqi military commission case. This week is scheduled to address several issues, including the deposition of Ahmed al-Darbi, a detainee who has traded his release from Guantanamo in exchange for testimony in several cases.

First Attempt – Arrived One Day Early For My Flight

Andrews-Passenger-Terminal-e1455778259356

An empty Passenger (PAX) Terminal at Andrews.

After a very rainy drive to D.C. on Friday, I picked up copies of the Guantanamo Bay Fair Trial Manual: Excerpts and the Know Before You Go guide to give to my fellow NGO observers. These materials have been developed by the Program on International Human Rights Law at the IU McKinney School of Law, and serve as valuable resources to NGO observers.

Saturday morning, I arrived at Andrews Joint Air Base and was able, unlike initially last time, to gain entry on to the base. When I arrived to the terminal, I was slightly alarmed to only find the only two people in the entire terminal to be two Airmen cleaning the floor. They were quickly able to inform me my flight was to leave the next day, Sunday.

The email I received stated the flight would be the 13 (Sat), giving the correct date but wrong day. Misinterpretation and misinformation is a fairly common occurrence in my experience working for and with federal, state, and local governmental entities. No harm, no foul this time though. It was a good dry run. I know exactly how to get to the Passenger Terminal (PAX Terminal) and have the day to brush up on the available case documents and potential issues.

Public hearing?

Ahmad al Darbi, set to be deposed this week in the Hadi case, pled guilty in 2014 to the 2002 attack on a French oil tanker. He has yet to be sentenced.

On Friday, the military judge issued an order that effectively will deny public access to the deposition of al Darbi this week.

Ordinarily, the military commission proceedings are available for viewing via a secure feed at Fort Meade, Maryland. However, that may not be the case this week. I will confirm this tomorrow at the terminal.

If this is true, then the five of us NGOs will bear the responsibility alone to report on the deposition. We are the “eyes and ears of the outside world as to what happens at Guantanamo Bay.” This responsibility will greatly be enhanced if others cannot view the proceedings at Ft. Meade.

In 2012, the defense counsel for the U.S. v. Al-Nashari case summited a motion to request that the proceedings be available to media outlets in addition to the CCTV locations. In response to the motion, the government cited U.S. v. Moussaoui, a case in which the Court found that an audio-visual feed and online publishing of the transcripts “fully satisfy the constitutional requirements for openness and accessibility.”

The courtroom in the Expeditionary Legal Complex at Guantanamo Bay, looking from the gallery. (Photo credit: CBS News).

The suspension of a live feed of a deposition is different than not allowing live cameras in a military proceeding at issue in Moussaoui, but the suspension of the audio-visual feed seems to implicate a potential conflict with the constitutional requirements for openness and accessibility.

More research would need to be done to determine the legal impact of the feed suspension and I look forward to investigating further, should it turn out to be the case.

Second attempt – The Correct Day of My Flight

After my self-imposed delay, I successfully arrived at the Passenger (PAX) Terminal Sunday morning and met my fellow NGO observers. Five total NGO observers representing five different organizations are set to travel to GTMO. Those organizations include the New York City Bar Association, Georgetown University Law Center, National District Attorneys Association, and Judicial Watch. Each observer seems eager to get there and get to work.

The next blog post I make will be from Guantanamo Bay Cuba.

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Return trip to Guantanamo Bay- August Hearing for Abd al Hadi al Iraqi

I am a 2015 J.D. graduate of the Indiana University Robert H. McKinney School of Law and a 2017 LL.M. graduate of Notre Dame Law School.

This Pentagon approved sketch by court artist Janet Hamlin shows Hadi al Iraqi (aka Nashwan al-Tamir) during his arraignment in June 2014.

The upcoming hearing scheduled for Abd al Hadi al Iraqi (aka Nashwan al-Tamir) marks the third time I have been selected to travel to Guantanamo Bay, Cuba to view military commission hearings.

After one cancellation in March 2015, I was fortunate enough to have traveled to GTMO in September 2015. It was a short, but fascinating experience. I am grateful for the opportunity to potentially make the trip again. My previous blog posts can be found here.

The hearings I am scheduled to observe so far are still set for August 14-18.

Where the Case Stands

Detained in GTMO since 2007 and accused of war crimes related to his alleged conduct as an alleged al-Qaida commander, the U.S. charged Hadi al Iraqi in 2014. During my first trip to GTMO, he fired his lead military appointed defense counsel in an effort to retain a private attorney.

As of October 2016, the case also has a new military judge. Marine Corps Colonel P.S.

The current presiding judge Marine Corps Colonel P.S. Rubin

Rubin succeeded Navy Captain J.K. Waits without explanation.

August Hearing Session

According to the Docketing Order, dated July 21, 2017, the upcoming hearing session should consist of argument and the presentation of evidence related to four defense motions. The order can be found here.

Two of the motions deal with compelling discovery of statements made by a defendant in another military commission case, Ahmed Mohammed Ahmed Haza al-Darbi. Another motion is seeking to dismiss the charges against their client because the defense claims Congress lacks the Constitutional power to limit the jurisdiction of military commissions to non-citizens. In the fourth motion, the defense seeks the commission’s permission to allow the defendant to use a personal computer.

The last time I traveled to GTMO, I made a preliminary blog post going off of the docketing order as well, but all of that went out the window when everyone received word that Hadi wanted to fire his counsel. Therefore, if all of these issues are actually heard, then it will be a fair amount of progress.

Preliminary Thoughts

Logo of Joint Task Force-GTMO. This group of military personnel is responsible for the care and custody of the detainees.

I am driving to Joint Andrews Air Base tomorrow. I am looking forward to again experiencing the incredibly bureaucratic process of traveling to GTMO. Viewing the hearing last time had a significant impact on how I view certain institutions, such as the military and the justice system, that are built on notions of patriotism. I also may be able to see some of my fellow Indiana National Guardsmen who arrived in GTMO last summer, if they are still there.

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Guantanamo defendant Hadi al Iraqi Fires His Legal Counsel

Tyler Smith, standing in front of the sign at Camp Justice, the site of military commissions held in Guantanamo Bay, Cuba

Tyler Smith, in front of Camp Justice, the site of Guantanamo Bay, Cuba U.S. Military Commissions

I traveled to Guantanamo Bay, Cuba for hearings in the Military Commission case against alleged al Qaeda member Hadi al Iraqi.

The hearing, which had been postponed by one day, was set to begin at 10 a.m. today, Tuesday the 22^nd of September 2015. Finally, at 10:45, the military judge commenced the hearing.

It did not really surprise anyone that the first thing that occurred was that Hadi al Iraqi “released” his military defense counsel, essentially firing US Marine Corps Lieutenant Colonel Thomas Jasper and Air Force Major Ben Stirk, who had been representing Hadi al Iraqi. Hadi expressed his desire to have a civilian attorney represent him.

The military judge ruled that the military defense counsel would be released, and would be replaced by other military defense counsel, probably Army Major Robert Kincaid. The Chief Defense Counsel, Marine Corps Brigadier General John Baker, had already tapped Major Kincaid for this role, but was still undergoing clearance review and briefings, and could not meet with Hadi until those processes had been completed. The military judge said that in the meantime, LTC Jasper and MAJ Stirk would still act as a “mouthpiece” for Hadi in communications with the military commissions.

Carol Rosenberg, of the Miami Herald, published this article regarding today’s proceedings indicating the paralysis of the commission’s lone non-capital case.

This Pentagon approved sketch by court artist Janet Hamlin shows Hadi al Iraqi during his arraignment in June 2014. Second from the left is Hadi’s now former counsel, Air Force Major Ben Stirk.

As was explained on our tour of the Expeditionary Legal Complex (ELC), there was a 40 second delay during the hearing with what was happening in the actual courtroom to the audio video feed we saw on five TV screens from the gallery. What is said in the courtroom must be vetted through an intelligence officer to help ensure nothing classified is leaked and has to be translated. The delay can cause some confusion as to what is happening in the courtroom in real time and the delayed audio. For example, at the conclusion of the hearing, everyone in the courtroom and in the gallery were given the “all rise” order in real time, while the audio from the previous 40 seconds of hearings was still going. Other than that, the delay didn’t really cause much of an issue during this hearing. Most of the observers simply watched the screen in front of them instead of watching the happenings in the courtroom through the glass.

Candid Meeting with Hadi’s Former Defense Counsel LTC Jasper

Hadi al Iraqi’s former defense counsel, US Marine Corps Lieutenant Colonel Thomas Jasper.

One of the highlights of this mission was the post-hearing meeting with Hadi’s newly-former defense counsel, LTC Jasper. He talked to us for a solid hour about his experience as Hadi’s counsel, his feelings on being fired, and his opinions about the military commission system. LTC Jasper represented Hadi for about a year, and he said that over that period of time built a good personal relationship with him. All indications are that it will take time for MAJ Kincaid to come up to speed on the case and build a rapport with Hadi. LTC Jasper explained that even though Hadi didn’t tell him why exactly he was firing his attorneys, LTC Jasper attributed it, in part, to the distrust Hadi has with the military commission system and that Hadi’s fellow detainees (his “brothers”) all have civilian counsel. In my opinion, it is a miracle that LTC Jasper was able to build any kind of rapport with Hadi given the logistical issues of meeting with his client, and the fact that LTC Jasper was a Marine Corps officer that served in Iraq and Afghanistan around the same time Hadi allegedly commanded elements of al-Qaeda.

As now former defense counsel, LTC Jasper was very candid with us when talking about his views of the military commission system. Based on what I have read and observed about the military commission system I was not surprised when I heard LTC Jasper’s observations and opinions he gained from his experience in working within the military commission system. I was very impressed to hear a Marine Corps Lieutenant Colonel, with as much experience as he has be so candid and down to earth. LTC Jasper expressed disappointment, though I can’t quote him as saying so, perhaps a bit of relief as well. He indicated he has already accepted a non-litigation job at the Pentagon.

Post Hearing Activities

Following the hearing, our Office of Military Commission (OMC) escorts drove us to the various areas of interest on the base.

One of the many beautiful beaches at Guantanamo Bay, Cuba

Though Guantanamo Bay is synonymous with the infamous detention facilities, it is a naval base of 45 square miles (Camp Atterbury, Indiana is approx. 54 square miles, the US’s largest military base, Fort Bragg, North Carolina is approx. 254 square miles) with the typical military base accommodations. It has a military grocery/department store (Navy Exchange, or NEX for short), souvenir shop, radio station (which we toured), very large recreation and gym facilities, housing, schools, and restaurants (yes, there is a McDonald’s and a Jamaican run Irish-pub).

Not typical of military bases, at least the ones I have been on were the beautiful beaches, lighthouse, and large reptiles. Also the Internet is incredibly poor. Odd considering that Internet is often the only lifeline military members deployed have to their loved ones back home.

A special area of interest we stopped at but could not tour, was Camp X-ray, the infamous temporary detention camp that received its first prisoners in January 2002.

By: Tyler Smith, 3L, Indiana University Robert H. McKinney School of Law

Finally headed to GTMO for Hadi al Iraqi Hearings

A Delta Airlines Airbus A319 (file photo). Definitely a much more comfortable way to fly than by military plane.

After a 24-hour delay, and some slight troubles getting on Joint Andrews Base, I got checked in for my flight out to the Naval Station at Guantanamo Bay, Cuba (GTMO) to observe hearings for alleged al-Qaeda commander, Abd al Hadi al Iraqi.

Our group of NGO observers consisted of 8 attorneys and law students from different schools, and 1 non-attorney. We originally had 11 observers but lost 1 due to security clearances issues and 1 due to illness. While waiting, some of the observers had positive things to say about the Guantanamo Fair Trial Manual.

JAB to GTMO

I was fully expecting to fly on a military cargo/passenger plane.

Odd droplet shaped formations dot the ocean near the Cuban island.

However, we ended up flying on a chartered Delta Airlines Airbus A319. The flight contained us NGOs and our escorts, the Judge and his staff, the prosecution, a few press members, and Office of Military Commission staff, among others. The flight lasted about 3 hours. It was uneventful, other than seeing weird spots in the ocean. One of observers with a background in oceanography later explained the odd drop shapes in the ocean were algae formed in part by an el Niño weather pattern.

After landing at GTMO we got into a van and drove on to a ferry to make the 30-minute trip from the windward side of the island. It was a very beautiful ride.

Ferries shuttle people across from the airport on the leeward side to the windward side of Guantanamo Bay.

Our NGO escorts got us settled into our temporary work and living quarters at Camp Justice, the location for the military commissions sitting on a former airfield. The NGO lounge is where various NGOs keep their materials, and is a meeting place for observers to discuss the day’s events. It is located in a room inside a dilapidated airplane hanger/tower building. The NGOs, press, and other personnel staying at GTMO for brief periods stay in the tents. The tents are kept super cold (probably around 55-60 degrees) to keep the local wildlife out. I luckily was given enough of a heads up to bring a sleeping bag, a sweatshirt, long johns, and a winter hat.

One of the many tents of Camp Justice. This particular tents is one of two Male NGO tents. Shower and bathroom facilities are housed in different tents.

One of the many tents of Camp Justice. This particular tent is one of two Male NGO tents. Shower and bathroom facilities are housed in different tents.

Tour of the Expeditionary Legal Complex

The NGO’s and two members of the media were given a tour of the Expeditionary Legal Complex (“ELC”) that was built to try the five 9/11 defendants. It’s a 12-million dollar facility located on Camp Justice, with a courtroom that contains state of the art transportable equipment. Aside from the courtroom, the facility also contains meeting trailers for the prosecution and defense, a Quick Reaction Force room in case something happens, holding cells with arrows on the floor pointing to Mecca, CCTV feeds, and a full body scanner that avoids the need for strip searches.

Tomorrow’s Hearings

Preparations have begun for tomorrow’s hearings. The prosecution, defense, and judge met in a private session to presumably discuss the issues to be talked about tomorrow on the record. NGOs reviewed the Guantanamo Bay Fair Trial Manual, and I feel prepared for my mission. I look forward to seeing what happens.

By: Tyler Smith, 3L, Indiana University Robert. H. McKinney School of Law

Guantanamo Bay Flight from Andrews delayed – 24 Hours during Pope’s Visit

The USO in the passenger terminal provided much needed fresh coffee

I checked in early this morning at the Joint Base Andrews (a.k.a. Andrews Air Force Base) Passenger Terminal for my flight to Guantanamo Bay Naval Station, Cuba (GTMO) to monitor hearings in the war crimes case against Hadi al Iraqi.

A gentleman announced that for reasons beyond their control, our mission to Guantanamo Bay has been pushed back 24 hours. The 2-hour delay on my flight yesterday from Indianapolis suddenly seemed insignificant.

I heard through the grapevine that the GTMO airfield was jammed with aircraft from an air show, and that this information was notconveyed to the Military Commissions in a timely manner. Also, it is no secret that Pope Francis is in Cuba, and as I mentioned before,there are rumors that he will travel to Guantanamo Bay before he flies to the U.S. later this week.

A fellow observer reads up on the Guantanamo Fair Trial Manual I brought with me, while two others find a place to stay for the night

All the observers were granted TDY (Temporary Duty) orders, which provides us with funds to cover meals and a hotel for the night.

While we waited for a briefing from Brigadier General Mark Martins this morning, observers were able to introduce ourselves to each other, and tell a little bit about what we do and what school or organization we are representing. We have what looks like an interesting mix of observers from around the U.S.

Briefing by Chief Prosecutor Brig. Gen. Martins

Shortly after the delay was announced, our two military commission escorts announced that Brigadier General Mark Martins, who is the U.S. Military Commissions Chief Prosecutor, would conduct his briefing at Andrews instead of waiting until we arrived in GTMO.

Brig. Gen. Martins spent over an hour with the group updating us on the Hadi al Iraqi hearings, and on the other two major pending cases – the case against al Nashari and the case against the 9/11 defendants. A prosecution staff member provided us with copies of his remarks and a DVD containing all the documents available as of yesterday that are also available on the Military Commission website.

Brig. Gen. Martins indicated that he expects to get everything done despite the compressed Hadi al Iraqi schedule. The two issues discussed in the previous blog post will be litigated once the commission has inquired as to whether al Iraqi has restored his current defense counsel to full representational capacity.

Brigadier General Mark Martins was kind enough to pose with me for a photo following his briefing with the observers

The observers asked great questions the answers to which revealed General Martins’ intellect and philosophy on the military commission process. He talked at length about the “narrow and necessary jurisdiction” within our justice and counterterrorism institutions. My intuition tells me that not everyone agrees with the fairly rosy picture of the legal robustness of the commission process that he alluded to.

Despite that, Brig. Gen. Martins was quite welcoming to the observers, indicating that transparency is crucial and that we play a role in holding the commissions accountable. Several times during the hour Brig. Gen. Martins mentioned the intense adversarial nature of the commissions process. Interestingly enough, we never even met or were introduced to any of the defense team by our escorts. I am assuming we will meet them at some point tomorrow.

Revised Hadi Hearing Schedule

The hearings in the Hadi case will presumably begin on Tuesday the 22^nd, rather than on Monday the 21^st. Already, this week’s hearings were reduced from a full week to 3 days. Now, there may only be two days of hearings before we return from Guantanamo on Wednesday evening.

Each “Memorial Unit” is a cantilevered bench with a lighted reflection pool, and is inscribed with the name of a victim. The Memorial Units are also positioned to distinguish those victims who were in the Pentagon and those who were aboard American Airlines Flight 77.

National 9/11 Pentagon Memorial

After the briefing by Brig. Gen. Martins, the observers went their separate ways for the evening. I decided after lunch in D.C. to head to the National 9/11 Pentagon Memorial that captures the name, location, and age of each of the 184 victims. Abd al Hadi al Iraqi is not a defendant in the 9/11 case, but a visit to the memorial seemed appropriate given the reason I am in D.C.

By: Tyler Smith, J.D. Candidate, 3L, Indiana University McKinney School of Law

Eve of Departure to GTMO

After a 2 hour delay leaving Indianapolis due to inclement weather and a pilot swap, I made it to Washington D.C shortly before noon. I am currently in a hotel across from the main entrance to Andrews Air Force Base. As tomorrow’s flight is a military one, I expect to hurry up and wait. So I anticipate having some time to meet my fellow observers tomorrow morning.

September Hearings at Guantanamo Bay for Hadi al Iraqi

Ernesto Miranda, 1967, the defendant in the landmark U.S. Supreme Court case that bears his name

Ernesto Miranda, the defendant in the landmark U.S. Supreme Court case that bears his name (1967)

The hearings I am scheduled to observe at Guantanamo Bay for Hadi al Iraqi have been shortened from one week to only 3 days, September 21-23. Only two (but important) issues are set for the commission:

1. Defense Motion to Suppress, AE 045

On June 9, 2015, the defense team filed a motion to suppress statements al Iraqi made while in custody to federal law enforcement agents between May 2007 and May 2009. The Uniform Code of Military Justice (“UCMJ”) requires Miranda like warnings to be issued prior to questioning. The Military Commission Act specifically exempts the Military Commissions from following this UCMJ requirement. The 35-page defense motion can be found here.

The defense first argues the Fifth Amendment and Miranda require the suppression of statements made by al Iraqi because he was in CIA custody and was not read Miranda warnings before interrogation. The defense addresses an argument they expect the prosecution to make, in that the admissibility of the statements hinges whether Miranda applies, but whether the the Fifth Amendment applies.

Second, the defense argues whether or not the Fifth Amendment applies, Miranda warnings are required since the Military Commission Act (MCA) requires the exclusion of statements obtained by torture or cruel, inhuman, or degrading treatment. That MCA provision can be found here. The defense motion has a dearth of quotes from a number of judicial decisions that have discussed the right against self-incrimination.

2. Intent to Disclose Classified Information

The commission will hear argument and receive evidence on the Notice to the Defense of the Government’s Intent to Disclose Classified Information Pursuant to M.C.R.E 505(h)(2). The documents pertaining to the issue listed on the Military Commission are not yet available for download.

Interesting Side Note

President Obama and Pope Francis, 2014

Pope Francis is scheduled to visit Cuba before he travels to Washington D.C next week. Rumor has it he will be in Guantanamo Bay on September 22. Pope Francis, the first pope from Latin America, played a key role in restoring relations between the United States and Cuba. It will be interesting to see if does indeed stop by GTMO and to learn what his interests there may be.

I am expected to be joined on this monitoring mission to Guantanamo Bay by 11 Observers from a range of institutions around the U.S. We have been communicating with each other via e-mail, introducing ourselves, requesting and receiving tips on travel to Andrews Air Force Base for our early morning flight to Cuba on Sunday, and organizing logistical matters. I am looking forward to meeting all of my colleagues in just a few days.

By: Tyler Smith, 3L, Indiana University Robert H. McKinney School of Law

Preparations for Guantanamo Bay, Cuba on Hadi al Iraqi Case

Tyler Smith near Tel Aviv, Israel in June 2015, while participating in a study abroad program

On Friday, August 28, 2015, the Pentagon confirmed a slot for me to travel to Guantanamo Bay, Cuba to monitor hearings in the U.S. Military Commission case against Hadi al Iraqi. The hearings are scheduled for September 21-25.

I was previously scheduled to attend hearings in March 2015. But those hearings were cancelled a few days prior to departure.

Pre-trial Hearings for Abd al Hadi al Iraqi

Abd al Hadi al Iraqi is an alleged high-ranking member of al Qaeda who has been held in Gitmo since 2007. Ten days of hearings were scheduled to take place in July 2015 to cover a variety of issues.

Abd al Hadi al Iraqi, alleged high ranking al Qaeda member

The night before those hearings were to begin, the defense raised the issue of a possible conflict of interest involving a member defense team. As a result, the hearings were pushed back two days. When the hearings finally began, they lasted just three hours. The court recessed to resolve another conflict with the defense. The court ruled that the hearings would be continued until September.

Information about the July hearing can be found here.

My role

The Military Commission Observation Project (“MCOP”) was founded by Professor George Edwards of the Indiana University McKinney School of Law after the Pentagon granted Military Commission Observer status to the Program in International Human Rights Law that Professor Edwards also founded. MCOP participants can include Indiana University McKinney School of Law “Affiliates”, which includes students, faculty, staff and graduates of the law school. Some IU McKinney Affiliates who have participated are listed on this website. Persons interested in registering for possible travel to Guantanamo Bay or Ft. Meade can find more information and the registration form here.

The MCOP sends monitors to Guantanamo Bay, Cuba to monitor hearings live, and to Ft. Meade, Maryland to monitor Guantanamo trials through secure videolink direct from the Guantanamo Bay courtroom. MCOP monitors attend, observer, analyze, critique and report on Guantanamo Bay proceedings. We are seeking to assess whether the rights of the different stakeholders are being met, and to report on whether or not they are being met or not. Obviously the detainees’ rights are front and center. However, defendants are not the only stakeholders we are concerned with. Other stakeholders include the prosecution, victims and their families, witnesses, observers / monitors, and the press.

I am not certain why I was chosen to travel to Guantanamo Bay through my Indiana law school’s MCOP, but it could have been in part because of my military background. Having served eleven years in the Indiana Army National Guard, I can perhaps offer some insight as to the rights and interests of the military members who are responsible for GTMO’s detainee operations.

Indiana National Guard at Guantanamo

Members of the Indiana Army National Guard’s 38th Infantry Division (nicknamed the “Cyclone Division”) have previously supported the mission performed by Joint Task Force Guantanamo (“JTF-GTMO”). Members of the historic “Cyclone” division are currently scheduled for a rotation in Guantanamo Bay in the coming months.

American WWII poster created to advise servicemen and civilians to avoid careless talk regarding information that could be used by the enemy

I do not know the details as to when exactly they are leaving, how long they will be there, how many are going, or what their exact mission will be. That information is generally not publicized in order to protect the Soldiers and their loved ones.

It is vital for military members to maintain Operational Security (“OPSEC”) at all times; a concept sometimes difficult for some military members to grasp in the age of social media.

Conclusion

I appreciate the opportunity to be a part of this project. I am looking forward to sharing my experiences and contributing to the Guantanamo Bay Fair Trial Manual section pertaining to the rights and interests of JTF-GTMO personnel.

By: Tyler Smith, 3L, Indiana University McKinney School of Law

Thoughts on My 23-27 March Mission to Guantanamo Bay

Abd al Hadi al-Iraqi

During the last full week of March 2015, I will travel to Guantanamo Bay (GTMO), Cuba as a member of the Military Commission Observation Project (MCOP) at the Indiana University Robert H. McKinney School of Law. It’s an honor to have been selected. I will observe military commission proceedings for Abd al Hadi-al Iraqi, who arrived from CIA custody to GTMO in 2007.

In 2013, the United States government charged him with denying quarter, attacking protected property, using treachery or perfidy, and attempted use of treachery or perfidy in a series of attacks in Afghanistan and Pakistan between about 2003 and 2004, and conspiracy to commit law of war offenses.

General Preparation for the Project and my Guantanamo Bay travel

Whirlwind is a term I have seen associated with the process of becoming a fair trial observer as a part of the Military Commission Observation Project (MCOP). I didn’t really have any previously determined thoughts on GTMO that were fully fleshed out by thorough law school level research. Prior to conducting research, I think my level of knowledge was comparable to that of the average American. Though, maybe slightly than more than average, given that I have known several members of the military who served there.

Nevertheless, I have begun the process of researching and learning as much as possible about the project itself, the circumstances surrounding the operation of GTMO and military commissions, and the specific case I will observe. Absent a background in international law, the Guantanamo Fair Trial Manual has been a great resource in becoming familiar with the various sources of law that are implicated in the military commission system.

In addition, I’ve had to explore my thoughts and feelings about what the overarching principles of justice really mean as applied to GTMO. As is with any person, my life experiences have shaped my perspectives on the ethical components of domestic and global issues.

My Indiana McKinney Law School Career

Despite my penchant for world travel, becoming a member of MCOP is admittedly my first law school experience dealing with any area of international law. During my second year of law school I worked as a part-time law clerk for the Marion County Public Defender Agency. Following that, I volunteered with the Neighborhood Christian Legal Clinic’s Expungement Help Desk, where I informed members of the community about Indiana’s expungement law. In July 2014, I began working full-time for the Indiana Bureau of Motor Vehicles, and next month I will begin as a part-time law clerk for the Indiana State Personnel Department. This semester I have been fortunate enough to extern for Justice Steven H. David of the Indiana Supreme Court. From July 2007 to August 2008, Justice David (at the time Colonel David) was the Chief Defense Counsel for the Military Commissions at Guantanamo Bay.

My Military Service

As a member of the Army National Guard for over 10 years, I deployed once in 2011 to Kosovo as a part of Kosovo Force (KFOR) 14. KFOR has been a part of the larger multinational presence in Kosovo since 1999.

In addition, I have personally participated in the military funeral honors ceremonies for 323 veterans, a handful of which have been Iraq and Afghanistan war casualties. In no way does this fuel personal anger or hatred towards the detainees held in GTMO. Those servicemen were honored for their sacrifices for democracy that implores fairness in the service of justice. On the contrary, it is all the more reason for me to ensure I am doing everything within my power to help the MCOP fulfill its missions (attend, observe, analyze, critique, and report).

As stated in the Guantanamo Bay Fair Trial Manual, “NGO Observers are the eyes and ears of the outside world as to what happens at Guantanamo Bay. NGO Observers have a unique responsibility to share their experiences, insights and conclusions with the outside world. NGOs should not bow to pressure. What happens at Guantanamo Bay should not stay at Guantanamo Bay.”

As a part of that mission, I have been tasked with expanding the portion of the Guantanamo Fair Trial Manual covering the rights and interests of the men and women in Joint Task Force Guantanamo (JFT-GTMO).