Selection for Travel to Guantanamo Bay to Observe Military Commissions

I 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
nrgaynier@gmail.com | ngaynier@iu.edu

In Preparation to Attend, Observe, be Observed, Analyze, and Critique a Hearing at Guantanamo Bay.

By: Emily Hunter

My Background

I am currently a 3L evening division student at Indiana University Robert H. McKinney School of Law.  Prior to law school I spent ten years as a legal assistant. I am currently employed as a law clerk at the Public Defender of Indiana.  

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 program. 

This will be my first time traveling to Guantanamo Bay.  I am excited to have this opportunity and am looking forward to my travels.

My Preparation

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.

Abd Hadi al Iraqi (Nashwan al Tamir) (2014 photo by the International Committee of the Red Cross)

My Mission

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 Privilege to Serve as an NGO Observer for the Military Commission Observation Project (MCOP).

Background Information 

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. 

The Mission

I 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)

Program in International Human Rights Law

Indiana University McKinney School of Law

kellerak@iu.edu

JOINT BASE ANDREWS TO GUANTÁNAMO BAY, CUBA – MILITARY COMMISSION HEARINGS AGAINST HADI AL-IRAQI/NASHWAN AL TAMIR

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. 

Garrett Welch

TO GUANTÁNAMO BAY, CUBA FOR MILITARY COMMISSION HEARINGS AGAINST HADI AL-IRAQI/NASHWAN AL TAMIR

gitmo2

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 Guantánamo Bay Fair Trial Manual, the Know Before 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.

Larissa Sullivant

Indiana and Chulalongkorn Law Students Work on Cybercrime Extradition Case Involving Russia, Thailand, and the United States

Introduction

Mr. Dmitry Ukrainskiy, a Russian citizen, whom the U.S. seeks to extradite to New York to face charges of bank fraud, wire fraud, and money laundering. The Russian Federation also wants to extradite Mr. Ukrainskiy, to Moscow

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.


Law students in Professor Edwards International Criminal Law class at Indiana McKinney brief Mr. Nathan Feeney, of the Thai Law Firm, on points of extradition law.

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.

Research Assistant Khun Praewa Kasemsamran (แพรวา เกษมสำราญ) – Chulalongkorn University Faculty of Law Student (right); Khun Nathan Feeney (owner, Thai Bail Law Firm representing Mr. Ukrainskiy) (center); Professor George E. Edwards (Professor of Law, Indiana University McKinney School of Law; Visiting Fellow, Chulalongkorn University Faculty of Law) (left) at the Bangkok Courthouse

Russia has challenged the U.S. extraterritorial application of U.S. law as applied to non-citizens generally, but as applied to Russians specifically.

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 Extradite

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, including Thailand.

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.

Research Assistant Khun Praewa Kasemsamran (แพรวา เกษมสำราญ) – Chulalongkorn University Faculty of Law Student & Professor George E. Edwards (Professor of Law, Indiana University McKinney School of Law; Visiting Fellow, Chulalongkorn University Faculty of Law)

Russian Request to Extradite

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 ago.

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.

Competing Extradition Requests

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 Russia).

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 follows:

(a) Nationality. 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 punishments.

Also, there is no clear guidance as to how to weigh the criteria.

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?

Hakeem Al Araibi of Bahrain arrives at he Bangkok Criminal Court, the same building court where Mr. Ukrainskiy’s extradition case is being heard. Bahrain sought to extradite Mr. al Araibi from Thailand to Bahrain.

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?

The Political 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 Soviet days.

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. Ukrainskiy’s case.

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 2018).

No interpreter? What next?

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.

Postponement

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.

http://www.GitmoObserver.com is the website of the U.S. Military Commission Monitoring Project of the Program in International Human Rights Law of Indiana University McKinney School of Law.

9/11 Hearings at Guantanamo

GTMOLegalComplex-featured

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.

The gallery

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.

NGO tent

Me in front of the tent housing three other NGO observers and I this week

The Courtroom

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.

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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.

Paul Logan

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

14 November 2018

 

 

 

 

Return to Guantanamo Bay to Observe 9/11 Hearings

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.

My mission

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!

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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.

The Defendants

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.

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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.

The IU McKinney program also provided me with Know Before You Go To Guantanamo Bay: A Guide of Human Rights NGOs & Others Going to Gitmo To Attend U.S. Military Commission.  This has also been very helpful.

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.

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Other NGOs and I relaxing before the start of a busy week

Paul Logan

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

My Nomination to Observe War Court Proceedings at Ft. Meade, Maryland in the case against Hadi al-Iraqi/Nashwan al Tamir

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.

Upcoming hearings

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.

My mission

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.

Larissa Sullivant

Library Faculty

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

 

Reporting from Guantanamo Bay:  Courtroom Clash and Hearing Delays

Reporting from Guantanamo Bay

I am a recent graduate of the Indiana University McKinney School of Law (IU McKinney) and I am representing the IU McKinney 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 25 September 2018 Hearing

Photo on 9-26-18 at 5.40 PM

Me reviewing the Guantanamo Bay Fair Trial Manual – Excerpts before the day’s commission hearing.

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 waiver 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

Abd Hadi al Iraqi (Nashwan al Tamir)

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.

Conclusion

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

Jacob.Irven@gmail.com

Reporting from Guantanamo Bay: Commission Hearing in Limbo

Reporting from Guantanamo Bay

I am a recent graduate of the Indiana University McKinney School of Law (IU McKinney) and I am a representative of the IU McKinney 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 is 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.

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The NGO Observer tents in Camp Justice where I reside at Guantanamo.

The Only Thing Constant in Guantanamo

Three fellow non-governmental organization (NGO) representatives join me this week in Guantanamo.

On Monday morning (24 September 2018), my fellow NGO representatives and I walked from our residence tents located in Camp Justice to the courthouse complex, about one hundred yards away.

I observed heavy equipment mobilizing around the courthouse complex as we walked.  While I presume this equipment is being employed pursuant to a series of multi-million dollar expansions proposed for Guantanamo under the Trump administration in 2018, I cannot say with certainty.

After passing through a series of security checks to gain entry into the courtroom site, we joined media representatives and military personnel in the Guantanamo courtroom viewing gallery where we would watch the proceedings.

I entered the gallery around 8:30 a.m. and observed a nearly-empty courtroom behind a double-paned glass wall separating the gallery from the well of the courtroom.  Only a few uniformed military personnel sat along the right-hand courtroom wall, while another conducted mic checks throughout.  I observed a 40-second delay between the live activities within the courtroom, the sound emitting from the gallery speakers, and the images displayed on five closed circuit televisions (CCTVs) mounted within the gallery.  I learned to expect this delay through the Know Before You Go To Guantanamo Bay guide, and have since been informed by one of my escorts that the delay seeks to ensure that classified information is not released into to the gallery, and in turn to the public at large.

At 8:57 a.m., a U.S. Army internal security officer briefed those of us in the gallery on proper gallery decorum and standard emergency protocol.  He informed us that we were visible to the rest of the court attendees, that we were otherwise visible through gallery cameras, and that we were not to cause any distractions during the hearing.  He told us that we were free to exit the gallery during proceedings (or during recess), but that we should take our personal belongings with us when we left.  He told us that the Office of Military Commissions (OMC) would not assume responsibility for our possessions, and that all materials left in the gallery after court ended would be destroyed.  The courtroom remained nearly-empty during this time, with only a few military personnel moving throughout.

At 9:02 a.m., another Army internal security officer informed us that the day’s scheduled hearing was delayed indefinitely, “if it is to occur at all”.  He told us that we were free to exit the court site and return later should the hearing be rescheduled.  As we exited the gallery, I confirmed with the announcing officer that Nashwan / Hadi was not present at the court site.  I began to accept the possibility that I may not have a chance to monitor live proceedings while at Guantanamo.

My fellow NGO representatives and I remained near the court site as directed while we waited to receive further updates on the now delayed proceedings.  By 12:00 p.m. (noon), we had yet to hear anything, and I became restless.  Clamoring for news, I fruitlessly searched through various web resources, including the Office of Military Commissions (OMC) website, and the Miami Herald, which commonly features articles published by Ms. Carol Rosenberg.  Ms. Rosenberg is an award-winning and widely-published reporter of Guantanamo happenings, and was among the media representatives present with me in the courtroom gallery when the delay was announced.

At 2:30 p.m., our escorts received notice that the hearings would continue, and that we should immediately return to the courtroom gallery.  However, upon our return, we discovered that proceedings were yet again delayed, this time until 4:00 p.m.

“The only thing constant in Guantanamo is change,” one of my escorts declared with a chuckle.

Commission Hearing Resumes

Finally, at 4:03 p.m., the recently detailed Marine Lt. Col. Michael Libretto took the bench for the first time as the presiding military judge over the Nashwan / Hadi case.  Mr. Adam Thurschwell spoke as the lead defense attorney for Nashwan / Hadi, while Mr. Vaughn Spencer spoke as the prosecuting attorney for the U.S. Government.

Libretto began the Monday 24 September 2018 hearing by stating that Nashwan / Hadi would not be present for the day’s proceedings.  Libretto said that today’s proceedings were delayed because Nashwan / Hadi “refused to attend…and refused to expressly waive his presence via a written waiver.”

Next, Libretto stated that a recently detailed U.S. Army Senior Medical Officer or “SMO” (whose duties began on 17 September 2018) conducted a medical examination of Nashwan / Hadi following Nashwan’s / Hadi’s “refusal” to attend.  Libretto then stated that that today’s hearing was being held “for the limited purpose of hearing testimony from the [SMO]”.

Next, prosecuting counsel (Spencer) and defense counsel (Thurschwell) took turns questioning the SMO.  The crux of their questions regarded Nashwan’s / Hadi’s health concerns, and whether or not it would be reasonable for this week’s remaining commission hearings to proceed in Nashwan’s / Hadi’s absence.

Abd Hadi al Iraqi (Nashwan al Tamir)

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).

During questioning, the SMO stated that it would be “reasonable” for Nashwan / Hadi to be transported from his cell for up to four hours at a time, but not more than once per week.  This would allow Nashwan / Hadi to meet with defense counsel, and to attend abridged commission hearings as needed.

Accordingly, Spencer asked the SMO whether or not removing Nashwan / Hadi from his cell for up to four hours as the SMO suggested would “affect his [Nashwan’s / Hadi’s] underlying medical condition in any way”.

The SMO responded, “I don’t believe so.”

Next, Thurschwell expounded upon Nashwan’s / Hadi’s health concerns through a series of questions.  Notably, Thurschwell asked the SMO whether or not Nashwan / Hadi has suffered chronic “severe upper back pain and spasms” which have at times caused Nashwan / Hadi “difficulty breathing”.  Thurschwell also characterized Nashwan’s / Hadi’s symptoms as “extreme pain, stress, and difficulty breathing”.

The SMO affirmatively acknowledged Nashwan’s / Hadi’s symptoms, and at one time declared, “He [Nashwan / Hadi] reports tightness and tension in his shoulders and in his trapezius that he says has been consistent for a long time.”

Later, Thurschwell asked the SMO if he could predict whether or not transporting Nashwan / Hadi from his cell could cause “those severe symptoms” on any particular occasion.

The SMO responded, “Those symptoms?  Not specifically.”

Finally, Thurschwell asked the SMO whether or not he has “any reason to doubt” Nashwan’s / Hadi’s reported pain or symptoms.

The SMO responded, “No.” and “I don’t.”

At 5:13 p.m., Libretto dismissed the SMO from the day’s proceedings, and stated that the commission would recess for 10 minutes.

Following the recess, Libretto issued the following order, directed commission officials to inform Nashwan / Hadi of the following order, and in turn concluded the Monday 24 September 2018 hearing:

One, that a session of the commission will commence tomorrow morning 25 September 2018 at 0900 [9:00 a.m.].

Two, pursuant to R.M.C. 804, the accused has a right to be present at the session.

Three, the senior medical officer has medically cleared the accused to travel to this commission session that is scheduled for 25 September 2018.

The commission is hereby ordering the presence of the accused at the 25 September 2018 session.

The commission will not order the use of force to compel the accused’s presence.

And finally, six, that it is possible that the commission may proceed in the accused’s absence if he refuses to attend the 25 September 2018 session.

Note:  For those wishing to access the unofficial / unauthenticated transcript of the 24 September 2018 proceedings as published through the OMC website, you may do so here.

Conclusion

My first day of monitoring hearings at Guantanamo required great patience and flexibility.

Pleased stay tuned for future updates.

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Me working in the NGO Center located near Camp Justice.

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

Jacob.Irven@gmail.com

Bound for Guantanamo Bay, Cuba: Reporting from Andrews Air Force Base

Reporting from Andrews Air Force Base

I am a recent graduate of the Indiana University McKinney School of Law (IU McKinney) representing the IU McKinney Military Commission Observation Project (MCOP).  This morning I am traveling to Guantanamo Bay, Cuba to monitor U.S. military commissions against an alleged high-level member of al Qaeda who is charged with several war crimes.

The MCOP, which was founded by Professor George E. Edwards, routinely sends IU McKinney students, faculty, staff, and graduates to Guantanamo to serve as non-governmental organization (NGO) Observers, through a Pentagon initiative in line with the U.S. government’s stated objective of transparency in the war crimes proceedings occurring at Guantanamo.  Indiana’s NGO Observers travel to Guantanamo with a mission to attend, observe, be observed, analyze, critique, and report on the commissions.  I write to you now from Andrews Air Force Base while waiting to board my military flight to Guantanamo in furtherance of this mission.

I am joined at Andrews by three other NGO Observers representing different organizations.  This is a relatively small group of Observers, as Guantanamo NGO Observer groups can sometimes consist of ten or more individuals.  While we wait, we are studying two manuals, prepared by Professor Edwards, related to our mission:

(a)  Guantanamo Bay Fair Trial Manual – Excerpts (which describes the U.S. Military Commissions, what a fair trial should look like at Guantanamo, the applicable law, and other related materials); and

(b) Know Before You Go To Guantanamo Bay (which describes a pragmatic approach to NGO Observation, the Roles and Responsibilities of NGO Observers, the Dos and Don’ts at Guantanamo, the beaches, the restaurants, the theaters, and various other amenities available at Guantanamo when court is not in session).

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NGO Observers reviewing copies of the “Guantanamo Bay Fair Trial Manual – Excerpts.

Beyond this, we have been introduced to two escorts who are to serve as our primary liaisons and guides during our stay at Guantanamo.  Our escorts have identified various rules to be followed while at Guantanamo (including photography limitations, security badge requirements, and the need to inform each other of our activities and whereabouts during our stay).  They also explained that serving as an NGO Observer at Guantanamo would be an exercise of flexibility and patience, as rules and schedules are often subject to change (see “Reduced Hearing Schedule” heading below).

Nashwan al Tamir / Abd Hadi al Iraqi

I will be observing the case against Nashwan al-Tamir (what he declares to be his true name), or Abd al Hadi al Iraqi (the name the prosecution used in the charges; hereinafter “Nashwan / Hadi”).  Nashwan / Hadi is an alleged senior member of al-Qaeda, and is accused of commanding indiscriminate attacks against U.S. and coalition personnel in Afghanistan and Pakistan in collaboration the Taliban, among other charges.  Nashwan / Hadi was captured in Turkey in late 2006 and was soon turned over to U.S. intelligence.  He subsequently spent 170 days in secret CIA custody before being transferred to Guantanamo in 2007, where he has been the subject of proceedings since 2014.  He is described as a “high-value detainee” by U.S. officials, and was proclaimed by the Bush administration to be among Osama bin Laden’s “most experienced paramilitary leaders”.

Reduced Hearing Schedule

In the days preceding my scheduled flight to Guantanamo, I received an email from the Office of Military Commissions (OMC) Convening Authority informing me that the hearings for this coming week in the Nashwan / Hadi case had been reduced from a full week of hearings (24 – 28 September 2018) to a single hearing day (24 September 2018).  I was not entirely surprised by this news.  Guantanamo hearing schedules tend to change with little notice, perhaps especially in the case against Tamir / Hadi, given the reported fragile state of his health.  Indeed, during my past nomination, the hearings I was scheduled to observe were cancelled altogether.

The OMC initially suggested that because of the reduced hearing days, we would return from Guantanamo earlier than scheduled.  However, at Andrews our escorts informed us that we would remain at Guantanamo for the entire week – Sunday through Saturday – even though we would have hearings only on Monday morning.  Our escorts also told us that they are organizing non-court activities at Guantanamo, with more information to soon follow.

I am excited for the hearing, and to see how the rest of the week unfolds.

Conclusion

Please stay tuned for future updates; I plan to continue blogging throughout my stay at Guantanamo.

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Fellow NGO Observers and I holding our copies of the “Know Before You Go To Guantanamo Bay Guide” in preparation for our trip to Guantanamo.  I am second from the right.

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

Jacob.Irven@gmail.com

Heading to Guantanamo for 9/11 Hearings

I’m at Andrews Air Force Base waiting for a military flight to take me to Guantanamo Bay, Cuba, to monitor hearings in the war crimes case against five alleged masterminds of the 9/11 attacks on the World Trade Center. I am representing the Military Commission Observation Project I founded at Indiana University School of Law.

The Pentagon announced that they want Guantanamo Bay proceedings to be “transparent”, and the Pentagon selected our Indiana program to help further the transparency. Our program has been sending Indiana law students, faculty, staff, and graduates to Guantanamo whenever they have war crimes hearings. Our mission is to attend, observe, be observed, analyze, critique, and report on the Guantanamo military commissions.

Hearings this week

On Monday 10 September 2018, a week of hearings will begin against Khalid Shaik Mohammad, who is charged with designing and overseeing the “plane’s operations” that destroyed the World Trade Center and damaged the Pentagon. He is joined by four other defendants who are charged with varying levels of responsibility for the 9/11 attacks–financing, recruiting and training hijackers, and facilitating communications among members of the conspiracy.

The long-serving military judge in this case resigned, and the new military judge will meet the defendants and lawyers for the first time on Monday.

Conclusion

I plan to provide updates during the week.

George Edwards

Director (Founding), Military Commission Observation Project

Indiana University McKinney School of Law

Travel to Guantanamo Bay to Monitor War Crimes Hearings Against Nashwan al Tamir / Hadi al Iraqi

Nominated for Travel

I am a recent graduate of Indiana University Robert H. McKinney School of Law (IU McKinney) seeking to begin a career in public interest law, and I am participating in IU McKinney’s Military Commission Observation Project (MCOP) as an NGO Observer.

Abd Hadi al Iraqi (Nashwan al Tamir)

Nashwan al Tamir / Abd Hadi al Iraqi (2014 photo by the International Committee of the Red Cross)

With the Pentagon’s approval, I am now scheduled to attend, observe, be observed, analyze, critique, and report on military commission hearings at the Guantanamo Bay Naval Station (GTMO) in the case against Nashwan al-Tamir (what he declares to be his true name), or Abd al Hadi al Iraqi (as he is being charged by the prosecution; hereinafter “Tamir / Hadi”).  I am scheduled to observe hearings in the case against Tamir / Hadi between 22 September 2018 and 29 September 2018.

Tamir / Hadi is an alleged senior member of al-Qaeda, and is accused of commanding indiscriminate attacks against U.S. and coalition personnel in Afghanistan and Pakistan in collaboration the Taliban, among other charges.  Tamir / Hadi was captured in Turkey in late 2006 and was soon after turned over to U.S. intelligence.  He subsequently spent 170 days in secret CIA custody before being transferred to GTMO in 2007, where he has been the subject of criminal proceedings since 2014.  He is one of seventeen men U.S. officials have described as a “high-value detainee” currently being held at GTMO, and was proclaimed by the Bush administration to be among Osama bin Laden’s “most experienced paramilitary leaders”.  Tamir / Hadi faces a maximum sentence of life in prison for his alleged crimes.

Previous Nomination

I was previously nominated to observe proceedings against Tamir / Hadi in April 2018.  However, approximately one week prior to my scheduled travel date, I received an email from the U.S. Office of Military Commissions declaring that these hearings were cancelled.  I never received an official communication stating the reason for this cancellation, nor have I located definitive information regarding this cancellation elsewhere.  Thus, I cannot conclusively state the reason for it one way or another at this time.

Notably, however, Tamir / Hadi’s severe chronic back pain, which caused him to undergo a series of four spinal surgeries in 2017, has compelled cancellations and other adjustments within Tamir / Hadi’s hearing schedule in past instances.  Indeed, Tamir has apparently undergone a fifth spinal surgery as late as May 2018, which also resulted in hearing cancelations.  With this in mind, I have opted to keep my September schedule largely flexible so I may possibly attend alternative hearings in the event of further cancelations.

Background and Interest in Observing

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Me speaking during the Program in International Human Rights Law 20th Anniversary in December 2017.

I became interested in the MCOP through my past engagements with IU McKinney’s exceptional Program in International Human Rights Law (PIHRL), which recently celebrated its 20th anniversary.  During the summer of 2017, I had the opportunity to support human rights non-governmental organizations (NGOs) spanning across three continents as a PIHRL Intern.  I worked with NGOs in Poland, Uganda, and Mongolia on a broad range of public interest and human rights work.

With the Helsinki Foundation for Human Rights in Poland, I generated research presented in amici curiae briefs in the European Court of Human Rights.  With the Community Transformation Foundation Network in Uganda, I conducted field interviews with survivors of intimate partner violence to supplement ongoing impact reports.  With the LGBT Centre in Mongolia, I helped train over 100 police officers to better understand Mongolia’s newly-established hate crime laws and to better support survivors of hate crimes.

It is through these tremendous experiences that I developed a deeper appreciation for international human rights law, international humanitarian law, and international criminal law.  This appreciation immediately attracted me to the MCOP, as the crux of its mission is to ensure the U.S. Government follows its enduring mandate to respect fair trial rights and other internationally-recognized human rights for all stakeholders during GTMO proceedings.

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Me in the Ulaanbaatar City Public Library in August 2017 presenting and facilitating discussion on “A Guide to U.S. Master of Laws (LL.M.) & Other U.S. Law Degree Programs for Students from Mongolia”, as prepared by Professor George E. Edwards.

Preparing to Observe

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Me reviewing the Guantanamo Bay Fair Trial Manual (Volume I) in preparation for travel to GTMO during my previous nomination.

To prepare myself to travel to GTMO as an NGO Observer, I continue to review several relevant documents authored by Professor George E. Edwards with contributions from other IU McKinney affiliates.  First among these are the Guantanamo Bay Fair Trial Manual (Volume I) and the Appendices to Guantanamo Bay Fair Trial Manual (Volume II).  These Manuals identify the internationally-recognized rights which apply to fair trials in the U.S. Military Commission context.  They also detail the roles and objectives of NGO Observers in this context, and thus continue to be invaluable resources during my preparations.

Next among these documents is the Know Before You Go To Guantanamo Bay Guide.  The Guide further details the roles of NGO Observers at GTMO, and seeks to assist Observers with all manner of logistics as they prepare to travel and observe hearings.  Information regarding how to travel to GTMO, how to stay healthy while at GTMO, and even where to eat while at GTMO are all included in the Guide.  Not only has this Guide been informative, it has also offered me great peace of mind.

Beyond these materials, I have continued reviewing publicly accessible GTMO case information through the U.S. Military Commission website – www.mc.mil – to better familiarize myself with the substantive proceedings in the case against Tamir / Hadi, and to better understand the procedural context of Military Commissions in general.  Among the most notable progressions in the Tamir / Hadi case since my first nomination is the detailing of Marine Lieutenant Colonel Michael D. Libretto as the new presiding judge over proceedings, who replaced the previously detailed Marine Colonel Peter S. Rubin on 13 June 2018.

Since my first nomination, I have also closely monitored posts authored by journalist Carol Rosenberg which are available on the Miami Herald, as well as subsequent blog posts by other MCOP Representatives which are available on the GITMO Observer.  As past MCOP Representatives have pointed out, Ms. Rosenberg provides comprehensive reports on GTMO proceedings, which serve as excellent supplements to the GTMO case information I described above.

I remain hopeful and excited that the hearings I am scheduled to attend will not cancel as they did during my prior nomination, and I remain eager to fulfil my important role as an NGO Observer.

As always, please stay tuned for future posts.

Jacob Irven, J.D ‘18.

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University Robert H. McKinney School of Law

At Andrews Air Force Base — Heading to Guantanamo Bay

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5 non-governmental organization (NGO) representatives after our pre-flight briefing at Andrews Air Force Base. I’m second from left.

I am a third year law student at Indiana University McKinney School of Law, and am traveling to Guantanamo Bay, Cuba through our law school’s Military Commission Observation Project. The Pentagon granted our Project status to send McKinney faculty, staff, students and graduates to Guantanamo to monitor military commission hearings. I am monitoring hearings in the case against Mr. Majid Khan, who pleaded guilty at Guantanamo to war crimes charges. His hearings are scheduled for 17 and 18 July 2018.

Our plane to Guantanamo departs from Andrews Air Force Base, in Maryland, just outside of Washington, DC. Andrews is known as the home of Air Force One, the plane used by the President of the United States.

My Experience at Andrews Air Force Base

Last week the Pentagon’s Office of Military Commission (OMC) sent me and other monitors a “Trip Brief” that provided detailed instructions for today’s trip, and informed us of what to expect.

We were instructed to meet at the Andrew’s Visitor Center, just outside the main gate of the base. There, a Pentagon driver picked us up and drove us to the Andrews air field. We checked in for our flight, just as we would check in for any commercial flight. In addition to our passport, we had to show certain documents that the Pentagon had sent us to obtain a boarding pass.

Briefing for NGOS

After I checked in for my flight, I was introduced to our two “escorts” who would be traveling to Guantanamo with the monitors. We were taken to a separate room, and the escorts introduced themselves to everyone present. We all introduced ourselves and asked questions. I also distributed the manuals provided for us from IU McKinney for NGOs. Our group consisted of five monitors (or observers)–3 law students, 1 attorney, and one law professor–from 5 different states.

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An NGO monitors reading the Guantanamo Bay Fair Trial Manual Excerpt, provided by Indiana’s Gitmo Observer.

The escorts reviewed different rules for us on the ground at Guantanamo. For example, we were told about photography limitations, badge requirements, opportunities while on base, and the approximate schedule for the next 3 days. Our escorts emphasized that we need to remain observant of rules and restricted areas. In addition, they explained that we needed to remain flexible, because rules and day to day activities can and do change with little to no notice. Our escorts also said we could possibly pet the iguanas and to watch out for banana rats.

Feelings About Being on Andrews Air Force Base

I felt very humbled. As I sat there waiting among other NGO’s, members of the press, and members of prosecution and/or defense teams, I readily acknowledged that I was now a part of something very important that many people are not privileged to experience. I already felt this mission is pertinent; however after overhearing partial conversations about Khan’s case (that I will not regurgitate, because some of it may very well be privileged) and witnessing men and woman in uniform who have signed contractions to join our armed forces in person, I began to develop an even deeper admiration for the commission.

Departure

After our briefing we were sent through security, which looked like security at any U.S. airport. Here the scanner machine was inoperable. We put our personal items into a bin for hand inspection and then walked through the metal detector.

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Also reading the Guantanamo Fair Trial Manual Excerpts – At Andrews

Around the corner from security we provided our passport and boarding pass to a soldier. We waited for approximately 15 minutes before we were taken from our terminal to our plane. In the plane, the flight attendants completed a head count. We are now headed to Guantanamo Bay, Cuba.

A. Shashan Deyoung, J. D. Candidate, 2019
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Indiana University School of Law Program in International Human Rights Law

Heading to Guantanamo Bay, Cuba Today for Next Week’s Military Commission Hearings

I’m at Andrews Air Force Base waiting for a plane to take me to Guantanamo Bay, Cuba, to monitor hearings in the case against Khalid Sheikh Mohammed (KSM) and four other alleged masterminds of the 9/11 attacks (the “9/11 case”). The hearings are scheduled to occur from 28 April through 5 May 2018.​

I arrived in Washington, D.C. on Thursday, April 26 and have been preparing for my final exams that I am taking the week after I return from Gtmo.IMG_2087

This week’s hearings may likely include the following issues, including motions regarding CIA black site location information, access for the Defense to interview current or former members of the CIA, the Trump administration’s influence on military justice process, access to further evidence through discovery, current confinement issues, and procedural issues regarding the speed at which unclassified pleadings are released publicly.

I will report back after my observation this week.

 

Sheila Willard (J.D. Candidate, ’18)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

My Nomination to Observe War Court Proceedings at Guantanamo Bay, Cuba

Nomination

I am a third-year law student at Indiana University McKinney School of Law, and have participated in the law school’s Military Commission Observation Project (MCOP) as an NGO Observer since October 2016.  The MCOP is part of the law school’s Program in International Human Rights Law.

I was confirmed by the Pentagon to attend, observe, be observed, analyze, critique, and report on military commission hearings at the Guantanamo Bay Naval Base (GTMO) in the case against Khalid Sheikh Mohammed (KSM) and four other alleged masterminds of the 9/11 attacks (the “9/11 case”). The hearings are scheduled to occur from 28 April through 5 May 2018.

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Meeting fellow NGO observers in Gtmo during my last observation, October 2017.

This will be my fourth military commission observation. My first observation was at Ft. Meade, Maryland, where I observed hearings in the 9/11 case via CCTV in October 2016. My second observation was in January 2017 at Guantanamo Bay, Cuba, where I observed hearings in the case against Hadi al Iraqi / Nashwan al Tamir, an alleged high-ranking member of al Qaeda. My third observation took me back to Guantanamo Bay where I attended the 9/11 hearings in October 2017.

Background and Interest in Observing

I became interested in the MCOP during the fall of my second year of law school after hearing about the program and other students’ experiences in observing the hearings. Stemming from my interest in human rights, I applied to participate in the MCOP observations.

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Touristing in a bell tower while working with refugees at an NGO in Prague.

In the summer of 2017, I worked in Lisbon, Portugal and Prague, Czech Republic at non-governmental organizations (NGOs) through the Program in International Human Rights Law (PIHRL), which is the program that administers the MCOP.  During my time in Prague, I had the incredible experience of working with people seeking asylum in Czech Republic.

The PIHRL recently celebrated 20 years of successful internship placements around the world. I was also a research assistant to the program director of PIHRL in the fall of 2017. This coming fall, I will be working abroad  in an area of international human rights law.

Preparing to Observe

Even though my observation is a few weeks away, I am preparing now so that I am fully informed and updated on the hearings. I am paying careful attention to a document developed and written by MCOP participants titled What Human Rights Non-Governmental Organization (NGO) Observers and Others May Want to Know Before Traveling to Guantanamo Bay, Cuba. This document, of which Professor George Edwards is the principal author, provides all of the information necessary to successfully prepare for and complete a mission to Guantanamo.  Without this guide, preparing for my mission would not be complete, even though I have traveled to Ft. Meade and Guantanamo in the past. It is a resource that is full of information not only for the first-time participant, but also for the seasoned observer.

I have also been keeping up-to-date on the hearings and goings on at Guantanamo by following the Miami Herald online, as journalist Carol Rosenberg keeps close watch on the proceedings and reports on the hearings and beyond. I have also found Twitter to be instrumental in keeping informed about the hearings.

I will soon begin to prepare my travel arrangements to Andrews Air Force Base in Maryland, where I will depart to Guantanamo Bay.

NGO Coins

The MCOP has developed a special coin for distribution.  I will have a few coins available during this observation.

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Sheila Willard (J.D. Candidate, ’18)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

Final Mission to Guantanamo Bay as Law Student

I am preparing to depart for Guantanamo Bay on my final observer mission as a student at the Indiana University McKinney School. I will be traveling for the Hadi al Iraqi/Nashwan al Tamir hearings taking place on 17-18 April 2018. Although the hearings were initially scheduled to last the entire week, observers were informed that the 14-21 April hearing week has been shortened to 16-19 April 2018. Two travel days are normally allotted for in person missions to Guantanamo. The schedule change is not atypical as my last trip to Guantanamo was initially expected to last a few days longer than originally scheduled, and although we ended up returning on the originally scheduled date, we did not learn this until we were already in Guantanamo.

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How I Got Involved

I learned of the Military Commission Observation Project at McKinney before I applied to the Law School and the Program did play a role in my decision to apply. During my first year I was determined to become involved in the program and I applied using the link on the Law School’s web site. Before I considered traveling to Guantanamo Bay I attempted to travel to Fort Meade, Maryland to view hearings via closed-circuit video stream on the military base. Unfortunately, the hearings were cancelled when I was first scheduled to travel to Ft. Meade, so I tried again. Poetically, the first set of hearings that I was able to view at Ft. Meade were the Hadi al Iraqi/Nashwan al Tamir hearings, the same case that I am scheduled to travel to Guantanamo for next month on my last mission. When I traveled to Ft. Meade, I met Professor Edwards and a few other students on the base and Professor Edwards explained what was going on during short court recesses. The military commission is different from civilian courts in the United States. I learned about concepts such as: the convening authority, sensitive compartmentalized information facilities (SCIF), the prisoner/detainee distinction, unusual chain of custody rules, accusations of violations of attorney client privilege, and many more. I cannot begin to account for the volume of knowledge that I acquired through my travels to Ft. Meade, Guantanamo Bay, and attending law school events. When I was eventually allowed to travel to Guantanamo Bay, I knew a little of what to expect because I had already seen the courtroom, although nothing can substitute for being there in person.

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Observers from Indiana at Ft. Meade monitoring a Guantanamo Bay Military Commission hearing in 2016.

Developments in Guantanamo Bay

As I prepare to depart for Guantanamo I am cognizant of changes that are occurring in the Bay. Secretary Mattis fired the Convening Authority, the case involving the U.S. Cole bombing has been abated, a new attorney client meeting building is in the works, and a contract was awarded to construct a new school. Further, Joint Task Force Guantanamo is examining prisoner/detainee capacity and what it would take to increase capacity and bids are requested for a mental health facility with padded cells . Staying up-to-date is essential to the role that we have as observers. I will continue to update this blog through my return so that others will know the goings-on during my travels.

 

Ben Hicks

3rd Year Student

Indiana University McKinney School of Law