drove from Indianapolis, Indiana to Andrews Air Force Base (Joint Base Andrews)
to catch a military flight to Guantanamo Bay, Cuba to monitor U.S. Military
Commission hearings in the case against 5 alleged masterminds of the 9/11
attack on the World Trade Center and Pentagon.
am well aware of my responsibilities, but I am also excited to witness history,
in a process that I learned about as a Master of Laws (LL.M.) student at
Indiana Univesity McKinney School of Law, and that I know people in my home
country of Brazil, where I have been a state court judge since 2005.
am representing the Indiana McKinney Program in International Human Rights Law,
that under the direction of founding director George Edwards, sends students,
faculty, staff, graduates to Guantanamo. My mission is to attend, observe, be
seen, analyze, critique and report on proceedings.
this blog post, I will talk briefly about my trip from Indianapolis to DC, and
share a little about my experiences at Andrews this morning.
The week before my departure to Guantanamo Bay
Today, Sunday, 21 July 2019, is the day my flight is scheduled to depart for Guantanamo. I’ll tell you about that shortly. But first, I’ll tell you about the week leading up to today.
last week has been very busy.
before I left Indiana, I received a bunch of e-mails related to my mission.
Some of those emails came from the Pentagon’s Office of Military Commissions and
contained final instructions related to the mission, and documents containing helpful
information about the trip. The Pentagon also sent various documents that I
needed to print copies of to carry on the trip.
also received e-mails from one of the 5 defense teams in this case, containing
a motion hearing summary for the week.
Furthermore, I received multiple messages from Professor Edwards related to the mission, including reminders to forward all Pentagon messages to him upon receipt, to complete and turn in a checklist designed to help ensure that nothing falls through the cracks in the final days, and to have in place plans to communicate from Guantanamo.
Professor Edwards is the principal author of two Guantanamo documents that Indiana observers carry to Guantanamo and distribute to observers from other programs.
was instructed to stop by the Law School before my trip to pick up these
documents to carry to the other observers. I was scheduled to leave Indiana on 13
July 2019, several days before the 21 July 2019, since I was going to drive
from Indiana to DC and spend time in DC with before my Guantanamo plane left.
stopped by the Law School and picked up 8 copies of each of the two Manuals,
since there would be a total of 8 observers on this trip. I began to drive to
Washington with my family.
I left Indiana, I received an e-mail message from Ms. LaTasha Tripplett, who is
the Faculty Assistant who works with Professor Edwards on our Military
Commission Observation Project.
Tripplett informed me that the printer had misprinted the Guantanamo Bay
Fair Trial Excerpts Manual. She told me that the printer was reprinting
them, and that she would send 8 copies to me before the plane left. I gave her
the address of my hotel in Washington, DC, and she was able to send them. They
arrived on time, and I got them as soon as I checked into the hotel? It is
mandatory that we check our e-mails regularly. That is a good rule, and in
place for good reason!
for that, Ms. Tripplett!
mentioned, I decided to drive to D.C with my family, so we all could enjoy some
time in the capital of the United States before I depart for Guantanamo Bay,
and so they can enjoy the city while I am in Guantanamo.
arrived in D.C Friday night, 19 July 2019, so we had plenty of time to visit
some points of interest, such as the Washington Monument, World War II
Memorial, and the Lincoln Memorial.
Our visit was taxing, since the weather was scorching. There is an Excessive Heat Warning for Washington D.C, with the temperatures around 100 ºFahrenheit (almost 38 ºC), feeling like 110 ºF (around 44 º C). We did not spend too much time outside in the heat. We had to come back to the controlled temperature in the hotel.
The day of the trip This morning I had to get to the Joint Base Andrews, Maryland, at 6 am to begin my observation mission in Guantanamo Bay. It was a 25 minutes Uber drive from the Grand Hyatt Washington, which cost me US$ 23. To avoid delays, I left the hotel around 5am, then I got to the Joint Base at 5:25am.
I got there, I went to the Andrews Visitor Center.
I texted Cathy Nardo, the escort for all the other observers, and I found five more observers. We joined the other two observers at the terminal. Each of the 8 of us is from a different “NGO” – non-governmental organization. Our Indiana program founded by Professor Edwards is considered an NGO.
Ms. Nardo picked us up at the Visitor Center right after 6:00am, and we drove onto the main part of the Andrews Base, just a few hundred yards / meters from the Visitor Center. We then drove about 10 minutes us to reach the Andrews Air terminal. This is the Air Base where Air Force I is, the plane flown on by the President of the United States.
At the terminal we immediately checked in for our flight and gathered in children’s nursery located in the terminal, where the observers could get to know each other and wait for further instructions. While there, I met Terry Rockefeller, of the Peaceful Tomorrows, whose members are family of the victims of the 9/11 attacks. She has been to Guantanamo Bay 8 times before and will have a lot to teach me during this week. Cathy took some observers for coffee and, after that the observers were briefed by the escort later about the last-minute information regarding our travel. I distributed the Indiana manuals there and the fellow observers immediately started reading them, finding them very helpful for the mission to come.
I have mixed emotions while I wait to get on the plane. They range from the thrill to be an eyewitness of a historic event to the most basic feeling that I haven’t completed all the steps I should take to start the mission.
flight is scheduled to depart Andrews at 10:20am, which means that I will have
enough time to write my first impressions of my mission. The plane today is a
charter plane of the company Miami Air. We
are scheduled to arrive at at Guantanamo Bay at 1:30pm.
Soon I will share some information from Guantanamo Bay.
PS: Sorry for the delay. Due it the busy schedule, I could only post one day later.
I am a Master of Laws (LL.M.) student at Indiana University McKinney School of Law in the International Human Rights Law track, and I have been selected to travel to Guantanamo Bay, Cuba, to monitor U.S. Military Commission hearings against five alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon. I am part of the Law School’s Military Commission Observation Project (or the Gitmo Observer), founded by Professor George Edwards.
I became a judge in Brazil in 2005, working in civil and criminal courts. In this capacity, I deal with the most diverse areas of law, including human rights and prisoners’ rights. Those subjects prompted me to come to the United States to join the International Human Rights LLM Program in IU McKinney, where I am studying these areas.
How I became interested in the Guantanamo Project
At the McKinney Law School, I came across the Guantanamo Bay Project of the Program in International Human Rights Law (PIRHL) following the advice of Judge Aline Fagundes, a law student at IU McKinney and a Brazilian judge who went to Guantanamo Bay through this project in 2016 and 2017. Judge Fagundes attended the cases against the alleged masterminds of the 9/11 attacks on the World Trade Center and the 2000 suicide bombing of the U.S.S. Cole off the coast of Yemen. Furthermore, she traveled to Ft. Meade, Maryland to monitor hearings that were broadcast live from Guantanamo into a secure room at the Maryland base. And, she traveled to the Pentagon where she observed a different type of Guantanamo proceeding – a Periodic Review Board (PRB), which are not criminal proceedings, but administrative proceedings in which Guantanamo detainees ask the U.S. government to release them.
Judge Fagundes published about her experiences in
several media, such as in the GITMO
Observer website, and in a Brazilian newspaper, Zero Hora (you
can read the article in Portuguese here).
Judge Fagundes recently gave a lecture in the School of Labor Judges in Porto
Alegre, Brazil, about her Guantanamo Bay experiences.
Judge Fagundes in front of the plane to took her to Guantanamo
on her first visit there
Judge Fagundes, in a recent lecture about her
experience, in Porto Alegre, Brazil.
The 9/11 hearings – my travel
I was cleared by the Pentagon to travel to Guantanamo
to monitor hearings that are scheduled for 21-27 July 2019, in which Khalid
Shaikh Mohammad, Walid Muhammad Salih Mubarek Bin ‘Attash, Ali Abdul Aziz Ali,
Ramzi Bin al Shibh, and Mustafa Ahmed Adam al Hawsawi are charged as being masterminds
/ facilitators of the 9/11 attacks on the World Trade Center and the Pentagon.
Ramzi Bin al Shibh was captured in 2002, while the
other four defendants in 2003. All of them were held in secret CIA prisons
(“black sites”) before they were transferred to Guantanamo, between 2006 and
2007. Khalid Shaikh Mohammad and his co-defendants are charged with conspiracy,
attacking civilians, attacking civilian objects, murder, destruction of
property, hijacking, and terrorism.
My responsibilities as a Monitor / Observer
As a Monitor / Observer traveling to Guantanamo Bay, I
have great responsibilities.
First, as an observer, my role is to attend, observe, be seen, analyze, critique, and report my observations, “helping to ensure transparency, the rule of law, and /helping to ensure that the promises of international human rights law protections are fulfilled.”* (you can read at Guantanamo Bay Fair Trial Manual). I pledge to be independent and objective in my observation / monitoring, and to endeavor to have and keep an open mind, with limited preconceived ideas about what I will experience at Guantanamo Bay.
Second, as a Brazilian judge, I feel obligated to share
information I learn with the legal community in Brazil and Latin America, who
may benefit from learning about the Military Commissions.
Finally, as a member of Indiana McKinney Military
Commission Observation Project, I have a great responsibility with all other fellow
observers, current and to come, helping them to get the most out of their
missions, sharing relevant information about my experiences with them, so that
the goals of our Project might be realized.
Notwithstanding the responsibilities, it is important
to notice that Professor George Edwards, as the director of the PIHRL, excels in
his role of leader of the project. He takes care to provide the observers with
all the information they need to succeed in their mission. That is why I am
feeling comfortable and confident in my role as an observer.
How I am preparing for my mission to Guantanamo
While I wait for the travel to Guantanamo Bay, I have
been using information from several sources to prepare for my task.
I also have been reading all the blogs and the
manuals, articles related to Guantanamo in the Foreign Affairs Magazine, The
New York Times, and websites, particularly the Office of
Military Commissions, where I can find information about
the hearings and documents related to the cases. I have paid attention to the Twitter
Feed of journalist Carol Rosenberg,
of the New York
Times, and paid attention to articles she published when she worked for the
I am looking forward to playing my role as an observer
and to sharing my thoughts with the U.S. and international communities about
the work of the Military Commissions in Guantanamo Bay.
Pereira, International Human Rights LL.M. Candidate,
While I was a student at Indiana University Robert H. McKinney School of Law, earning my Doctor of Jurisprudence (J.D.) with a Graduate Certificate in Human and Civil Rights (2017), I learned about our school’s program related to the U.S. Military Commissions at Guantanamo Bay, Cuba. Students, faculty, staff and graduates are permitted to travel to Guantanamo Bay, Cuba to monitor military commission hearings, against alleged war criminals, while sitting in the viewing gallery live in the courtroom. We could also travel to Ft. Meade, Maryland, to monitor the hearings via CCTV.
I am now scheduled to travel to Guantanamo Bay, for hearings in the case against five alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon.
The Pentagon granted a number of Non Governmental Organizations permission to send “NGO Observers” to monitor the hearings, trials and other U.S. Military Commission proceedings held at Guantanamo Bay, Cuba. Professor George Edwards, of the Indiana McKinney law school, founded its Program in International Human Rights Law, to which the Pentagon granted NGO Observer status.
Professor Edwards then created the Military Commission Observation Project (MCOP) to implement NGO Observer responsibilities. As a selected NGO observer, my mission is to: (1) attend; (2) observe / monitor; (3) be seen; (4) analyze; (5) critique; and (6) report on the proceedings.
My first Guantanamo observation was in the spring of 2018, when I traveled to Ft. Meade to monitor hearings in the Guantanamo case against Hadi al Iraqi / Nashwan al Tamir case, who is an alleged high level al Qaeda Iraq member who liaised with the Taliban.
I have been cleared by the Pentagon for travel to Guantanamo Bay, Cuba to monitor the military commission hearings in the case against Khalid Shaikh Mohammed and four other alleged masterminds of the 9/11 attacks.
NGO Observers help ensure not only transparency, but also that the rule of law is respected and maintained. NGO Observers play a critical role as the eyes and ears of the outside world into Guantanamo Bay.
It is important to consider the rights and interests of all stakeholders, not just the rights and interests of the accused/detainees, which may immediately come to mind. But what about the rights and interest of the prosecution? The victims and their families? The press? I believe our visibility and willingness to be seen during these proceedings holds everyone to a higher standard because our physical presence represents an extension of the public.
I am scheduled to arrive in Guantanamo Bay on Saturday, 15 June 2019 and leave on Saturday, 22 June 2019. I am anxious to see if my schedule will play out as anticipated. Participation as an NGO Observer requires significant patience and flexibility as you prepare to monitor proceedings due to the schedule changes, and sometimes cancelations.
Reflections before GITMO
As I get closer to the dates for traveling to Guantanamo Bay, I am feeling a range of emotions. I am excited, anxious, and a bit nervous. As my mission is approaching, I have had a strange feeling in the pit of my stomach daily as it becomes a reality that I will soon be within eye view of men charged with masterminding the 9/11 attacks. I feel this eerie feeling lingering in the atmosphere. Even if one does not recognize any of the names of the alleged masterminds behind the 9/11 attacks, you are familiar with the tragedy that occurred on September 11, 2001. It’s been a bit surreal to know I’ll have the opportunity to observe these historical proceedings in person.
I was in the 5th grade at Sunnyside Elementary the tragic day of the 9/11 attacks. Even reflecting on that day from the perspective of a young child, the day still feels so surreal to me. Over the last few days, on my way home from work, I have taken time to stop by my elementary school to revisit the history of what that painful day felt like for me as a child. It’s been really important for me to soak up those emotions and memories again before traveling to Guantanamo. That day will always be etched in the hearts and minds of so many Americans and discussed for generations to come.
Photo of Sunnyside Elementary in Indianapolis, Indiana on Tuesday, June 11, 2019.
I know as NGO observers we are being provided an extraordinary opportunity and I do not take that lightly. Although most people are aware domestically and internationally about the 9/11 attacks, few people have an understanding about the hearings, trials and other U.S. Military Commission proceedings held at Guantanamo Bay, Cuba. As observers we are provided an extraordinary opportunity and I consider it our duty to share as much as possible about our experiences at GITMO.
It is an honor to have been nominated to serve as an NGO Observer, and I look forward to fulfilling my NGO responsibilities.
Nicole M. Burts, J.D., Indiana University McKinney School of Law
Observer, Guantanamo Bay, Cuba, Military Commission Observation Project
Several months ago, from January 6th-15th, I had the opportunity to observe the U.S. Military Commission proceedings against alleged Al-Qaeda war criminal, Abdul Hadi Al-Iraqi, in Guantanamo Bay, Cuba.
I became aware of this opportunity during the fall 2018 semester while I was enrolled in Professor Edwards’s course, International Law. Professor Edwards is the director of Indiana University McKinney School of Law’s Program in International Human Rights Law. This program has a Military Commission Observation Project that sends students, graduates, faculty and staff to Guantanamo Bay to serve as independent, objective monitors of criminal proceedings.
Abdul Al-Hadi Al-Iraqi
Since April 27, 2007 Abdul Hadi Al-Iraqi has been in custody at Guantanamo Bay, Cuba. According to information provided by the Pentagon, most notably, Hadi Al-Iraqi was a key paramilitary commander in Afghanistan during the late 1990s, subsequently spear-headed attacks against US and coalition troops from 2002-2004, and touted as one of Osama bin Laden’s top global deputies.
That being said, the week or so of trials I was present to observe solely focused on the defendant’s current medical condition and the accommodations that were necessary for his cell and for his court room appearances. Since being held at Guantanamo Bay, Abdul Hadi Al-Iraqi has undergone 5 major back surgeries and suffers from chronic pain associated with the injuries.
I found myself a bit startled when I first saw Abdul Hadi Al-Iraqi enter the court room for the first time. It’s not everyday you see an alleged war criminal, or a member of Al-Qaeda in-person. Nonetheless, I was surprised at his seemingly relaxed demeanor. I had expected a much more serious atmosphere in the courtroom and in the surrounding area based on the barbed wire and extensive security screening process. However, at times Abdul Hadi Al-Iraqi could be seen smiling, laughing, and making small talk with his defense counsel and their staff.
Another interesting aspect of the Military Commissions was seeing JAG lawyers from different branches working together. The defense included Navy JAG, the Judge was Marine JAG, and there was Army JAG and US Department of Defense attorneys working for the prosecution team. The proceedings were painstakingly crisp, meticulous, and efficient. One thing was very clear: they were not going to compromise the quality and correctness of the proceedings in the name of saving time. For example, at one point in the hearings, to accommodate the defendant, the Judge created a protocol that called for a break every 30 minutes to give the defendant a chance to rest if he so wished.
Overall, it appeared as if the US government would be willing to accommodate whatever request the defense team asked just so long as they could progress through the trial and afford the defendant the opportunity to be present during his trial, given his deteriorating medical condition. In following this rigorously high standard for the proceedings, the US government was aiming to reduce the possibility that the defendant would have any grounds for appealing a conviction.
Defense Team Barbecue
On one of our last nights in Guantanamo Bay, the defense team invited us (NGOs) over for a cook-out. Not only were the burgers and dogs far better than anything we had eaten that week, it was an awesome experience to get an insight into the work that goes into preparing a defense for an alleged war criminal.
During the cookout I had the chance to chat with one of the staff members who discussed the difficulty of staying up-to-date with what information the defense team can and cannot use in their legal briefings. The staff member somewhat complained of the immense amount of evidence or information that cannot be used for national security reasons. By nature, being a case against an alleged war criminal, it involves a large amount of information that is deemed by the US government as too sensitive to be used in court because it would pose a risk to our nation’s security.
Anther highlight of the night was having the chance to speak with the lead litigator for the defense team. He was a Navy JAG Officer and a recent graduate of Harvard Law School. During our conversation he highlighted the difficulty of questioning an unwilling/non-cooperative witness and the high-level of responsibility given to first tour JAGs.
Eye Opening Experience
This opportunity certainly expanded my world view and understanding of the capabilities of the United States military. Guantanamo Bay is home to at least a sliver of every branch in the US Military umbrella and seeing them operate in unison was incredible.
Also, the US relationship with Cuba is something that I feel few Americans truly understand. During my time at Guantanamo Bay we were given a tour of the border fence that marks the separation between US soil and Cuba. This tour was given by Marine soldiers and included the history between the two nations and the current relationship.
Personally, my biggest takeaway from this experience was having the opportunity to observe great legal professions practicing the law. Whether it was questioning witnesses, cross-examination, or arguments, all of the professionals involved did a great job at preserving the quality of the hearings.
Indiana University McKinney School of Law Spring 2019 Graduate
During the week of 31 March to 3 April 2019 I traveled to Guantanamo Bay, Cuba to monitor U.S. Military Commission pre-sentencing proceedings against convicted war criminal Majid Khan.
This was my fourth trip to Guantanamo Bay representing the Program in International Human Rights Law of Indiana University McKinney School of Law. Indiana has a Military Commission Observation Project which sends law students, graduates, faculty and staff to Guantanamo to serve as independent, objective monitors of criminal proceedings. I have also monitored Guantanamo proceedings at Ft. Meade, Maryland, where cameras in the Guantanamo courtroom broadcast by secure CCTV.
In his guilty plea, Mr. Khan stated that after 9/11 he traveled from Maryland, where he had been living as a U.S. permanent resident, to Pakistan and agreed to participate in an al-Qaeda plot using suicide vests to assassinate the former President of Pakistan, Pervez Musharraf. He said that he later moved $50,000 USD to finance the 2003 J.W. Marriott bombing in Indonesia, an attack that killed 11 people. He pleaded guilty in 2012 to conspiracy, murder in violation of the law of war, attempted murder in violation of the law of war, providing material support for terrorism, and spying. The Military Commission Convening Authority agreed to allow him to withdraw his guilty plea to the charge of providing material support for terrorism after a D.C. circuit court ruled in another case that the charge could not be appropriately tried at a military commission.
Non-governmental observers from left to right (New York Bar, Yale Law, Indiana University, Columbia University, American University, and Pacific Coast Bar) pictured in Camp Justice, Guantanamo Bay, Cuba.
A Different Dynamic for the Khan pre-sentencing hearings
During the three other proceedings I attended at Guantanamo, when the defendants entered the courtroom through a side door, they each had two soldiers, one on each side, and these soldiers sometimes held the arms of the defendants, as they walked into the courtroom. I was thrown off when Majid Khan entered the courtroom in Guantanamo Bay. Though guards were present, they followed from a greater distance than was the case with the other detainees I observed. Mr. Khan was also not dressed in the same way as the other detainees I have seen, he wore a black suit, that looked similar to the suits that his civilian defense counsel wore. He carried a blueish purple leak colored metallic looking water bottle.
It was hard to tell but when he came in it appeared that he opened the door himself to enter from the left side of the courtroom, of course United States serviceman provided security. He briefly turned to the back of the room and pointed towards the observation box, which sits behind triple pane sound resistant two-way glass. As he pointed, he spoke to his lawyer and it appeared he was asking who we were. We all sat calmly and did not make any motion, as communicating through the glass is forbidden.
Khan was represented by a team of attorneys who were seated to his right, on the left side of the courtroom. It surprised me how respectful Majid Khan appeared to be of the proceedings, to the judge, and of the process in general. When he spoke to Judge Watkins he addressed him as sir. This dynamic is quite different from the other hearings I have attended for those charged in connection with the events of 11 September 2001, and Hadi al Iraqi, an alleged al Qaeda Iraq member. On some occassions detainees have even worn military style fatigues into the courtroom.
Observers sit under the lean-to overlooking the marina in Guantanamo Bay.
Majid Khan—The Only High Value Cooperator in Guantanamo, Bay
Why is the dynamic different at the Khan hearings? I can guess that it may be because Khan is a cooperator. He is the only cooperator in Guantanamo Bay who is considered a high value detainee, and his lawyers brought this up at the beginning of the hearings and frequently throughout.
An iguana sits on Glass Beach and looks on while observers cool off in the Caribbean Sea.
In his plea agreement of seven years ago, Khan agreed to serve no more than 25 years in exchange for his cooperation, 19 if the convening authority finds that Khan provides full and truthful cooperation amounting to substantial assistance. His time served began at the time of the plea agreement, which means he theoretically has 12-18 years left to serve, assuming that the agreement holds. There were concerns about this. The source of these concerns had to do with the government/prosecution being upset about the defense’s request for “Brady material”, material that the defense has argued might be used in the pre-sentencing hearing to mitigate the sentence he is awarded by the panel, as the military commission jury is called.
Exculpatory Evidence and Brady, Could it all Fall Apart?
There is a famous case in United States law referred to as Brady, or Brady v Maryland, which is a 1963 United States Supreme Court case that held, “ Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” This issue of Brady material dominated the hearing. Specifically, Khan and his defense team requested Brady material that might be used as a mitigating factor during Khan’s upcoming sentencing hearing. The hearing will take place before a panel (jury), that will decide Mr. Khan’s sentence, 19-25 years – in accordance with the sentencing agreement.
The public does not know what the material is that the defense has requested, or how and why the defense may believe that this material might be used to mitigate his sentence. However, it likely has to do with the time Khan was in custody prior to arriving in Guantanamo Bay, and possibly the use of enhanced interrogation techniques. This could potentially be used to mitigate his sentence because if Khan was treated badly while in custody then under the Uniform Code of Military Justice, and possibly in the Military Commissions, this in and of itself could be used as a factor to mitigate sentencing. In other words, if someone is tortured, then a sentencing panel could decide, based on that fact, that the defendant should receive a lesser sentence. There is also an important balance between discovery and production of evidence on one hand and the protecting the national security interests of the United States on the other hand. Not to mention that a decision in this case could have further reaching implications, for instance in the 9/11 proceedings where mitigation specialists might seek to use Brady material to get the jury/panel to give a life sentence rather than the death penalty.
Meeting with Khan’s Lawyers
After the hearing I met with Khan’s lawyers and others on his defense team. We gathered at their living quarters and shared snacks and refreshments. At this meeting I noted they were in a unique position relative to the other defense teams I have seen in Guantanamo Bay, and I talked about the different dynamic discussed earlier in this article. A lawyer I traveled with brought up a good point that the government/prosecution appeared to threaten pulling out of the seven year old plea agreement if Khan’s team continues to request Brady material, and noted that this should not be sufficient grounds to pull out of the plea agreement because the only permissible reason for the government/prosecution to unilaterally withdraw should be for material breech.
Suggestion to Improve the Viewing Experience at the Expeditionary Legal Complex
I have a suggestion to improve the viewing experience for the victims’ family members, non-governmental observers, press, and others viewing the proceedings. These groups watch from a remote viewing facility at Ft. Meade Maryland, and in person at Guantanamo Bay. The problem is that we cannot see the detainee(s) faces. The feed shows only one camera angle from the courtroom at a given time, usually of the person who is speaking.
In person viewing in Guantanamo Bay is helpful because observers and victim family members watch the defendant(s) in person throughout the entire proceeding from the observation box at the rear of the courtroom, while observers at other locations only see the defendants when defendants are portrayed on the feed, so generally only when the defendants are the ones who are speaking in court. Keep in mind that this is all on a 40 second delay. My suggestion is that at least one screen at each remote viewing station in the United States, and at Guantanamo Bay, show a camera angle of the detainee(s) at all times, preferably an angle that shows the face. Keep in mind that, as it stands today, the visual feed only shows a small portion of the courtroom in Guantanamo Bay at any given time, alternating between camera views.
I am a second-year student at Indiana University McKinney School of Law pursuing a certificate in human rights law. I am traveling to Guantanamo Bay, Cuba, to monitor the hearings of Mr. Khalid Shaik Mohammad and 4 other alleged masterminds of the 9/11 attacks. My job will be to attend, observe, be observed, analyze, critique and report on these hearings. I am representing the Military Commission Observation Project, which is part of the Program in International Human Rights Law of our Indiana McKinney School of Law. Professor George Edwards founded the human rights program and the Guantanamo project.
Travel to Andrews Air Force Base to fly to Guantanamo
I flew to Washington DC yesterday (Friday, 26 April 2019) because our flight to Guantanamo Bay is scheduled to depart from Andrews Air Force Base (Joint Base Andrews), which is located just outside of DC, in Maryland. I stayed at a hotel right across from the base, and took a local taxi from the hotel onto the base, all the way to the Andrew’s Air Passenger Terminal. My grandfather was in the Air Force for many years, so I had been on military bases before (mainly Minot AFB in North Dakota.) While no two bases are the same, I found Andrews similar to other Air Force Bases. When I am on base, I feel the need to be on my best behavior, as everything feels very official.
I arrived at Andrews around 5:30 and checked in for the flight, that was scheduled to depart at 10:00 a.m. The check in process was similar to that at a commercial airport.
Office of Military Commissions NGO Observer Escorts
I immediately met Cathy Nardo, who would be the
non-governmental organization (NGO) observer escort for the week the week of
hearings, scheduled for 29 to 3 April. Our Indiana program is one of a handful
of NGOs that are permitted to send observers / monitors to Guantanamo.
Each time NGOs travel to Guantanamo, they are accompanied by an escort provided by the Office of Military Commissions (OMC). The escort organizes logistics for us at Andrews, on the ground at Guantanamo, and on the flight back to Andrews at the end of the week. At Guantanamo, the escort drives us to where we need to go on the base and helps us acquire the professional and personal items we need on base. The escort also keeps us informed on the schedules of the hearings, and anything else that happens around base, as well as attend the hearings with us.
Other NGOs arrive
As 6:00 approached, other NGO observers started arriving. There are six NGO observers on this particular trip. They include, in addition to me, a law student from the University of Toledo, and representatives from the ABA, the September 9/11 Families for Peaceful Tomorrows, the Pacific Council on International Policy, and the National Institute for Military Justice. I each of the observers a copy of Know Before You Go to Guantanamo and Guantanamo Bay Fair Trial Manual: Excerpts, which are Manuals authors by Professor Edwards with the assistance of other Indiana observers. The other observers were very interested in the material contained in the Manualsand were thankful to have been provided them.
Briefing from our Escort
Once the NGOs arrived Cathy took us to the children’s play
room of the terminal. and gave us a briefing. She began by giving us the
schedule for the day. NGOs would be the first to get on and last to get off the
plane. She explained that when the plane arrived at Guantanamo, we would take a
ferry from the Leeward side of the Guantanamo base to the Winward side where she
would take us to the tents where we would live for the week, and then take us
to pick up badges we would need to gain access to the courtroom. She briefed us
on the areas where photography is and is not allowed and explained the protocol
for the Expeditionary Legal Complex (ELC), which is where the courtroom is
where the hearings occur.
Boarding the Plane
The NGOS did not have to wait much longer to go through security, which felt much more relaxed than going through TSA at a commercial airport. We then waited a short time longer before getting on a bus which took us onto the tarmac, up to the movable stairs that led to the plane. We got off the bus, walked a short distance across the tarmac, and climbed the stairs to board the plane. This was all a new experience for me. I have never been on a tarmac or used stairs to board a plane. It is very different from at the jet bridges used on commercial flights.
As I prepare to depart Andrews, I am feeling many emotions. I am nervous, excited, happy, and a little scared. But I am very much looking forward to the hearings.
I am a second-year student at Indiana University McKinney
School of Law pursuing a certificate in human rights law.
I became interested in Guantanamo Bay during my undergraduate years. I did a large amount of research on the practice of extraordinary rendition and torture of suspected terrorists. This inevitably led me to researching the Guantanamo Bay detention center. I am interested in the balance between human rights and national security I believe this opportunity will give me a first-hand look at how the United States approaches these issues.
I will be traveling to Guantanamo Bay from 27April – through 4 May, 2019 to monitor the U.S. Military Commission hearings of Khalid Shaik Mohammad and 4 other alleged masterminds of the 9/11 attacks. My job will be to attend, observe, be observed, analyze, critique and report on these hearings. I am representing the Military Commission Observation Project, which is part of the Program in International Human Rights Law of our Indiana McKinney School of Law. Professor George Edwards founded the human rights program and the Guantanamo project.
Charges Against the Defendants
Mr. Mohammad was captured in 2003 and was held in CIA prisons (“black sites”) before he was transferred to Guantanamo Bay in 2007. Charges against him and his four co-defendants include attacking civilians, hijacking an aircraft, intentionally causing serious bodily injury, and murder in violation of the law of war, and terrorism.
In preparing for my mission I have been researching the case I will monitor. I have also read Know Before You Go to Guantanamo which has helped me know what to expect at the base, along with the Guantanamo Bay Fair Trial Manual: Excerpts. Both the Manuals are produced by Indiana’s Military Commissions Observation Project and are available for download on http://www.GitmoObserver.com. I have spoken with previous observers who have been to GTMO so I can better know what to expect. I have also been exploring the website for the Office of Military Commissions to keep up to date on what has been occurring with the hearings.
A few weeks ago I traveled to Ft. Meade, Maryland to attend
a U.S. Military Commission pre-sentencing hearing in the case against Mr. Majid
Khan. The hearing was broadcast by CCTV into a secure room at the Ft. Meade
Mr. Khan pleaded guilty to murder in violation of the law of war, attempted murder in violation of law or war, and spying. He has since been cooperative in giving information to military prosecutors regarding other Guantanamo detainees.
Organizations (NGOs) who travel to Guantanamo Bay, Cuba, to monitor U.S.
Military Commission hearings now have a military challenge coin!
The coin reflects the
NGO mission, which focuses on transparency at Guantanamo war crimes
The Pentagon permits a limited number of NGO representatives to travel to Guantanamo to monitor proceedings. NGOs are the eyes and ears to the outside world on what happens at Guantanamo, consistent with the right to a public trial for all categories of Guantanamo stakeholders. Stakeholders include defendants, prosecution, victims and victims’ families (VFMs), guards, witnesses, media, and others – all who have rights and interests.
Other Guantanamo groups
have challenge coins, including the defense, prosecution, the Office of
Military Commissions, the Commissions Liaison Group, and different Guantanamo camps
and other sub-groups of deployed personnel.
All the Guantanamo
coins honor aspects of the military and civilian personnel involved with
Guantanamo, and their contributions.
A brief history of the challenge coin
A challenge coin is a
coin or medallion typically created by an organization to demonstrate membership
or participation, to honor service, or for commemorative purposes. Challenge coins are steeped in military and public
service tradition, and are often exchanged or distributed during visits, given
as an award, exchanged between friends as gifts, or exchanged as collector’s
About the NGO Guantanamo coin
The new NGO Guantanamo
coin is round, is bronze with white background, and is 3 inches in diameter,
much larger than a silver dollar.
On one side, the coin
reads “U.S. Military Commissions” (top) and “Guantanamo Bay, Cuba”
(bottom). This side contains a U.S. flag
in red, white, and blue, Lady Justice in bronze, and a map of Cuba with a red
star placed on Guantanamo Bay.
Lady Justice holds the
Scales of Justice in one hand and a sword in the other. A blindfold over her
eyes represents that justice should be applied impartially.
The opposite side of
the coin lists the 6-part mission of Guantanamo NGOs – to attend, monitor, be
seen, analyze, critique, and report on the Guantanamo hearings.
Most aspects of the
mission statement are obvious – transparency as fundamental to the right to a
fair trial obviously requires monitors (or observers) to be present and to
observe, and to analyze what they observe, and critique (positive / negative)
The reasoning behind
the “be seen” portion of the NGO mission may not be so obvious, but it is very
important. The Military Commission Act, the U.S. Constitution, international
law, and regulations and rules related to the Guantanamo proceedings all call
for a public trial. The defendants sitting in the courtroom should be able to
turn around and look into the observation galley and see a slice of the public.
The defense lawyers and prosecution should be able to see a slice of the
public, and the judges and jury and victims and anyone else should be able to
see the NGOs, who represent the public. The presence of the NGOs, and their visibility
– their ability to be seen – goes to the issue of not having secret trials (with
secret trials being prohibited under U.S. and international law).
The visibility of NGOs
might give comfort to some trial participants who might feel heartened that if
there are any improprieties, NGOs might bring such improprieties to the
attention of the outside world. The visibility of some NGOs might cause other
actors to be extra diligent in doing their jobs, fearing that NGOs will report
The background on this
side is also white, with a design of the Scales of Justice in the middle. The edge surrounding the coin reads, “At
Guantanamo Bay justice must not only be done, but must be seen to be done”
(top), and “Non-Governmental Organizations” (bottom).
Availability of the Guantanamo Bay NGO Coin
A limited number of Guantanamo Bay NGOI coins
were produced, and are available for $15. If you are interested in acquiring a
coin, please contact The Gitmo Observer at firstname.lastname@example.org or email@example.com. Coins can be shipped to you.
End Note: This NGO Challenge Coin was designed by the Military Commission Observation Project of Indiana University McKinney School of Law, directed by Professor George Edwards, with input by and consultations with numerous individuals, including many involved with other Guantanamo NGOs and other Guantanamo stakeholder groups. No coalition or union of Guantanamo NGOs exists, and there was no vote among NGOs as to the design or production of the coin. Thus the coin is not an “official” coin of the NGOs, but one that any NGO or NGO representative might use if they wish, particularly if they believe that the coin reflects their mission.
was recently confirmed by the Pentagon to serve as a non-governmental
organization (NGO) Observer for the Indiana University Robert H. McKinney
School of Law Program in International Human Rights Law (PIRHL) Military
Commission Observation Project (MCOP). As of now, I will be traveling to
Guantanamo Bay, Cuba 23 March 2019 through 30 March 2019 to observe motions
hearings related to Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarek Bin
‘Attash, Ali Abdul Aziz Ali, Ramzi Bin al Shibh, and Mustafa Ahmed Adam al
Hawsawi, perhaps more commonly known as the “9/11 Hearings.” In short, these
defendants are charged with masterminding the 9/11 attacks on the Pentagon and
World Trade Center.
The Mission I am a second-year student at McKinney and am looking forward to the opportunity to take part in such significant legal proceedings. As an observer, my role is to attend, observe, be observed, analyze, critique, and report my observations. To be best prepared to serve in this role, I have been reading blog posts from previous Observers, as well as other materials available, including the Know Before You Before You Go To Guantanamo Bay Guide and the Guantanamo Bay Fair Trial Manual. Additionally, I have spent time speaking with those who have traveled to Guantanamo Bay previously, either through this program or in other capacities. I have also received some information from the Pentagon, and the IUPUI Study Abroad Office provided helpful links to resources on the internet. Overall, there is a great amount of knowledge and information available, which enables Observers, like me, to be well prepared to head to Guantanamo Bay.
My Motivations My motivation for applying to the program comes from a variety of sources. I have always had the intention of pursuing a legal career in the military as a member of the Judge Advocate General (JAG) Corps, so the having the opportunity to observe legal proceedings in a military environment was intriguing to me. I was also recently selected to serve as an Army JAG intern this summer, assigned to Fort Carson, CO. Being able to bring my experiences as an Observer to my internship will be invaluable.
From a different perspective, I was motivated to apply after
taking the Counterterrorism Law course offered at McKinney. We discussed the
Guantanamo Bay proceedings at length, and at the end I felt I had more
questions than answers. I am looking forward to having the opportunity to
observe the hearings in actual practice, rather than only reading about them in
a textbook. Having the opportunity to then share my observations with others
and assist with the documentation of the proceedings, through the work the MCOP
does and through the Gitmo Observer, ensures the proceedings at Guantanamo Bay
are, in some way, accessible to the public.
Looking Ahead As I get closer to my travel dates, I know I will have to be flexible as schedules and calendars can change often. The best way to stay up to date is to check the calendar available on the Office of Military Commissions website. I will also continue researching resources to get a better understanding of the background of the hearings I have been selected to observe. Overall, I feel quite lucky to have this opportunity and am looking forward to representing the program and McKinney in the best way I can.
Natalie Gaynier, J.D. 2020 Military Commission Observation Project Program in International Human Rights Law Indiana University McKinney School of Law firstname.lastname@example.org | email@example.com
I have been interested in what has been going on at Guantanamo
Bay military prison since 2002. My
interest peaked when an attorney from my office left to work on a detainee’s
case. My interest peaked more when I was
given the opportunity to be a research assistant to work on the Guantanamo Bay
Reader. This is what led me to apply to
travel to Guantanamo Bay through IU McKinney School of Law PIRHL
This will be my first time traveling to Guantanamo Bay. I am excited to have this opportunity and am
looking forward to my travels.
In preparation for my travel I have reviewed the
Guantanamo Bay Fair Trial Manual, Know Before You Go to Guantanamo Bay Manual. I also looked up Nashwan al Tamir/Hadi al
Iraqi’s docket on the Military Commissions website (https://www.mc.mil/CASES.aspx). I was able to access unclassified documents
filed in his case including, but not limited to, the charging information and
memos filed by the Government and Defense Counsel.
The defendant has been charged with Denying Quarter, Attacking Protected Property, Using Treachery or Perfidy, and Attempted Use of Treachery or Perfidy in attacks in Afghanistan and Pakistan between 2003 and 2004. He has also been charged with Conspiracy to commit law of war offenses. The defendant has been held at Guantanamo Bay since April 2007, he was arraigned in June 2014.
My mission will be to attend, observe, be observed, analyze, critique, and publish materials on all stakeholders at Guantanamo Bay the week of 5 March to 7 March 2019. I will have the opportunity to meet and communicate with other NGO members as well as provide them with Guantanamo Bay Fair Trial Manual’s. Look for more blog posts from me while I am on my travels and updates on how the hearing is going.
Emily Hunter, JD 2020, NGO Monitor, U.S. Military Commission Observation Project, Program in International Human Rights Law, Indiana University McKinney School of Law
My name is Alexandra Keller and I have been selected to become a non-governmental organization (NGO) Observer for Indiana University Robert H. McKinney School of Law Military Commission Observation Project (MCOP). My authorization has now officially been confirmed by the Pentagon and Program Director to be a first-time observer of the hearings conducted at Guantanamo Bay, Cuba during January 26 – February 2, 2019 for Khalid Sheikh Mohammed. Thus, I now begin my observation and documentation.
I am in my third year of law school and will be graduating in May 2019. While pursuing my J.D., I have had the opportunity to extern for the Office of the Indiana Attorney General in the Consumer Protection Division, as well as an intern for the Indiana Supreme Court Disciplinary Commission.
I have interests in the federal government, federal law enforcement, and international criminal law, which has led me to taking courses such as Counterterrorism, International Human Rights and International Criminal Law.
have a deep interest in the interaction between national and human rights
issues, including the balance that must be struck between the two. For this
reason, I strongly believe in the nature of our mission as NGO Observers to
attend, observe, be observed, analyze, critique and report on the conditions
and nature of the hearings that occur at Guantanamo Bay to ensure transparency
and fair trials for the individuals there.
It is my duty as an observer to be a mechanism for transparency so that the public may better understand the practices and procedures at Guantanamo Bay, as well as to help prevent the occurrence of rights abuses through my honest and factual observations and findings.
To help prepare for my time at Guantanamo Bay, I have been following our checklist, the Miami Herald for updates on past, current and upcoming hearings, reading the Gitmo Observer blog posts, the Guantanamo Bay Fair Trial Manual, the Know Before You Go To Guantanamo Manual,
and have been keeping in touch with my fellow observers past and present. I will continue to research and take notes on the hearings I plan to observe so that I may be completely prepared upon arrival, and so that I may monitor and submit my findings as accurately and clearly as possible.
I am greatly looking forward to this opportunity to help ensure the existence of fair trials at Guantanamo Bay and can think of no greater honor or privilege. I am especially looking forward to communicating with other NGO members about their experiences and missions, being able to communicate the importance of our mission and purpose, as well as provide our materials to them. Before I begin my travels to Andrews Airforce Base, I will submit a blogpost containing an overview of the background information, stakeholders and issues being discussed in the hearings I plan to attend.
Alexandra Keller, J.D. 2019
NGO Monitor, U.S. Military Commission
Observation Project (MCOP)
I’m a 3L student at Indiana University Mckinney School of Law. During my time at McKinney I have been pursuing a certificate in International and Comparative Law. While pursuing the certificate, I’ve taken courses such as International Law, Counterterrorism, and National Security. Observing the Hadi/Nashwan military proceedings at Guantanamo Bay from will be an excellent opportunity to gain real life experience with topics I’ve only learned about in the classroom. Also, this trip is especially exciting for me because I was recently notified that I was selected to the Air Force JAG Corps. Observing the proceedings in Guantanamo will give me a chance to experience the role of a military attorney.
This mission will mark the first time that Indiana University McKinney School of Law has been authorized to send two representatives as NGO observers on the same trip. During our mission to Guantanamo Bay we will have five main responsibilities. We must attend, observe and be observed, analyze, critique, and report. As the eyes and ears of the outside world into Guantanamo Bay, we are responsible to share the truth of what we observe.
In preparation for the trip I’ve been reading the Guantanamo Bay Fair Trial Manual, the Know Before You Go To Guantanamo Bay Manual, and reading previous blog posts on The Gitmo Observer page. Also, I have been researching the background information regarding Hadi Al-Iraqi/Nashwan Al-Tamir and other similar proceedings. After spending the day in Washington D.C. today, I depart to Guantanamo Bay on Sunday, January 6, 2019. Tomorrow will be an exciting day as it will be my first trip on military aircraft and my first time landing in Cuba. I’m very much looking forward participating in the project as an observer.
I am library faculty at Indiana University McKinney School of Law and have participated in the Law School’s Military Commission Observation Project (MCOP) as a Non-governmental organization (NGO) observer, since November 2018. I was approved by the Pentagon to travel to the U.S. Naval Base at Guantanamo Bay, Cuba, for U.S. Military Commission hearings against Hadi al-Iraqi/Nashwan al Tamir scheduled for 6-15 January, 2019.
In November 2018, I had an opportunity to travel to Ft. Meade, Maryland, to monitor, observe, and report on pre-trial proceedings in the case against Hadi al Iraqi/Nashwan al Tamir (via CCTV) held on 6-9 November, 2018, as a NGO representative on behalf of the Indiana University McKinney School of Law’s Military Commission Observation Project. Professor George Edwards created the project, which sends Indiana University McKinney School of Law students, faculty, staff, and graduates to Guantánamo, Ft. Meade, the Pentagon, and elsewhere to monitor hearings. Our mission is to attend, observe, be seen, analyze, critique, and report on proceedings, which primarily are pre-trial proceedings for persons associated with al Qaeda, or the Taliban, who allegedly perpetrated war crimes. More about MCOP and Hadi/Nashwan may be found in my earlier blog post here.
In preparation for my trip, I have been reading the GuantánamoBay Fair Trial Manual, the KnowBefore You Go To Guantánamo Bay Manual, Military Commissions reports, also following Miami Herald online and reading Carol Rosenberg’s tweets on the latest goings in Guantánamo. Her latest tweets on the Hadi al Iraqi/Nashwan al Tamir case can be found here.
I am flying to Washington D.C. tomorrow morning, before departing to Guantánamo Bay on Sunday, January 6, 2019. As a first-time observer of the military hearings in Guantánamo, I am very excited and looking forward to see in-person how the operations are conducted on this remote U.S. Naval base in Cuba. I will write more before my flight to the Naval Base.
The U.S. charged Mr. Dmitry Ukrainskiy, a Russian citizen,
with cybercrimes related to malware – malicious computer software breaches of
US computer systems — and seeks to extradite him from the Kingdom of Thailand
to face charges in New York. The Russian Federation seeks to extradite Mr.
Ukrainskiy on fraud charges, unrelated to the U.S. charges.
The Bangkok Criminal Court granted the Russian request to extradite, to which Mr. Ukrainskiy consented. Mr. Ukrainskiy did not consent to the U.S. extradition request, and the Thai court scheduled a hearing on the U.S. extradition request for 12 November 2018. If the court grants the U.S. request, then the court will have granted two competing extradition request – to Russia and to the U.S. Since it would be physically impossible to extradite Mr. Ukrainskiy to two countries, a subsequent decision would need to be made on whether Mr. Ukrainskiy would be sent to Russia or to the U.S.
U.S. and Thai law students have been conducting legal
research for Mr. Ukrainskiy’s case.
The U.S. students, from Indiana University McKinney School
of Law, are enrolled in the autumn 2018 International Criminal Law course of
Professor George E. Edwards. He is also a Visiting Fellow at Bangkok’s
Chulalongkorn University Faculty of Law, with student research assistant
participation from that school. Professor Edwards and the students are working
with the Thai law firm, named Thailand Bail, owned by Mr. Nathan Feeney and
others, that represents Mr. Ukrainskiy.
This case tests the extent to which the U.S. can try
foreigners for alleged conduct occurring outside the U.S., but with effects
inside the U.S., and also tests questions concerning the role of politics in
extradition requests and the grant of competing extradition requests.
Russia has challenged the U.S. extraterritorial application
of U.S. law as applied to non-citizens generally, but as applied to Russians
The U.S. has recently sought to extradite Russians from
Hungary, Maldives, Spain, Liberia, Czech Republic, Thailand (many), and other
countries. Russia has sought to extradite their own nationals in some of these
cases, with these countries having to decide whether to send the person to the
U.S. or home to Russia. Most of the countries sided with the U.S., but, not all
(for example, Hungary sided with sending the person to Russia).
Other U.S. cases involving Russian defendants include cases
brought by U.S. Special Counsel Robert Mueller.
The U.S. Request to
Federal prosecutors in Brooklyn, New York, alleged that Mr.
Ukrainskiy and others used malicious software (malware) to breach U.S. computer
systems and access U.S. financial institutions’ passwords and usernames, and
unlawfully transfer funds from victims’ U.S. bank accounts to other countries,
Pursuant to an extradition treaty between the U.S. and Thailand,
the U.S. requested that Thailand extradite Mr. Ukrainskiy to the U.S. to stand
trial for wire fraud, bank fraud and money laundering. The alleged behavior
occurred from 2014 to 2016, and U.S. victims allegedly lost over $1 million
(U.S.). The U.S. indicted Mr. Ukrainskiy, and issued their extradition request.
Mr. Ukrainsky faces decades in a U.S. prison if sent to New York and convicted.
The Bangkok Criminal Court scheduled a hearing for 12
November 2018 on the question of whether to grant the U.S. extradition request.
Russian Request to
Within weeks after the U.S. requested Mr. Ukrainskiy’s
extradition, the Russian government requested that Mr. Ukrainskiy be extradited
to Russia to face fraud charges rooted in alleged behavior occurring some years
Russia has no extradition treaty with Thailand. However, no
rules of international law, Thai law, or Russian law prohibit extradition in
the absence of a treaty. For extradition to Russia to occur, Russia and
Thailand would only need to agree, reflecting the sovereign power of states to
enter into ad hoc agreements.
Months ago, the Thai court granted Russia’s request to
extradite Ukrainskiy to Russia, and Mr. Ukrainskiy did not object to being sent
to Russia. Extradition to Russia was put on hold until the Thai court decides
whether to grant the U.S. extradition request.
If Thailand grants the U.S. extradition request, Thailand
will be faced with two approved competing extradition requests – one from the
U.S. and one from Russia. It appears as though the courts of Thailand have
never before been faced with the question of competing extradition requests –
where two countries are competing over the extradition of a defendant.
It is physically impossible for Thailand to extradite Mr.
Ukrainskiy to two different countries, and he would likely be sent to either
the U.S. or Russia, as no other country has requested his, and he has not
requested to be sent to another country (and has requested to be sent home to
The U.S. / Thailand extradition Treaty and the Thai
Extradition Act both address criteria that Thailand might consider when
choosing between the two possible extradition recipient countries.
These criteria include that the sending country (Thailand),
when deciding between two competing requests, may consider: (a) Mr.
Ukrainskiy’s nationality; (b) which extradition request for him was received
first; (c) where his alleged crime(s) occurred; (d) the severity of the crimes
in the two countries seeking extradition; (e) and other factors.
Neither U.S., Thai, nor international law defines the
specific criteria, nor illuminates the criteria’s scope. Nevertheless, the
criteria should be used to ascertain where Mr. Ukrainsky should be sent, as
Mr. Ukrainskiy is Russian, so that operates in favor of Russia’s request.
(b) Which request was
first. The U.S. requested extradition before Russia requested extradition,
which operates in favor of the U.S. request.
(c) Where the crimes
occurred. Per the Russian request, criminal behavior occurred in Russia –
fraud. Per the U.S. request, the U.S. would likely argue that the criminal
behavior occurred in the U.S., as that is where the malware was sent, where the
victims were, and where some of the banks from which funds were transferred
were. The defense would likely argue that it is debatable where the crimes
occurred (if any crimes occurred at all). Mr. Ukrainskiy did not enter the U.S.
during the period of time that the alleged fraudulent behavior occurred, and
for the sake of argument, presume that he never in his life entered the U.S.,
for any purpose. Did his alleged U.S.-charged crimes (bank fraud, wire fraud,
money laundering) occur in the country from which the malware was dispatched
(perhaps Thailand or some other country), the U.S. where the malware was
alleged to have infected U.S. computers, the U.S. where the banks were that
held the funds that were allegedly stolen, the United Arab Emirates where funds
were allegedly transferred, Thailand where transferred funds were allegedly
withdrawn from ATM machines, or other countries?
(d) Relative severity
of the crimes. Thailand is directed to consider whether the U.S. or Russian
crimes are more severe than the other. But, the extradition agreement does not
inform whether the person should be sent to the country with the more severe
crimes or punishments, or sent to the country with the less severe crimes or
Also, there is no clear guidance as to how to weigh the
For example, in this case Mr. Ukrainskiy’s Russian
nationality would likely be considered a point in favor of extradition to
Russia, whereas the U.S. requesting extradition before Russia requested
extradition would be a point in favor of extradition to the U.S.
But are the nationality and order of request criteria to be
given equal weight in the decision making, or should one factor be given more
weight than the other? Is one point for nationality equal to one point for
being the first extradition request?
Double Jeopardy Issue
The Thai / U.S. extradition treaty and the Thai Extradition
Act prohibit extradition if it would result in double jeopardy – or ne bis in
idem – a principle of law in which a person shall not be twice exposed to
jeopardy under criminal law for the same “offense” or for the same “conduct”.
Thus, once a defendant has been “in jeopardy” in a criminal case – with either
a conviction or acquittal or another outcome – he cannot be prosecuted again.
Double jeopardy is relevant in Mr. Ukrainskiy’s case because
he was charged with and convicted in a Thai court for money laundering,
involving facts that overlap with facts associated with the charges for which
the U.S. is seeking extradition. Should the Thai court, when considering double
jeopardy, look only to the name of the crime in its determination? Must the
U.S. money laundering charges fail under double jeopardy because Mr. Ukrainsky
was convicted of money laundering in Thailand – as the crimes in Thailand and
the U.S. have the same name – “money laundering”? Or, should the Thai court not
focus on the name of the crime in both countries, but focus on what facts
underly the charges in the two jurisdictions? Are the facts underlying the Thai
charges identical to or different from the facts underlying the U.S. charges?
If the money laundering claim in the U.S. is excluded from consideration, can
extradition occur on the other two charges – bank fraud and wire fraud?
Question Doctrine & Whether Mr. Ukrainskiy get a fair trial in the U.S.?
The Thai / U.S. extradition treaty bans extradition when the
crime charged is political in nature (e.g., treason, defamation of the
government) or when the crime is charged for political purposes. In this case,
there is no allegation that the crimes charged – bank fraud, wire fraud, money
laundering – are political offenses. However, Mr. Ukrainsky would argue that he
was prosecuted for political purposes, for example, so that the U.S. might
extract information from him related to his service as a prosecutor during
Furthermore, Mr. Ukrainskiy argues that it is impossible for him to receive a fair trial in the U.S. today since he is a Russian charged with cybercrimes, given negativity associated with a dozen Russians who allegedly hacked into the Democratic National Committee’s website in 2016 during the Presidential Elections, charges of collusion with Russia during the 2016 Presidential campaign, the number of high-profile Russians extradited to the U.S. or sought to be extradited to the U.S. for cybercrimes, and the number of Russians indicted through the Special Counsel Robert Mueller investigation. Mr. Ukrainskiy e would argue that U.S. jury might be biased against him, as a Russian facing computer charges, particularly of the magnitude charged.
The 12 November
Extradition Hearing in Bangkok
A hearing in the Bangkok Criminal Court was scheduled for
1:30 p.m., Monday, 12 November 2018, at which a panel of 4 judges was to hear
arguments as to whether the U.S. extradition request should be granted.
By 1:15 p.m., major stakeholders in the case were in the
spartan, 8th floor courtroom, including representatives from the U.S. Embassy
(Department of Justice Attaché) and the Russian Embassy (Consul General),
apparent representation from the Thai Ministry of Foreign Affairs, the Thai
criminal prosecution, Mr. Ukrainskiy’s legal defense team, Russian media, a friend of Mr. Ukrainskiy, representation
from the Indiana University McKinney School of Law and Chulalongkorn Law
Faculty, and observers.
Mr. Ukrainskiy was brought into the courtroom, in prison
garb and ankle shackles, wearing a light blue surgical face mask.
By 1:30, the panel of two male and two female judges
solemnly entered. After dealing with short matters on other cases, the chief judge called Mr.
The chief judge announced that the Russian / Thai
interpreter had phoned saying she was ill and would not be in court. Apparently
only one certified Russian / Thai court reporter exists in Thailand, and when
she is out, no certified Russian / Thai interpretation can occur. She was
expected back in about 2 weeks.
At the hearing, Mr. Ukrainskiy, as the hearing’s key
witness, would have testified as to why he should not be extradited to the U.S.
Part of his testimony would have focused on his background
as an army prosecutor and as a special forces member (purportedly a member of
the Russian equivalent to U.S. Special Forces / Navy Seals) (and, as noted
below, such testimony would be presented at the resumed hearing, 17 December
No interpreter? What
After the interpreter’s absence was made known, the two
clear options were: (a) for the hearing to go forward without the Russian /
Thai interpreter; or (b) for the hearing to be postponed.
In theory, the hearing could have proceeded despite the
Russian / Thai interpreter’s absence. Interpretation could have been Thai /
English, as Mr. Ukrainskiy, who is a native Russian speaker, speaks English. A
Thai / English unofficial interpreter was present and could have interpreted.
However, it is believed that Mr. Ukrainskiy’s legal team
rejected going forward without a Russian / Thai interpreter since Mr.
Ukrainskiy himself was scheduled to testify, and his testimony would have
involved technical and legal military terms, which might have been lost with
Thai / English interpretation. Mr. Ukrainskiy has the right under Thai Law to
an interpreter of his own language, and it was decided that he would avail
himself of such.
The court decided to postpone the hearing until 17 December 2018, 1:00 p.m., in the same courtroom. This would be Mr. Ukrainskiy’s opportunity to testify on issues he wishes the court to consider when the court is cdeciding whether to grant the U.S. request to extradite. Since the Russian extradition request has already been granted, if the U.S. request is granted Mr. Ukrainskiy and his legal team will likely be back in court, arguing the merits of U.S. versus Russia as the proper place to be extradited. For the November 2018 hearing, postponed to 17 December 2018, the issue is solely whether the U.S. extradition request is granted. Again, the competing request arguments will be the focus only if the court grants the U.S. extradition request.
The Convening Authority’s Administration Building at Guantanamo. Photo from the Defense Systems Journal.
As I learned during my first visit to Guantanamo as an NGO representative of Indiana University School of Law’s observer program in January, the fact that there are hearings scheduled at the war court complex is no guarantee that they will go forward. At that time, hearings were cancelled and shortened due to concerns for the health of alleged al-Qaeda commander Abd al Iraqi/Nashwan al Tamir, who has now undergone five back surgeries in the past nine months. As we prepared to observe this week’s hearings against five alleged September 11 conspirators, we learned that there were again issues that threatened to derail the hearings scheduled through the week.
Mold issues at the war court
When the defense team for alleged 9/11 conspirator Walid bin Attash arrived at their offices in a prefabricated trailer-style building Saturday, they found it, their files, and their court clothes caked in mold. The legal teams’ trailers are a part of the “Expeditionary Legal Complex,” which, along with the “Camp Justice” tent city housing visiting NGOs and journalists, all atop an obsolete airfield. The hearings were again in question, until Sunday night, when we learned that they would indeed go ahead at 9 a.m. after an 8 a.m. conference between Judge Parella and the parties’ lawyers.
The first hour of the day was spent in discussion of the mold problems, and the delays to planned preparation they caused the defense teams. According to Bin Attash’s defense lawyer, William Montross, two members of the defense team had gone to the ER for “breathing difficulties” and a third’s arms were “all red” as a result of the exposure to the mold. His own suits were ruined, and he wore instead green chinos, a gray collared shirt, and a “Harry Potter” tie. Confidential documents had to be left behind rather than risking contaminating other areas.
Proposed alternate office contained a decaying rat and rat feces and nests. The other teams, who’s offices share a common ventilation system, were also affected. Montross argued that the hearings should be delayed to permit more preparation time to make up for time lost dealing with the mold, re-printing documents, and finding an alternate workspace. Judge Parella rescheduled oral argument on a bin Attash motion until later in the week, and otherwise decided that hearings would proceed as scheduled.
I and observers representing eight 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 sniper-netting and lined with razor-wire. There was additional security at the entrance to Courtroom II itself, and we then received our seat assignments in the gallery. The nine of us sat in the third and last of four rows on the left side of the gallery, and several journalists sat in the first row. Several uniformed servicemen sat to our left, as did a paralegal and one of the legal teams’ victim family member liaisons.
Eight victim’s family members (VFMs) entered the gallery last, sitting in three rows on the right side of the gallery, separated from us by a blue curtain. Before the hearings started, VFMs were escorted individually to the left side of the gallery to get a better view of the defendants. While most of the NGOs are lawyers or law students representing law schools and other legal organizations, one of our group represents September 11th Families for Peaceful Tomorrows, and herself lost her sister in the South Tower of the World Trade Center on that fateful day.
The gallery we were seated in 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 has not occurred while I’ve been at the court. 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.
Me in front of the tent housing three other NGO observers and I this week
Inside the courtroom are six tables for each the defense and prosecution teams of up to six defendants. 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 in some time. The five defendants were escorted in by guards of the Joint Task Force – Guantanamo Bay (JTF-GTMO). Twelve to fourteen guards rotated in and out of the courtroom and along the left wall periodically throughout the hearings.
The defense side of the court was full. Four of the defense teams, both military and civilian lawyers, are seated to the right of their clients. Walid bin Attash has declared that he no longer wants his counsel to represent him, so they sit at the sixth table. Most of the female defense lawyers, in consideration of their client’s cultural sensitivity, wear traditional Muslim abayas covering their heads. Six three shelf carts full of documents binders are arrayed around and behind defense tables. Government trial counsel sit to the right of the aisle, and are either military, Department of Defense, or Department of Justice lawyers.
Defense motions to compel additional evidence – business records correspondence
Much of the day was taken in arguments over defense motions to compel the government to produce additional evidence about CIA torture and its rendition, detention, and interrogation program. The first of these was Mustafa al Hawsawi’s motion to compel the government to produce records regarding communications the FBI had with, and records it obtained from, third parties during its investigation of the case.
Al Hawsawi lawyer, Marine Corps Lieutenant Colonel Sean Gleason, explained that during the testimony of FBI Special Agent Abagail Perkins last year, it was revealed to the defense for the first time that the banking and financial records’ declarations the prosecution had offered in its case against al Hawsawi were not collected by the FBI themselves, but were provided by foreign government intermediaries, sometimes years after the records themselves were collected. Therefore, the defense needs notes, letters, or e-mails containing requests or responses between the FBI and foreign governments in order to properly evaluate the foundation for the records. Lawyers for Walid bin Attash and Ammar al Baluchi joined in the motion, noting that the financial records were the government’s most important evidence regarding their client’s alleged support for the 9/11 hijackers.
Defense motions to compel accurate information regarding CIA black sites
Lawyers for Ammar al-Baluchi then argued two motions to compel the government to produce additional information about CIA torture, mainly conducted at “black sites” at locations around the world. Following his arrest in April 2003, al Baluchi was kept in CIA custody at undisclosed locations prior to his September 6, 2006 transfer to prison at Guantanamo. During al-Baluchi’s secret detention, he was tortured by the CIA using what have become known as “enhanced interrogation techniques.”
Al-Baluchi’s civilian lawyer, Alka Pradhan, made the argument that the index that the government had provided regarding the CIA’s rendition, detention and interrogation program (“RDI”) was full of errors, gave only code names instead of actual locations, and failed to identify individuals that were present during his interrogations and torture. Other defendants joined in the motion, and Walid bin Attash’s lawyer deferred argument until Friday’s closed session. The government argued that Judge Pohl had ruled the index they had provided was sufficient, and that witness identification was unnecessary.
Defense motions to compel information about torture and interrogations
Al-Baluchi’s learned counsel, James Connell, argued related motions that the government produce information for non-CIA requests for black site interrogations, documents regarding interrogation personnel, and a report regarding the CIA’s sleep deprivation policy. Death penalty defendants are entitled to counsel experienced in capital cases. Connell argued that it appeared that the FBI had fed questions to CIA interrogators, and that the court should therefore compel the government to provide information regarding FBI investigations in Iraq, Afghanistan, and Guantanamo.
The defense is also requesting profiles of individuals who worked at black sites and had direct and substantial contact with the defendants. Government lawyer Jeff Groharing argued that Judge Pohl had approved its index as satisfying the requirement for a synopsis of individuals with substantial contact with the defendants, and that the government was continuing to supplement its responses to the defendants’ requests.
Ammar al Baluchi was tortured at CIA black sites for 3 1/2 years prior to his transfer to Guantanamo
Court was adjourned for the day at 3:30 to permit defense teams at least some additional time to prepare for Tuesday’s testimony of William Castle. Castle was the acting general counsel at the Department of Defense in February, when Defense Secretary James Mattis fired the Military Commissions Convening Authority Harvey Rishikof and its legal adviser Gary Brown.
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
I was approved and have traveled to the U.S. Naval Station at Guantanamo Bay, Cuba for U.S. Military Commission hearings against five alleged September 11 conspirators.
I graduated with a J.D. from Indiana University McKinney School of Law in 1994, and am an employment lawyer in Indianapolis. When I was in law school, there were few international law opportunities for students.
Several years after I graduated, the school founded its Program in International Human Rights Law (PIHRL), which for over 20 years has offered students and graduates many international opportunities. One of its projects is the Military Commission Observation Project (MCOP), which sends faculty, staff, students, graduates to Guantanamo, after the program received special status from the Pentagon. I am thankful and excited about this opportunity!
My invitation to travel to Guantanamo and invaluable resources from the observer project
My mission through the IU McKinney project is to attend, observe, be observed, analyze, critique, and report on the hearings against the 5 alleged 9/11 co-conspirators.
Khalid Shaik Mohammad is the lead defendant, and is accused of masterminding the 9/11 attack on the World Trade Center and Pentagon, and overseeing the operation and training of the hijackers in Afghanistan and Pakistan. Walid bin Attash allegedly ran an Al-Qaeda training camp in Afghanistan where two of the 19 September 11 hijackers were trained. Ramzi bin al Shibah allegedly helped the German cell of hijackers find flight schools and enter the United States, and helped finance the plot. Ammar al Baluchi, Khalid Shaik Mohammad’s nephew, allegedly sent money to the hijackers for expenses and flight training, and helped some of them travel to the U.S. Mustafa al Hawsawi allegedly also helped facilitate fund transfers. All 9/11 defendants were arrested in the early 2000s, were held in CIA blacksites, and transferred to Guantanamo in 2006.
Khalid Shaik Mohammad (“KSM”)
My previous Guantanamo trip.
This is my second trip to “Gitmo” (the nickname for the naval station). In January 2018, I attended hearings in the case of alleged al -Qaeda commander Abd al Iraqi/Nashwan al Tamir. Al Iraqi / al Tamir has had five back surgeries in the past nine months, and that contributed to his having only two half-day hearings days the week I was here. Incidentally, hearings in Al-Iraqi’s case were again cut short this last week when he suffered spasms in the Courtroom and was rushed to a medical facility.
Last week, the sole high security courtroom at Guantanamo was double-booked, with hearings scheduled concurrently for the 9/11 defendants and for al Iraqi/al Tamir. Only one set of hearings can be held here at a time. Last week, the military judge in the 9/11 case, Marine Col. Keith A. Parella, held closed hearings in the Washington D.C. area, the first time a Guantanamo military commission criminal hearing in a death penalty case has been held in the continental U.S. Parella has presided since August 27 and replaced Army Col. James Pohl, who had presided continuously since 2011.
Preparing for My Trip to Guantanamo.
On Saturday, 10 November 2018, I traveled on a military flight from Andrews Air Force Base in Washington, D.C. to Guantanamo Bay. Motion hearings in the 9/11 case are scheduled to take place all week. There will be eight other representatives of non-governmental organizations (NGOs) observing the hearings with me.
My preparation for the mission to Guantanamo has included reviewing several publications of the Program in International Human Rights Law. These include the Guantanamo Bay Fair Trial Manual: Excerpts, which has introduced me to the relevant international and U.S. law. I believe this publication will be very helpful as I seek to analyze, critique and report on my Guantanamo experiences.
One of the NGO representatives, from the National Institute for Military Justice, provided the other NGOs documents relevant to the issues that are expected to be addressed. These are about 50 pleadings in the case, and a docket showing 17 motions which the court needs to address. More recent filings remain confidential, an issue which Al-Baluchi’s team hopes will also be addressed. This will certainly make for a full and interesting week.
We attended a barbeque hosted by al Baluchi’s defense team on Saturday night. The al Baluchi team sent a summary of five main issues that they expected would be addressed, and confirmed that Judge Parella intended to address those issues in a conference held earlier on Saturday.
The first is issue political influence with the military justice process, including the coordinated firing of senior military commission officials and the current CIA Director’s comments regarding the guilt of the accused.
The other issues are: defense access to additional information about CIA torture, defense access to other evidence, conditions of confinement issues, and the transparency of the military commissions. In January, our group of NGOs attended a similar barbecue hosted by Al-Iraqi’s defense team later in the week. Our meeting with al Baluchi’s defense teams this early in the week has helped us all understand the issues that will be addressed this week much better.
I plan to draft more blog posts as the week progresses.
Other NGOs and I relaxing before the start of a busy week
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Hearings in a Guantanamo Bay, Cuba U.S. military commission war crimes case are scheduled for 5 to 9 November 2018. I was nominated to travel to Ft. Meade, Maryland, where the hearings will be broadcast live via CCTV, direct from the Guantanamo courtroom, in a criminal case against an alleged high level member of al Qaeda Iraq.
I am a librarian at Indiana University Robert McKinney School of Law with a long interest in international law and human rights. When I arrived at the law school in January 2017, I was intrigued by its Military Commission Observation Project, which is part of our law school’s Program in International Human Rights Law.
In January 2018, Professor George Edwards circulated a note to faculty, staff, students and graduates announcing that we were all eligible to travel to monitor military commission war crimes hearings at Guantanamo Bay, Cuba (for live monitoring in the courtroom) and to Ft. Meade (for CCTV monitoring). In February 2018, I submitted my application and supporting documents to the Pentagon for travel to both Guantanamo and Ft. Meade, as a non-governmental organization (NGO) observer. The Pentagon cleared me for travel to Guantanamo and to Ft. Meade. Due to various circumstances, I have opted to travel to Ft. Meade for my first observation mission.
The military commission hearings I plan to monitor are against a man from Iraq whom the prosecution calls Abd al Hadi al Iraqi, but who calls himself Nashwan al Tamir. The U.S. accuses him of being a senior member of al-Qaeda Iraq, liaison with the Taliban, and perpetrator of war crimes. The charges include 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. He faces a full range of sentencing possibilities if convicted – a term of years, or life in prison. The death penalty is not on the table.
As I was preparing for monitoring, I wanted to review motion papers and other official documents for the case. I looked up the case at mc.mil. However, much of the very recent court documents are hidden behind a blocked screen that indicates that those documents are undergoing a security review and are not accessible to the public at this time.
Preparing to Monitor
My trip will begin in about a week. To prepare for the case, I have been reading the following sources: The Know before You Go to Guantanamo Bay Manual and The Guantanamo Bay Fair Trial Manual, principally authored by Professor George Edwards, with the assistance of McKinney stakeholders and contributions from many others. These manuals provide significant and necessary information for anyone monitoring these cases.
As an observer / monitor, my mission is to attend, observe, be observed, analyze, critique and report on the military commission hearing at Guantanamo. I am looking forward to this opportunity.
As part of my mission, I plan to submit another blog post before I depart, and send in posts while there.
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
I traveled to Guantanamo Bay, Cuba this weekend to monitor hearings in a U.S. military commission against an alleged high-level member of al-Qaeda who has been charged with war crimes.
My mission at Guantanamo is to attend, monitor, be seen, analyze, critique and report on the proceedings of the defendant, Mr. Nashwan al-Tamir / Abd Hadi al Iraqi (hereinafter “Nashwan / Hadi”). More about the MCOP and Nashwan / Hadi may be read through my earlier blog posts found here.
Tuesday’s hearing (25 September 2018) began with testimony from an Assistant Staff Judge Advocate (ASJA) of the U.S. Navy. The ASJA testified that he provided Nashwan / Hadi notice of his right to be present during Tuesday’s hearing in accordance with Judge Libretto’s orders during the hearing on Monday (24 September 2018). The ASJA further testified that Nashwan / Hadi declined to be present for Tuesday’s hearing, and that Nashwan / Hadi expressed feeling “medically unable to appear”.
Following a short recess, prosecuting counsel (Mr. Vaughn Spencer) and defense counsel (Mr. Adam Thurschwell) presented oral arguments regarding whether or not the week’s remaining commission hearings should proceed in Nashwan’s / Hadi’s absence.
Thurschwell argued that Nashwan / Hadi could only waive his right to appear for Tuesday’s hearing after making his first hearing appearance during this week’s commission session. As Nashwan / Hadi did not appear for the first hearing of this week’s commission session on Monday, Thurschwell argued that it would be erroneous to continue proceedings for the week absent a valid waiver of Nashwan’s / Hadi’s right to appear for those proceedings.
In other words, Thurschwell recalled the principle of express waiver as discussed under under the Rules of Military Commissions—R.M.C. 804(c). In practice, this principle requires the military judge (Libretto) to require the defendant (Nashwan / Hadi) to appear for the first hearing of a new hearing session (the Monday 24 September 2018 hearing). During that first hearing, the judge must inform the defendant of his rights, including the right to not be present at future hearings for the week. On subsequent hearing days for the week, the defendant can waive his right to be present for any hearing day during the session, in which case the court requires the defendant to sign a formal waiver stating that he is voluntarily absenting himself. Thurschwell applied this principle to the context of Tuesday’s hearing, and argued that the court did not properly follow the practice described above.
On the other hand, Spencer argued that the Senior Medical Officer (SMO) medically cleared Nashwan / Hadi to appear in court on Tuesday, and that Nashwan / Hadi had been adequately informed of Tuesday’s hearing. Therefore, Spencer argued, Nashwan’s / Hadi’s failure to appear for Tuesday’s hearing was a voluntary refusal. In other words, Spencer argued that Nashwan’s / Hadi’s absence constituted a voluntary absence as discussed under R.M.C. 804(c).
Judge Libretto ruled in line with the prosecution (Spencer), stating:
Central to the commission’s analysis is whether the accused’s refusal implicates the principle of express waiver or voluntary absence. The two principles are distinct. Express waiver, to be valid, requires an accused to be fully informed of his right to attend and the consequences of foregoing that right. Voluntary absence, on the other hand, has no such requirement. The absence needs only be found to be voluntary. In order to be voluntary, the accused must have known of the scheduled proceeding and intentionally missed them.
As an initial matter, this commission finds that the circumstances presented by the accused’s refusal to attend the scheduled sessions thus far this week implicate the principle of voluntary absence, not express waiver, as argued extensively by the defense.
In reaching this conclusion, Libretto held that Nashwan / Hadi had been medically cleared to appear for Tuesday’s hearing, and that appropriate accommodations had been made to allow his appearance. Libretto therefore deemed Nashwan’s / Hadi’s absence from this hearing to be intentional, and accordingly found “the accused’s absence from this session to be voluntary and that the accused will have forfeited his right to be present if he continues to refuse to attend”.
Libretto then ordered the commission to reconvene at 9:00 a.m. each remaining day this week, beginning on Wednesday (26 September 2018). Libretto further ordered that Nashwan / Hadi be allowed opportunities to appear for each scheduled proceeding for the week. Libretto declared that the commission would not proceed in Nashwan’s / Hadi’s absence on Wednesday or Thursday (27 September 2018). However, Libretto explained that should Nashwan / Hadi not appear on Friday (28 September 2018), Nashwan / Hadi would be considered voluntarily absent from that hearing, and the hearing would then proceed in Nashwan’s / Hadi’s absence.
Tuesday’s hearing then recessed for the day at 1:15 p.m.
Note: For those wishing to access the unofficial / unauthenticated transcript of the Tuesday 25 September 2018 commission hearing as published through the Office of Military Commissions (OMC) website, you may do so here.
Nashwan / Hadi Suffers Further Back Spasms Causing More Hearing Delays
Nashwan al Tamir / Abd Hadi al Iraqi (pictured) underwent his fifth spinal surgery within an eight month period in May 2018 (2014 photo by the International Committee of the Red Cross).
Ms. Carol Rosenberg (whose twitter feed I have been monitoring for updates while at Guantanamo) tweeted on 3:01 p.m. Tuesday that Nashwan / Hadi suffered more severe back spasms sometime following the day’s earlier hearing. She then explained that “Gitmo’s prison doctor” (presumably the Army SMO, but this remains unclear) revoked Nashwan’s / Hadi’s medical clearance to be transported from his cell.
Shortly afterward at 3:05 p.m., Ms. Rosenberg tweeted that Judge Libretto cancelled the hearing scheduled for Wednesday. Around 9:00 p.m. that evening, I learned from an NGO escort that Judge Libretto similarly canceled the hearing scheduled for Thursday as well. It remains unclear if the hearing scheduled for Friday will proceed should Nashwan / Hadi fail to appear.
Please stay tuned for further Guantanamo updates.
Jacob Irven, J.D. 2018
Military Commission Observation Project
Program in International Human Rights Law
Indiana University McKinney School of Law
Voter Protection Legal Fellow
Indiana Democratic Party