Going Back to Guantanamo Bay Today

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Andrews Air Force Base at Dawn. I took this photo in front of the Visitors’ Center

Today is my 4th scheduled trip to Guantanamo Bay, Cuba, since January 2017, the month of the inauguration. The first three of these early 2017 war crimes pre-trial hearings were cancelled, the last one just hours before our military flight was scheduled to depart Andrews Air Force base.

I’m back at Andrews again pre-dawn, with dozens of other people – civilian and military – heading to Guantanamo for US military commission pre-trial hearings in the case against al Tamir (Hadi al Iraqi), an alleged high-level Al

laptop and boarding pass -- april -- Andrews

Laptop, passport & boarding passcaption

Qaeda member who allegedly committed war crimes. These hearings were originally scheduled for two weeks — five days this coming week and five days next week — but next week’s hearings were cancelled.

Boarding Pass -- alone - Andrews -- April 2017

Boarding pass. Note the price.

We were meant to arrive at Andrews at 6:00 AM for a 10:00 AM flight — four hours in advance is standard. While waiting, there is time for me to meet the other 4 non-governmental organization observers (described below), and to see who else is scheduled to fly with us. There has not been much air traffic at Andrews on any of my trips to and from Guantanamo.  On occasion, dignitaries on official planes will pass through the otherwise spartan Andrews Air Terminal.

hadi-al-iraqi

The defendant — al Tamir (a/k/a Hadi al Iraqi)

The defendant – al Tamir

al Tamir is a high-value detainee who is an alleged high-ranking member of al Qaeda who served as liaison between al Qaeda in Iraq and the Taliban. He is charged under the U.S. Military Commissions Act with a series of war crimes, including attacking protected property, perfidy / treachery, denying quarter, and targeting noncombatants such as medical workers and civilians. Among other things, he is alleged to have helped the Taliban blow up the monument-sized Bamiyan Valley Buddha Statues, which were a UNESCO World Heritage site.

al Tamir was officially charged in the equivalent of an arraignment in a Guantanamo Bay courtroom in June 2014. I happened to be present at Guantanamo and in the courtroom for that proceeding.

Unlike most of the other detainees charged with international crimes, al Tamir is facing a maximum sentence of life imprisonment, rather than a death sentence faced by, for example, the five men charged with masterminding the 9/11 attacks on the World Trade Center and the Pentagon.

Our Pre-Trial Hearing Week at Gitmo 

It is unclear what will transpire during this week of pre-trial hearings. I downloaded an official docket of motions originally scheduled to be argued in court this week. However, the amended docket is hidden behind a pentagon security firewall, beyond the reach of the small handful of “observers”, like myself taking today’s 3-hour flight to this remote outpost tribunal. Rumor has it that we will only have 2 days in the courtroom this week, though the hearings are scheduled morning and evening, Monday – Friday. This means that we may have plenty of time to explore non-courtroom endeavors, including research and writing. Time permitting, I will be able to focus on research for my new book, The Guantanamo Bay Reader: Voices of Those Living and Shaping the Gitmo Experience.

Inevitably, many of us on these trips find time to engage in recreational activities.

It’s good to see some familiar faces here in the terminal, weary as we all gear up for a solid week of Guantanamo work.

3 observers - Andrews -- april 2017

The other 3 male Observers. We have one female observer on this trip as well.

It is also great to meet the 4 other observers who will be with me on this trip. Most appear to be lawyers, with two being prosecutors.

With us are the military judge and his staff, prosecutors, defense counsel, interpreters and translators, security personnel, media, escorts for various groups, and us observers. I also noticed some families, with young children, returning to Guantanamo where they are stationed as part of the 3 to 4 thousand permanent U.S. military living at Guantanamo. Another approximately 1,600 are at Guantanamo to handle matters related to the 41 detainees remaining there.

IMG_0035Please stay tuned for more reports from Guantanamo Bay. Among other things, I plan to provide updates on the Guantanamo Bay Fair Trial Manual, produced by the Guantanamo Bay Military Commission Observation Project of the Indiana University McKinney School of Law, and share information about the 4 other NGO representatives scheduled to observe this week’s proceedings with me. I also plan to discuss my new book, The Guantanamo Bay Reader.

Guantanamo Photo Exhibition at Indiana Law – The Unreported Side of Gitmo

 

Aline Fagundes and Andy Klein - Atrium - April 2017 -- Photo Exhibit

 Dean Andy Klein and Judge Aline Fagundes in front of the Guantanamo Photo Exhibition that was created by Judge Fagundes.

Indiana law students, faculty, staff and graduates have a long history with Guantanamo Bay. Much of their work relates to the U.S. Military Commissions – a military tribunal – created by Congress in 2006 to try detainees for alleged conduct associated with war.

 

The students, from Indiana University McKinney School of Law, are holding a photo Exhibition that highlights aspects of Guantanamo that do not focus on their legal work on important cases like that of alleged masterminds of the 9-11 attack on the World Trade Center and Pentagon.

The Exhibition focuses on Guantanamo as a tropical island outpost that “holds a rare natural beauty in the Caribbean Sea”.

Guantanamo is a “place globally associated with stories of terrorism, torture and lengthy detention without charge”, but it has another side to it that is rarely reported, the students note.

The Exhibition comprises photos of nature at the U.S. Naval Station Guantanamo Bay, Cuba (also called “Gitmo”).

Brilliant sunrises and sunsets, sand covered beaches with lapping waves, iguanas, and vultures appear in vividly vibrant, large-scale photographs, clear and sharp.

Indiana McKinney’s Guantanamo involvement.

Indiana McKinney law students, faculty, staff and graduates have been associated with Gitmo for most of the 15 years since the first detainees arrived there in January 2002.  Their Gitmo roles have included law student researcher, expert witness, media representative, chief defense counsel, prosecutor, detention camp legal advisor, detention center guard, Defense Department public affairs representative, and fair trial observer.

Today’s Exhibition explores Gitmo through the eyes of McKinney students who traveled to GTMO as fair trial observers.

The Department of Defense grants “NGO observer status” to Non-Governmental Organizations such as McKinney’s Program in International Human Rights Law, for the stated purpose of promoting transparency at the Commissions. The McKinney human rights program then formed the MCOP – Military Commissions Observation Project. The MCOP sends McKinney faculty, staff, students and graduates to Gitmo Bay to attend, observe, analyze, critique, and publish materials on the hearings. They are fair trial observers.

Exhibition details

edwards and fagundes -- ft meade - helicopter -- 11 March 2017

Judge Fagundes and Professor Edwards at Ft. Meade, Maryland

The Exhibition, sponsored by the law school’s Program in International Human Rights Law  (PIHRL) & Master of Laws Association (MLA), is titled “Guantanamo Bay, Cuba, Through the Eyes of Indiana University McKinney School of Law Observers”.

edwards and fagundes -- Pentagon -- 21 March 2017

Judge Fagundes & Professor Edwards at the Pentagon.

The Exhibition is in the Law School Atrium, 530 West New York St., Indianapolis, IN  46208. It runs from 20 April to 15 May 2017, from the end of classes, through the exam period, until the graduation ceremonies.

The Exhibition was created and organized by Judge Aline Doral Stefani Fagundes, LL.M. candidate, MLA President. Judge Fagundes traveled to Gitmo twice, and traveled to the Pentagon and to Ft. Meade, Maryland for other Guantanamo Bay – related hearings.

 

The students noted that the Exhibition would not have been possible without the help of the McKinney Graduate Programs, the Office of External Affairs, and the Office of Students Affairs.

Learn more at www.GitmoObserver.com

Some photos from the Exhibition appear below.

 

 

U.S.-Educated Detainee Asks U.S. Board To Release Him From Guantanamo

 

GTMO -- sarifulla paracha -- at age 67 -- with smile

Mr. Parahca two years ago at age 67

This morning, in a dark, locked, secure Pentagon conference room, I attended a hearing in which Guantanamo’s oldest detainee, 69-year-old Mr. Saifullah Paracha, asked the U.S. government to set him free. I was joined by Judge Aline Fagundes, who is a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, and several other carefully screened civilian monitors.

 

The hearing was held pursuant to a 2011 Executive Order issued by President Barack Obama that provides detainees periodic reviews to determine if the detainees are a threat to U.S. national security. If the Periodic Review Board (PRB) finds that the detainee is a threat, he remains detained. If he is found not to be a threat, he may be repatriated to his home country or resettled in a third country.

Mr. Paracha argued for his release. The government alleged that Mr. Paracha was a “businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners”.

The PRB is expected to render a decision in Mr. Paracha’s case in about a month.

Today’s hearing – Who? Where?

Today at the Pentagon we had 6 observers from non-governmental organizations (NGOs) and the media. Two of us were from the Guantanamo Bay project I founded at Indiana University McKinney School of Law (GitmoObserver.com). Our project sponsors Indiana Affiliates to travel to hearings at Guantanamo, the Pentagon, and Ft. Meade, Maryland.

We were met by 2 military and one civilian escort in the Pentagon’s Visitor Center, and escorted to a conference room where we talked amongst ourselves and listened to the Military History Channel, waiting for the hearing to commence.

Others present for the hearing included members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. These individuals were not with us at the Pentagon, but were at a separate, undisclosed location in the DC area. It is believed that also present for the hearing, also at one or more undisclosed locations, were the Legal Advisor to the Board, the Case Administrator, a Hearing Clerk, and a Security Officer.

The detainee – Mr. Paracha – was present, by close circuit TV.

Mr. Paracha was joined by a “personal representative”, who is a military official dressed in uniform, who has been spending time with the Mr. Paracha and helping him present his case. The personal representative is not a lawyer or other sort of legal professional, and communications between Mr. Paracha and his personal representative are not protected by attorney client or similar privilege.

 The hearing begins

 The hearing was scheduled to begin at 9:00 a.m., but what appears to have been a technical glitch resulted in a delay. Some of us were concerned, since at the last PRB we attended the audio feed was great from Guantanamo Bay but there was no visual feed so the screen was blank. Today’s visual feed was blurry, but at least we could see the Guantanamo hearing room and its occupants, unlike at the last PRB.

GTMO -- sarifulla paracha -- at age 62

Mr. Paracha

At 9:14 a.m., a picture appeared on the almost ceiling-height screen.

 

In our dimly lit conference room, we saw on the screen the dimly lit Guantanamo room where the detainee sat at the end of a rectangular table, facing the camera, with a stack of papers in front of him. They were in one of Guantanamo’s trailer-like, austere, rooms that had plain walls, floor, and table.

In contrast to the bland surroundings, the hearing room had high back office chairs, that looked like high-quality leather chairs one might see in a law associate’s office.  Aside from air conditioner units, seemingly from the 80s, hanging window-height on the wall behind Mr. Paracha’s head, there was nothing else on the walls.

On the table in front of Mr. Paracha’s seat was a table-top name plate that said in large, bold, all capital letters “DETAINEE”.

Mr. Paracha wore a white top, with somewhat short sleeves that appeared bunched at the elbows. His attire was clearly not a detainee “uniform”. Through the blur it appeared as though he had a white beard and a bald head.

The personal representative sat at the table on Mr. Paracha’s right, perpendicular to him, and not directly next to him.

The hearing began with a male, off-camera voice announcing that the hearing was commencing, mentioning some hearing rules, identifying who was present – boiler point.

Next came a female voice, again off camera. This voice read the Government’s Unclassified Statement, as follows:

Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them. 

Mr. Paracha appeared to be paying close attention to whichever person happened to be speaking at the time – one of the off-camera narrators or his personal representative. The hearing was conducted in English, as a voice in the background stated that Mr. Paracha had waived his right to an interpretation of the hearing in another language of his choice.

While the personal representative spoke, Mr. Paracha would from time to time glance at her. At other times he appeared focused on the papers in front of him, appearing to follow along in English, flipping pages as the script was being read. At times he would place his left open palm firmly on the stack of papers, as though holding them down from a breeze.

The hearing ended at 9:19 — just 5 minutes after it began. This was the shortest PRB I have attended. They typically begin at 9:00 and run no longer than 30 minutes.

No private counsel of Mr. Parach attended today’s PRB, and no statement was read by any private counsel for Mr. Paracha’s today. That was one reason that the PRB was shorter than usual. It is unclear why private counsel did not appear today.  A statement by the private counsel Mr. David H. Remes had been posted on the Perriodic Review Board website here. But, that statement was the same statement submitted under Mr. Remes for Mr. Paracha’s file review PRB in 2016. That statement ended with this sentence:

For these reasons, I respectfully encourage the Board to convene a full review and hope that it will conclude that Mr. Paracha’s continued detention is unwarranted.

David H. Remes

Approved for Public Release
UNCLASSIFIED

That statement asked the Board to convene a “full review”, and today’s hearing was the “full review” requested. If Mr. Remes submitted a private counsel statement for today’s hearing, that statement was not posted on the PRB website (as of tonight — 8:55 p.m., Tuesday, 21 March 2017), and was not read at today’s hearing. What was posted online under Mr. Remese name was from last year.

Mr. Paracha’s background

Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.

Uzair Paracha

Uzair Paracha, Mr. Paraha’s son, is serving a 30 year sentence in a U.S. federal prison on terrorism-related convitions.

The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.

 

Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.

Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.

The hearing – a Periodic Review Board – PRB

Today’s hearing is called a Periodic Review Board (PRB),  and was pursuant to a 7 March 2011 Executive Order (number 13567) which has required most detainees to have a “periodic review” of their detention status.

The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.”   Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.

Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.

Paracha’s 3 PRB hearings — summary

Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.

The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States. In making this determination, the Board considered the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.

  • File Review. Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:

MEMORANDUM FOR THE RECORD

SUBJECT: Periodic Review Board File Review – Saifullah Abdullah Paracha (PK-I 094)

On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.”  The PRB previously conducted a full review of the detainee and on 7 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States.  After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to Whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.O. 13567.

  • Full Review. It was Mr. Paracha’s full review that was held today. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will repatriate him to Pakistan or send him to a 3rd country – outside the U.S.

 The Board will likely publish a decision on this full review in a month or so.

More on this hearing?

The initial part of the PRB was unclassified, and that is the portion of the PRB that Judge Fagundes, the other monitors and I observed. During that portion of the PRB, we were sitting in a secure Pentagon viewing room watching Mr. Paracha and his personal representative live from Guantanamo Bay.

PRBs v. Military Commissions

Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.

PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.

Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.

 

edwards and fagundes -- Pentagon -- 21 March 2017

Professor George Edwards & Judge Aline Fagundes at the Pentagon before the Periodic Review Board (PRB) held on 21 Marh 2017

Judge Fagundes’ observations

 

Judge Fagundes is the first student from Indiana University McKinney School of Law to participate in all three types of hearings our Indiana Guantanamo Bay Military Commission Observation Project / Gitmo Observer may send affiliates to observe:

  • She traveled to Guantanamo Bay, Cuba to monitor U.S. Military Commissions live, in the courtroom.
  • She traveled to Ft. Meade, Maryland, to monitor U.S. Military Commissions via a secure videolink from Guantanamo.
  • She traveled to the Pentagon to monitor Guantanamo Bay Periodic Review Board (PRB).

Judge Fagundes is researching and writing a paper that focuses on international law requirements for transparency in the U.S. Military Commission system. She has described some of her experiences on this blog – www.GitmoObserver.com.

George Edwards

Founder, Periodic Review Board (PRB) Project

Guantanamo Bay, Cuba U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law (PIHRL)

Indiana University McKinney School of Law

_______

Traveling to the Pentagon to hear Guantanamo’s Oldest Detainee Seek Release

 

GTMO -- sarifulla paracha -- at age 67 -- with smile

Mr. Saifullah Paracha

On Tuesday Guantanamo’s oldest detainee, Mr. Saifullah Paracha, will likely plead at a hearing that he is not a threat to U.S. national security. He will ask to be repatriated to his homeland of Pakistan or resettled in a 3rd country.

 

During the parole-like hearing, Mr. Paracha will be located in a small, bare trailer at Guantanamo. The proceeding will be videocast live to a small Pentagon room where I plan to watch it with a handful of other carefully screened observers, including two of my Indiana law students (Judge Aline Fagundes and another Master of Laws student).

Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.

Uzair Paracha

Mr. Uzair Paracha, Mr. Paracha’s son, who is serving a 40 year U.S. terrorism sentence

The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.

 

Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.

Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.

The hearing – a Periodic Review Board – PRB

This hearing at which Mr. Paracha  will argue is called a Periodic Review Board (PRB),  and will be conducted pursuant to a 7 March 2011 Executive Order (number 13567) which has required most detainees to have a “periodic review” of their detention status.

The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.”   Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.

Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.

Paracha’s 3 PRB hearings

Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.

The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States. In making this determination, the Board considered the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.

  • File Review. Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:

MEMORANDUM FOR THE RECORD

SUBJECT: Periodic Review Board File Review – Saifullah Abdullah Paracha (PK-I 094)

On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.”  The PRB previously conducted a full review of the detainee and on 7 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States.  After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to Whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.O. 13567.

  • Full Review. It is Paracha’s full review that is scheduled for this Tuesday. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will repatriate him to Pakistan or send him to a 3rd country – outside the U.S.

 The Board will likely publish a decision on this full review in a month or so.

Below is more information about what Tuesday’s full PRB may be like.

 

podium

Judge Aline Fagundes, a Master of Laws (LL.M. student at Indiana) is expected to attend Mr. Paracha’s PRB at the Pentagon. She was at the Pentagon earlier this month for a different PRB.

What will Paracha’s PRB be like on Tuesday?

 

  • Who will be present?

 I suspect that other representatives of Non-Governmental Organizations (NGOs) (including 2 students from Indiana University McKinney School of Law) will be present with me at the Pentagon on Tuesday, and possibly some media. This is the third PRB to be held under the Trump Administration.

Others present for the hearing will include members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. Presumably each of those representatives will watch remotely in his or her office in the DC area. Also likely to be present for the hearing are the Legal Advisor to the Board; the Case Administrator; a Hearing Clerk; and a Security Officer, though it is not clear where these individuals would be located at Guantanamo Bay or elsewhere.

Who will make statements made at the PRB?

1.  First, U.S. military official will read an “Unclassified Statement”. The statement for Tuesday is already posted online, and is as follows:

Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them. 

2.  Mr. Paracha’s Pentagon-appointed personal representative may make a statement. The text of this statement has not yet been posted online.

3.  Mr. Paracha’s private counsel may make a statement. The text of this statement has not yet been posted online.

 More on this hearing?

The initial part of the PRB will be unclassified, and that is the portion of the PRB my students and I will observe. During that portion of the PRB, I will be sitting in a secure Pentagon viewing room watching the hearing live, which will be happening at Guantanamo Bay.

It is possible that the Pentagon will post a statement by Mr. Paracha and the other statements mentioned above (statement by his Pentagon-appointed personal representative and by his private counsel). If these are posted on the PRB website, I will plan to post them on this blog later.

PRBs v. Military Commissions

Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.

PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.

Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.

Conclusion

So far as we can tell, Paracha’s PRB is still scheduled to go forward on Tuesday. That is, the Pentagon has not notified us that it will not go forward. If it does go forward, it seems likely that Mr. Paracha will attend, as there has been no suggestion that he will miss his first full review.

Please watch this space for an update post-PRB.

George Edwards

Founder, Periodic Review Board (PRB) Project

Guantanamo Bay, Cuba U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law (PIHRL)

Indiana University McKinney School of Law

_______

 

Know Before You Go To Guantanamo Bay Guide – Updated

Today we posted the newest version of our Know Before You Go To Guantanamo Bay GuideIt contains 90 pages of information to help you prepare for a trip to this remote Cuban military outpost, including information about the U.S. war crimes trials being held there.

Want to learn intricacies on gaining permission to travel to Guantanamo? What about information about Guantanamo Bay accommodations, restaurants, recreation, sites?

The Guide contains up-to-date information, including about the U.S. Naval Base’s newest restaurant, called Tropical Cabana, that is “Inspired by Cuba, Jamaica & the Philippines in a Relaxed Island Atmosphere”.

It also now contains information / photos of artwork done by one of the courtroom guards – animal figures made of glass collected from Glass Beach.

Safe travels!

For a copy of the Know Before You Go to Guantanamo Bay Guide click this link. Or access the Guide below:

Indiana Law School Affiliates Travel to Monitor Guantanamo Bay War Crimes Hearings

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Mr. al Nashiri

For two weeks this month, Guantanamo Bay war crimes hearings have been held in the case against Mr. Abd al Rahim al Nashiri, who is alleged to have masterminded the 2000 bombing of the U.S.S. Cole off the coast of Yemen, killing 17 U.S. sailors and wounding dozens more.

Representatives of Indiana University McKinney School of Law have monitored these hearings, live in the Guantanamo Bay courtroom, and remotely by CCTV at a secure facility in Ft. Meade, Maryland.

In addition to monitoring military commissions, Indiana affiliates also monitor Guantanamo Bay Periodic Review Board hearings (PRBs), that occur live at Guantanamo Bay but are broadcast live by CCTV into a secure room at the Pentagon. The PRBs are separate and distinct from the military commissions.

All Indiana monitors carry out the 5-part mission of Indiana McKinney’s Military Commission Observation Project, to: (a) attend; (c) observer; (c) analyze; (d) critique; and (e) report on the substance and the form of the legal proceedings.

All Indiana monitors contribute to research and writing of the Guantanamo Bay Fair Trial Manual, which is an independent and objective guide on rights and interests of all Guantanamo Bay stakeholders, and not just the rights and interests of the defendants. The Manual examines rights and interests of the prosecution, the victims and victims’ families, the media, the public, detainees who are not charged, witnesses, the military detention center guards, and others.

Indiana monitors also contribute to the Know Before You Go to Guantanamo Bay Guide guide, which offers travelers to Guantanamo insights into what to expect there. Also, Indiana monitors contribute to the blog, resource database, and other components of our Gitmo Observer website – www.GitmoObserver.com (and our twitter feed — @GitmoObserver).

Indiana monitors who travel to Ft. Meade, the Pentagon and Guantanamo Bay carry out their responsibilities independently and objectively.

Indiana Observers at Guantanamo

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Judge Fagundes at Andrews Air Force Base in 2016 on her first of 2 trips to Guantanamo Bay.

On Saturday, 4 March 2017, Judge Aline Fagundes, who is a Master of Laws (LL.M.) student at Indiana, flew on a U.S. military flight from Andrews Air Force Base to Guantanamo Bay, Cuba to monitor a week of al Nashiri hearings. At Guantanamo Bay, she witnessed the proceedings while seated in Guantanamo’s courtroom, in a gallery behind a double-paned glass wall that separated her and other observers from the lawyers, the judge, and the defendant. This was the second trip to Guantanamo Bay for Judge Fagundes, who traveled there in 2016 to monitor hearings in the 9/11 case against the 5 alleged masterminds of the attacks on the World Trade Center and Pentagon.

 

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Mr. Tex Boonjue, 2nd from left, with other human rights monitors at Andrews on Saturday, 11 March 2017, waiting for their flight to Guantanamo.

A week after she arrived, another military flight from Andrews touched down at Guantanamo, carrying Mr. Tex Boonjue, a 3rd year Indiana J.D. student. Mr. Boonjue and Judge Fagundes met briefly at the Guantanamo Air Terminal, where the baton was passed for the second week this month of on-site monitoring.  This interchange at Guantanamo marked the first time since 2003 – when Indiana McKinney affiliates fist became involved with Guantanamo – that Indiana has had 2 representatives on the ground at Guantanamo at the same time. On of the dozens of trips, Indiana has only had one representative on the island at a time.

The plane that carried Mr. Boonjue to Guantanamo picked up Judge Fagundes and brought her back to Andrews. Judge Fagundes spent the weekend in the DC area, then traveled to Ft. Meade, Maryland to witness, via CCTV, continued hearings in the al Nashiri case.

 

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Mr. Tex Boonjue & Judge Aline Fagundes meet at the Guantanamo Bay Air Terminal, 11 March 2017. Fagundes was boarding the plane that had just brought Boonjue from Andrews Air Force Base

Both Mr. Boonjue and Judge Fagundes have published multiple blog entries on www.GitmoObserver.com. You can read about some of Judge Fagundes’ experiences here and about some of Mr. Boonjue’s experiences here.

Indiana Observers at Ft. Meade

Early Monday morning, 13 March 2017, Judge Fagundes arrived at the Ft. Meade Army Base in Maryland, where the Guantanamo Bay hearings are broadcast via satellite to a secure viewing room.

Upon her pre-dawn arrival, she stopped at the Ft. Meade Visitors Center, where she was able to collect a badge that granted her access to the base. She traveled about a mile onto the base to the McGill Training Center, where the Office of Military Commissions has organized a live feed from the Guantanamo Bay courtroom.

At Ft. Meade’s McGill facility, Judge Fagundes saw the Guantanamo Bay courtroom from a different perspective. While at Guantanamo, she witnessed the proceedings from the gallery, which is at the back of the courtroom, offering a view of the entire courtroom at all times. She was able to see the judge, the prosecution, the defense counsel, the defendant, the security officers in military uniform, and court staff. She could also see occupants of the viewing gallery, including other observers, media, Guantanamo Base residents who are able to sit in when seats are available, and victims and victims’ families (VFMs) (except when VFMs choose to close a curtain that separates the VFM section of the gallery from others in the gallery).

At Ft. Meade, she could only see what was broadcast from Cuba, through a courtroom camera that would point at the person currently speaking. When the judge spoke, a camera pointed at him and that was broadcast live. When the prosecutor spoke, a different camera pointed at him, and that was broadcast live. Cameras pointed at the defense counsel, the defendant, and the witnesses would come alive and broadcast when those people spoke.

When viewing proceedings at Ft. Meade, it is impossible get a clear sense of the scope of the proceedings, or the courtroom / gallery dynamics, as one can do when in they are observing live at Guantanamo.

At Ft. Meade, observers cannot witness any visual or oral reactions by VFMs, the defendant, or anyone else, unless a camera pointing towards them is activated. These cameras are only activated when an actual participant in the courtroom is speaking officially. The cameras would not necessarily point towards a defendant who was speaking out of turn, a VFM who might be reacting, or others on site who could clearly be heard / seen by any observer physically in the courtroom gallery.

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Fagundes & Edwards at the Ft. Meade Museum

At Ft. Meade, Judge Fagundes was met by Professor George Edwards, who is the founding faculty director of Indiana’s Guantanamo project.

 

Judge Fagundes and Professor Edwards viewed the hearings at Ft. Meade, while Mr. Boonjue viewed the hearings while in gallery in the back of the Guantanamo Bay Courtroom.

 Upcoming Indiana participants at Guantanamo Bay and Ft. Meade

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Mr. Brent Pierce

On Saturday, 18 March, Mr. Brent Pierce, an Indiana McKinney J.D. graduate, is scheduled to travel to Guantanamo Bay. He is likely to be on the ground there for a few minutes with Mr. Boonjue, who is due to return to Andrews on the plane that carries Mr. Pierce from Andrews.

 

Mr. Pierce is scheduled to monitor the case against the five alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon.  That case has five defendants, including Khalid Shaik Mohammad. These five defendants, like Mr. al Nashiri in the U.S.S. Cole case, face the death penalty.

On Monday the 20th, when Mr. Pierce is in the Guantanamo gallery for the 9/11 hearings, Professor Edwards is scheduled to be back at Ft. Meade with another Indiana McKinney LL.M. student, who will join in monitoring the 9/11 case via CCTV.

You can read Mr. Pierce’s initial blog post here.

Substance of the al Nashiri Hearings

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A Cole bombing news article schematic. This schematic was not proffered as evidence. Photos of the ship were proffered.

The testimony on the Monday morning that Professor Edwards and Judge Fagundes were at Ft. Meade (and Mr. Boonjue was in the Guantanamo courtroom gallery) focused on pre-admitting into evidence items that the FBI recovered from the U.S.S. Cole in the days after the ship was attacked. These items included photographs of the ship, harbor where the ship was attacked, the road leading to the harbor, and the beach front where debris from the attack was washed ashore. Among the debris on the shore depicted in the photographic evidence was an uninflated Cole lifeboat and a Cole baseball cap. Also

 

A baseball cap like the one in the photograph the prosecution entered as evidence in the case against al Nashiri. A similar cap was found on the beach near the USS Cole bomb site.

admitted into evidence were fiberglass fragments that are alleged to be part of the suicide boat that attacked the Cole, debris found on Cole’s deck following the bombing, photographs of the gaping hole in the side of the Cole where the attack boat hit, and photographs of devastation inside the attacked ship.

At Ft. Meade and in the Guantanamo Gallery, observers could see some of the exhibits, including those that were projected onto the screen by a device like an overhead projector.  When exhibits were presented, at Guantanamo, observers could see and hear reactions / non-reactions by the defendant, VFMs, media, other observers, and others in the courtroom. At Ft. Meade, observers could see and hear only what came through the television monitor / speakers.

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Khalid Shaik Mohammed

Substance of the upcoming 9/11 hearings

It is unclear what will be on the agenda for the 9/11 hearings. The military judge in that case has released a docketing order, and participants know the list of pre-trial motions scheduled. But experience has demonstrated that not all motions on the order are necessarily heard during a hearing week, and at times matters not listed on the order are raised.

Periodic Review Hearings (PRB)

On Tuesday, 21 March 2017, Professor Edwards, Judge Fagundes, and another LL.M. student are scheduled to travel to the Pentagon to monitor the PRB hearing of Saifullah Paracha, from Pakistan, who at 69 years of age is the oldest detainee currently being held at Guantanamo Bay. He is alleged to have associated with members of al Qaida.

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Mr. Saifullah Paracha

PRBs and military commissions differ.

 

Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.

PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.

 

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Mr. al Darbi

9/11 Hearings for the last week of March 2017; al Darbi hearings for the first week of April.

 

During the final week of March, Professor Edwards is scheduled to travel to Guantanamo Bay for the 2nd week of hearings in the 9/11 case. Mr. Brent Pierce and Professor Edwards will likely meet briefly at the Guantanamo Bay airport, to pass the baton for the final week of March hearings.

Currently, hearings are scheduled at Guantanamo Bay for the first week of April in the case of Mr. al Darbi, who is alleged to have conspired with Mr. al Nashiri in planning a failed attack on the U.S.S. Sullivan the year before the U.S.S. Cole bombing. Professor Edwards is scheduled to return to Guantanamo Bay for this hearings. Rumor has it that the April al Darbi hearings will be cancelled. Another round of al Darbi hearings is scheduled for May 2017.

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Ms. Johanna Leblanc

Military commission hearings in the case against Mr. Hadi al Iraqi (a/k/a/ Nashwan al Tamir), an alleged high level member of al Qaida Iraq and liaison with the Taliban, scheduled for earlier in March 2017, were cancelled. The Indiana McKinney monitor who was scheduled to travel to Guantanamo Bay for the Hadi hearings — Ms. Johanna Leblanc — will be scheduled for a subsequent monitoring mission. Ms. Leblanc’s initial blog post on her cancelled Hadi al iraqi hearing mission can be found on www.GitmoObserver.com  here.

 

Conclusion

Though each Indiana monitor has his / her personal perspective and opinions, Indiana monitors act independently and objectively in researching and drafting our Guantanamo Bay Fair Trial Manual and other materials that examine rights and interests of Guantanamo Bay stakeholders. The materials that Indiana has prepared are being used by many who have an interest in what happens (or what does not happen) at Guantanamo Bay. Though persons traveling to Guantanamo may have a particular interest in our Know Before You Go to Guantanamo Bay Guide, there is strong interest in our substantive publications as well.

Indiana monitors contribute to the transparency that the Pentagon has stated that it seeks with the military commissions. Indiana monitors also benefit, whether they travel to Ft. Meade, to Guantanamo Bay, or both.

If you are an Indiana McKinney affiliate – student, faculty, staff or graduate – please check our law school web page here for information on how you might participation in our Guantanamo project.

Anyone interested in our work can check our blog / website / resource database at www.GitmoObserver.com.

George Edwards

Founding Faculty Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

I’m Scheduled To Fly To Guantanamo Bay Today

Showtime – Andrews Air Force Base to Guantanamo Bay

I am scheduled to travel to Guantanamo Bay today to monitor hearings in the case of al Nashiri, who is the alleged mastermind of the 2000 U.S.S. Cole bombing off the coast of Yemen that killed and wounded dozens of U.S. sailors. I am representing the Military Commission Observation Project of Indiana University McKinney School of Law, where I am a student. I am looking forward to carrying out my observer / monitor responsibilities, which include to attend, observe, analyze, critique and report on the military commissions that have charged several men with perpetrating war crimes.

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Arrival at Andrews Air Force Base

Most of the military commission flights to Guantanamo Bay depart from Andrews Air Force Base (AAFB).

Last night I stayed at a nearby Holiday Inn, and took a (taxi?) to the Andrews Visitor Center at 7:00 AM, where I met two other NGO representatives — Carol and Michelle – who were scheduled to join me on the trip to Guantanamo.

A government representative (Tony) picked us up around 7:30 AM and drove us to the Andrews terminal, where we met the rest of the NGO reps.

After we passed through security and I obtained my boarding pass, I handed all the NGO reps who were present a copy of the Know Before You Go To Guantanamo guide and the Guantanamo Bay Fair Trial Manual excerpts. These documents were produced by the Indiana McKinney Military Commission Observation Project (Gitmo Observer). I received many thanks for providing such helpful documents.

While waiting to board, we saw Vice President Mike Pence board what looked like Air Force One, but was actually Air Force Two. There were several security personnel around him, including secret service agents and military. An hour after Pence departed, we boarded a bus that took us to the commercial plane (Atlas Air) bound for Guantanamo.

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I am now on the plane about an hour away from arrival. I am looking forward for what’s in store to come.

 

Tex Boonjue, J.D. Candidate

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

I’m Flying to Guantanamo Bay, Cuba tomorrow for U.S. Military Commission Hearings

I’m Flying to Guantanamo Bay, Cuba tomorrow for U.S. Military Commission Hearings

When I enrolled at Indiana University McKinney School of Law almost 3 years ago, I learned that the school had a program that focused on Guantanamo Bay, Cuba. After my first year, I participated in that program – the Military Commissions Observation Project (MCOP) — and I observed a pre-trial hearing in the case against Hadi al Iraqi, who is an alleged high level al Qaeda member who and liaison with the Taliban. I viewed the Hadi hearing at the Ft. Meade, Maryland army base via secure satellite transmission live from Guantanamo Bay. This was my first time observing a military commission, not to mention a Guantanamo Bay hearing of such a magnitude. Also I did legal research for the Guantanamo Bay Fair Trial Manual, which observers and others are using to help them determine whether rights are afforded to individuals and groups related to Guantanamo.

Tomorrow (Saturday, 11 March 2017) I am scheduled to fly from Andrews Air Force Base to Guantanamo Bay, where I will be monitoring the military commission case against al Nashiri, who is alleged to have masterminded the 2000 suicide bombing of the U.S.S. Cole, off the coast of Yemen, killing 17 U.S. sailors and wounding dozens more. Rather than view the hearings via CCTV at a military base in Maryland, I am expecting to view the hearings while sitting in the galley of the actual courtroom at Guantanamo Bay. I am representing the Indiana McKinney School of Law’s MCOP (also known as the Gitmo Observer). Hearings are set to begin Monday, 13 March 2017.

Travel to DC – Friday, 10 March 2017

10:00 – 11:30:  I woke up today feeling slightly better than I felt yesterday. I had hoped to fully recover from whatever it is that I have before departing for DC and beginning my mission to Guantanamo Bay. Nonetheless, I am still fully functional and very excited for what’s set to come these next 8 days.

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12:00 – 16:00: The hour and a half flight from Indianapolis to DC was as smooth as ever. Passing through security was a breeze. I won the armrest war. My bags were one of the first few down the conveyor belt.

16:00 – 18:30: After learning that my Verizon phone would not work in Guantanamo Bay and that I would need my own SIM card to communicate with the MCOP director while there, I searched for the nearest T-Mobile store on my phone and hopped onto the DC metro green line headed towards Gallery Place Station (in an area known as Chinatown). I ran into some slight issues at the T-Mobile store when trying to obtain a pre-paid SIM card. The employee must have been new because he said that the $50, 2GB talk/text, pre-paid SIM card that I had sought use in Guantanamo Bay did not exist. However, after some back and forth, a few calls to customer service, and a brief chat with his coworkers, we discovered that there was indeed a $50 pre-paid SIM card available for purchase ($66 total, $10 for the SIM + Tax). Our Project Director, Professor George Edwards, published in Know Before You Go To Guantanamo Bay that T-Mobile began operating at Guantanamo last summer. In one of my blog posts from Guantanamo I will report on how well the T-Mobile sim card works.

19:30 – 22:00: After obtaining the SIM card, I hopped back onto the green line and headed towards Branch Avenue. I am comfortably familiar with this line as I had taken it practically every day during my 2015 summer law internship with the Navy JAG Corp, when I worked at the Washington Navy Yard.

I got to my hotel – the Holiday Inn near Andrews Air Force Base – checked into my room, and unloaded my luggage. I then read additional parts of the Know Before You Go To Guantanamo guide while I had dinner (which I had brought with me from Indianapolis). Afterwards, I introduced myself via email to the 9 other NGO representatives who will be observing the hearings, and attached a copy of the Guantanamo Bay Fair Trial Manual, and the Know Before You Go To Guantanamo guide so that they could reference these materials before, during and after the hearings.

I learned that one of the observers scheduled to attend will not join us on the flight from Andrews tomorrow, which means that there will be at most 8 other NGO representatives will join me at the hearings.

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Reading the “Know Before You Go” Guide in my hotel room the night before departure

22:00 – 22:30.  I believe this trip to Guantanamo Bay will be a unique, informative and rewarding experience. I anticipate having much more to write about once set foot on the Guantanamo Bay Naval Station.

Tex Boonjue, J.D. Candidate

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

I’m heading back to Guantanamo Bay to Observe hearings

I am at Andrews Air Force Base now waiting to board a military flight to take me to Guantanamo Bay, Cuba to monitor U.S. Military Commissions in the case against al Nashiri, who is alleged to have masterminded the 2000 suicide bombing of the U.S.S. Cole off the coast of Yemen killing 17 U.S. sailors and wounding dozens more.

For the second time, I was nominated to represent the MCOP – the Military Commission Observation Project of the Indiana University McKinney School of Law’s Program in International Human Rights Law.

My first trip to Guantanamo Bay was in October of 2016 and my experience can be found in this www.GitmoObserver.com blog post, clicking here.  There was also a 4-page article by Larissa Roso published in the Brazilian newspaper Zero Hora (see photo in this blog).

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The defendants

As mentioned, this time I will attend a pre-trial hearing in the case against al Nashiri, who faces the death penalty for his alleged participation in the suicide attack against the USS Cole .

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USS Cole being towed

From public sources I have gathered the following information about al Nashiri:

Abd al-Rahim al-Nashiri. He was arrested in Dubai in 2002, was held for 4 years in CIA black sites and was taken to Guantanamo Bay Detention Camp. He was first charged at Guantanamo in 2008. The charges were dropped in February 2009 and reinstated in 2011, and now, six years later, the proceeding remains at the pre-trial stage.

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On my first visit, I attended the pre-trial hearings in the case against Khalid Shaik Mohammad and 4 other allged masterminds of the 9/11 attack on the World Trade Center and the Pentagon. It will be interesting to compare the 9/11 hearings to what I expect to witness at the al Nashiri hearings.

Why go to Guantanamo again?

I am a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, and my second trip to Guantanamo Bay is part of my in-field research about transparency under the Military Commissions. My research is being supervised by , Professor George Edwards, who is Founding Director of  Indiana’s Military  Commission Observation Project.

I remember, as a first-islander (this is how people in Guantanamo Bay call those who are on the island for the first time), I felt like not even blinking my eyes, afraid of missing any detail from which I could learn something.

This time, of course, it will not be different. My eyes will be wide open. My initial focus was to fulfill goals of our MCOP project – to attend, observe, analyze, critique and report on the Military Commissions. I did that on my first visit, and I will do that on this visit as well.

But this time  my attention will be focused specifically on transparency.

The whole process of my involvement, since I was nominated to be an observer, represents a rich source for research on Military Commission transparency for NGOs. The several steps to comply with the requirements presented by the Pentagon, the limited information NGOs can access, the location of the hearings, the restrictions and overwhelming rules while in the island, the fact that rules seem constantly to change for NGOs (with some rules being different now than they were when I went to Guantanamo in October), the limited areas at Guantanamo where NGOs can circulate, visit or take pictures – those are just a few examples of things that I am thinking about in the context of transparency. Of course, the cases before the Military Commissions are related to national security, and deserve special care. This research will try to understand what international and U.S. domestic law require regarding transparency of the U.S. Military Commissions for NGOs, recognizing that a balance must take into account national security as well as NGO exposure and access to information. Do the Military Commissions comply with international and U.S. law regarding transparency when it comes to NGO observers?

At Andrews Air Force Base

I am now at the Joint Base Andrews, and the sun is about to rise on this chilly Sunday. Our chartered flight – a Delta Airlines – is scheduled to depart at 8am. The NGOs were scheduled to arrive arrive at Andrews at 5 a.m., 3 hours in advance, to check-in for the flight.

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At this time there are 10 NGOs representatives from different organizations scheduled to travel with us. On my first trip, we had 12 NGOs observers. Each authorized organization can indicate and send only one representative at the time, even if there are places available. So, if we in fact only have 10, then there are 3 or 4 empty seats that could have been filled by NGO representatives. I know that there are many observers from Indiana and other organizations available to fill those seats, and I wonder why those spots are empty.

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NGOs waiting at the AMC’s Children Area, also called Family Lounge.

The flight time is about 3 hours 15 minutes, and we are expected to arrive at Guantanamo Bay around lunch time.

I am looking forward to gathering as much information as possible on this trip, and I hope to learn from as many participants as possible, including other NGOs observers, media, the defense team, the prosecution, escorts, etc.

Soon I will be sharing more information here on this blog. Also I will be tweeting @alinedoral.

Stay tuned.

Aline Fagundes, Master of Laws (LL.M.) student

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

Program in International Human Rights Law

Indiana University McKinney School of Law 

Updated Guantanamo Bay Fair Trial Manual & “Know Before You Go to Guantanamo” Guide

The Gitmo Observer has updated 4 draft documents useful for anyone interested in the Guantanamo Bay, Cuba U.S. Military Commissions, and for anyone traveling to Guantanamo Bay for hearings or other purposes.

Each document is in a preliminary draft stage, with further research, writing and editing underway. Nevertheless, the Gitmo Observer hopes that these materials are helpful.

The documents, which are available for free download below, are:

guantanamo-bay-fair-trial-manual-vol-i-26-february-2017-first-page-pink(1)    Guantanamo Bay Fair Trial Manual (Volume I) – (pink cover – 344 pages) (27 February 2017)

Lists the international and domestic law applied at the Guantanamo military commissions, explains the law, and identifies how the law affects Guantanamo stakeholders, such as the defense, prosecution, victims and victims’ families, witnesses, U.S. military who guard the detainees, the media, and other stakeholders. Explores rights and interests of all stakeholders, not just rights of the defense. 

Contains a useful Glossary for military and legal terms, and for items associated with Guantanamo Bay.

 

guantanamo-bay-fair-trial-manual-vol-ii-26-february-2017-first-page-blue(2)    Appendices to Guantanamo Bay Fair Trial Manual (Volume II) (blue cover – 268 pages) (27 February 2017)

Contains important law documents related to the proceedings, such as the charge sheets (indictments) of the 3 major pending cases, and excerpts from binding human rights and humanitarian law treaties (e.g., Geneva Conventions, Convention Against Torture, Civil & Political Rights Covenant, Race Convention),  the U.S. Constitution, U.S. Supreme Court cases, the Military Commissions Act, Presidential Executive Orders,  and military commission jurisprudence.

 

 

 

(3)    Guantanamo Bay Fair Trial Manual Excerpts (yellow cover — 102 pages) (27 February 2017)guantanamo-bay-manual-excerpts-27-february-2017-yellow-front-cover

A selection of important sections of the Full Guantanamo Bay Fair Trial ManualProvides background information on the military commissions, descriptions of the 3 active Guantanamo Bay hearings, list of previously convicted detainees, the status of current detainees, a schematic of the courtroom (identifying principal courtroom actors), and a Glossary of military and legal terms, and for items associated with Guantanamo Bay.

 

 

 

 

(4)    Know Before You Go To Guantanamo Bay — Tips & Suggestions (green cover — 76 know-before-u-go-to-gitmo-29-dec-2016-front-coverpages) (29 December 2016)

A guide for anyone traveling to Guantanamo Bay for military commission hearings, client visits, media trips, or other purposes. Contains substantial information geared towards non-governmental organization representatives traveling to observe Guantanamo hearings, but much of the information is useful for any traveler. Contains information about lodging, Guantanamo Bay restaurants, evening / weekend adult entertainment (bars), water activities (beaches, boating, swimming),  outdoor activities (hiking, golf, tennis, etc), other sports (bowling, pool), movie theaters, gyms, religious activities (services, fellowships), and more.

 

 

If you have any comments or suggestions for our four documents, please feel free to let us know at GitmoObserver@yahoo.com.

We have received very positive, constructive feedback in the past, and we look forward to further input from you!

Yemeni Guantanamo Detainee to Ask Pentagon to Release Him

 

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al Sharqawi to ask Pentagon on Tuesday to release him from Guantanamo Bay after 15 years in custody 

On Tuesday, 28 February 2017, Abdu Ali al Haji Sharqawi, who is a Guantanamo Bay detainee from Yemen, will appear at a hearing at which he will likely tell U.S. officials that he is not a threat to U.S. national security and that he should be resettled in a 3rd country.

Sharqawi, who is 43 years of age, was picked up in Karachi, Pakistan in February 2002, one month after the first detainees were brought to Guantanamo Bay. He arrived in Guantanamo Bay in 2004, after 3 years in custody under the direction of the U.S., first in Jordan then Afghanistan. It is alleged that he was tortured in Jordan and Afghanistan.

On Tuesday he will argue for his freedom from the incarceration he has endured for almost a third of his life.

The hearing – a Periodic Review Board – PRB

This hearing at which Sharqawi will argue is called a Periodic Review Board (PRB),  and will be conducted pursuant to a 7 March 2011 Executive Order (number 13567) which has required most detainees to have a “periodic review” of their detention status.

The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.”   Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.

Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.

The Board itself consists of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence.

pentagonThe hearing will be held at Guantanamo Bay, but will be transmitted by CCTV to secure locations to permit review by participants and cleared persons who are not physically in the Guantanamo Bay hearing room. I plan to view from a secure room in the Pentagon.

Sharqawi’s PRB hearings

The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States.

In making this determination, the Board considered that the detainee developed ties to senior al-Qaida leaders such as Usama Bin Laden and Khalid Shaykh Muhammad, associated with al-Qaida plotters and operatives including members of the USS Cole bombing and some of the 9111 hijackers, and probably provided logistical and financial support for al-Qaida operations to include facilitating the travel of fighters from Yemen. Further, the Board noted that the detainee’s statements and behavior while in detention indicate that he remains committed to engaging in violent acts against the United States, the difficulty in assessing his current mindset and credibility due to his decision to not participate in the hearing, and insufficient information presented to the Board regarding his plans if transferred and the support that he would have if transferred.

The Board appreciates that the detainee has engaged with his representatives to participate in the process. The Board looks forward to reviewing the detainee’s file in six months and encourages the detainee to fully participate in any future review.

Sharqawi was entitled to appear at his initial PRB last year and to speak on his own behalf. However, he did not appear, and the Board posted this notice on the PRB secretariat’s website:

“THE DETAINEE CHOSE NOT TO APPEAR BEFORE THE BOARD. THEREFORE, THE DETAINEE SESSION WAS NOT REQUIRED.”

  • File Review. Sharqawi had a PRB file review on 15 November 2016, and on 14 April 2016 the Board concluded:

MEMORANDUM FOR THE RECORD

SUBJECT: Periodic Review Board File Review  Sharqawi Abd u Ali al-Hajj (YM-1457)

On I November 2016, the PRB conducted a file review for Sharqawi Abd u Ali al-Hajj (YM- 1457) in accordance with Executive Order (E.O.) 13567,” Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.”  The PRB previously conducted a full review of the detainee and on 14 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States. After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted i n accordance with section 3(c) of E.O. 13567. [emphasis added]

  • Full Review. It is Sharqawi’s full review that is scheduled for this Tuesday. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will send him to a 3rd country – outside the U.S. but not Yemen – for resettlement. The U.S. is not now sending detainees back to Yemen for security reasons.

What will Sharqawi’s PRB be like?

I suspect that other representatives of Non-Governmental Organizations (NGOs) (including 2 students from Indiana University McKinney School of Law) will be present with me at the Pentagon on Tuesday, and possibly some media. This is the second PRB to be held under the Trump Administration, and the first of these, two weeks ago, attracted more NGOs and media than most earlier PRBs. The NGOs and media representatives will view from a secure room at the Pentagon.

Others present for the hearing will include members of the “Board” itself that conducts the PRBs. Presumably each of those representatives will watch remotely in his or her office in the DC area. Also likely to be present for the hearing are the Legal Advisor to the Board; the Case Administrator; a Hearing Clerk; and a Security Officer, though it is not clear where these individuals would be located at Guantanamo Bay or elsewhere.

 Statements to be made at the PRB

The initial part of the PRB will be unclassified, and that is the portion of the PRB I will observe. During that portion of the PRB, I will be sitting in a secure Pentagon viewing room watching the hearing live, which will be happening at Guantanamo Bay.

The Pentagon posted 3 statements to be read at Tuesday’s PRB’s public session:

  1. an Unclassified Summary prepared by the Government;
  2. a Statement by Sharqawi’s private outside lawyer; and
  3. a Statement by Sharqawi’s U.S. government-appointed non-lawyer “personal representative. The bodies of these three short statements are reproduced below.

The Unclassified Summary prepared by the U.S. Government to present at the PRB states, in full:

Sharqawi Abdu Ali al-Hajj (YM-1457), a.k.a. Riyadh, is a career jihadist who acted as a prominent financial and travel facilitator for al -Qa’ida and was closely tied to several senior al -Qa’ida members, including Usama Bin Ladin and Khalid Shaykh Muhammad (KU-10024), although he has repeatedly denied being an al-Qa’ida member. During his detention at Guantanamo, Riyadh has been semicompliant with the guard force and, until late 2004, provided his interrogators with a wealth of information on his extremist activities and associations. Riyadh remains a steadfast supporter of extremist causes and groups, most likely continues to view America as his enemy, and has praised recent acts of terrorism. There are no indications that Riyadh’s Yemen-based family members have engaged in extremist activities, although connections to extremist networks could offer Riyadh a potential path to reengagement in Yemen.

The private counsel for submitted a statement that provides, in full:

Members of the Periodic Review Board:

Good morning.  My name is Pardiss Kebriaei, and I am Private Counsel for Sharqawi Al Hajj.

Thank you for the opportunity for Mr. Al Haij’s subsequent full review. We are encouraged that the Periodic Review Board has been continuing its work.  The board’s purpose of whether continued detention is still necessary is vital for men like Mr. Al Hajj, who has been held in U.S. custody for over 15 years.

I am currently a Senior Attorney at the Center for Constitutional Rights, which has represented Guantanamo detainees since 2002, including dozens of men whom the United States, under the Bush and Obama administrations, has successfully repatriated or resettled.  I have represented detainees for nearly ten years.  I have represented Mr. Al Hajj since last year.

I’ll make a few brief points about the past, present and future with respect to Mr. Al Hajj.

With respect to the past: In Mr. Al Hajj’s habeas proceedings, the government’s case-in-chief relied on statements Mr. Al Hajj made during several interrogations in Bagram and Guantanamo in 2004.  To the extent the board is considering any of this information as part of this review, it should know that then-Chief Judge Royce Lamberth of the D.C. District Court struck all of these statements as unreliable; he found that they were tainted by prior physical and psychological coercion Mr. Al Hajj experienced in prisons in Jordan and Kabul after his capture.  Mr. Al Hajj is here to answer your questions about his present views and conduct, and his future intentions, but this point about the past bears noting.

With respect to the present: Mr. Al Hajj is 43 years old today.  The impulses and views that led to his detention were by a young man in his 20s.  The government’s unclassified profile of Mr. Al Hajj states that he ”most likely continues to view America as his enemy.” That description is outdated.  Mr. Al Hajj’s detention has necessarily entailed interactions with Americans of different stripes over the years that have complicated and changed his view. Blanket statements no longer apply.

Moreover, Mr. Al Hajj’s health may be seriously compromised.  He reports bouts of jaundice and weakness which, according to independent physicians with whom his counsel have consulted, may indicate a potentially grave liver condition that should be investigated.  A medical expert opinion is included in Mr. Al Hajj’s detainee submission.  Far from having the desire or energy for any involvement in conflict, the hardship of the past 15 years makes him want to tum away.

Finally, with respect to the future: Mr. Al Hajj would accept resettlement in any safe country the government believes appropriate.  His family stands ready and able to provide financial and moral support for his reintegration wherever that may be, as they have stated in the detainee submission.  My organization, which has worked closely with envoys from the Defense and State Departments on detainee transfers in prior years, also stands ready to assist.

Sharqawi’s “personal representative”, who is a non-lawyer appointed by the U.S. military, submitted a statement that provides, in full:

Members of the board, thank for allowing Mr. Sharqawi Abdu Ali Al-Hajj to have a second chance at hearing his case. I am his Personal Representative. He made the decision to not attend his first board because he did not feel confident sitting before the board without a Private Counsel. At that time, he still feared that the Board was a legal proceeding versus an administrative board and therefore, he did not want to attend without having his lawyer present.

But, since that time, he has attended every meeting with me and been very cordial. He is easy to get along with and is obviously a very intelligent person, who communicates well. He has worked well with both a female Personal Representative and Private Counsel.

Since Sharqawi has moved camps, he has worked to build his relationships with fellow detainees. During our conversations, he has indicated that since he has been here, he has learned to appreciate other people’s cultures which he had not before. He is actively participating in classes to prepare for life after Guantanamo and he speaks English quite well. His Private Counsel has been in contact with his family to confirm that they will support him after his departure from GTMO. He is open to repatriation anywhere and feels he is capable of working in other cultures since he has learned to work with other detainees in GTMO.

I appreciate your consideration of his case today as he answers your questions so you can decide if he still poses a threat to the U.S.

 Conclusion

So far as we can tell, Sharqawi’s PRB is still scheduled to go forward on Tuesday, 28 February 2017. That is, the Pentagon has not notified us that it will not go forward. If it does go forward, it seems likely that Sharqawi will attend, which he did not do for his initial PRB last year.

Please watch this space for an update post-PRB.

George Edwards

Founder, Periodic Review Board (PRB) Project

Guantanamo Bay, Cuba U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law (PIHRL)

Indiana University McKinney School of Law

_______

 

My Monitoring Trip to Guantanamo Bay, Cuba Cancelled

cancelledThe Pentagon approved my nomination to travel to Guantanamo Bay, Cuba to monitor the case against Hadi al Iraqi, and alleged high level member of al Qaeda who was purportedly a liaison with the Taliban. As a representative of the Indiana University McKinney School of Law’s Military Commission Observation Project, my job was to attend, observe, analyze, critique and report on Hadi al Iraqi’s hearings. My hearing dates were scheduled for 26 February to 3 March 2017.

I recently received an e-mail from Professor George Edwards (founder of IU McKinney’s Guantanamo Project) indicating that the Pentagon had cancelled Hadi al Iraqi’s hearings for that week. I felt somewhat disappointed because I was really looking forward to attending the hearing and further contributing to IU McKinney’s Guantanamo Bay work.

Prior to the cancellation, I could not stop talking about it with friends and former classmates. I even called my younger sister and she had no idea why I was interested in attending such hearing. I talked her ears off about who the defendants were and the crimes they had been accused of. I tried to share with her about international crimes, criminal justice, the rule of law, and the importance of transparency in proceedings such as this. I understand that those selected to monitor such proceedings play a very important role in human rights for all stakeholders in these military commission proceedings.

I remain hopeful that I will be able to monitor hearings of other defendants in March, either at Ft. Meade or Guantanamo Bay.

Johanna Leblanc, J.D., Indiana University McKinney School of Law

Observer, Guantanamo Bay, Cuba, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

 

 

 

Nominated to Travel to Guantanamo Bay, Cuba to Monitor Hearings Against Hadi al Iraqi

joanna-leblanc-graduation-photoIn 2016, I received my doctor of jurisprudence (J.D.) from Indiana University McKinney School of Law, where I studied international human rights law and was active in many human rights and civil rights projects, in the U.S. and overseas.

Now, I am part of the law school’s Military Commission Observation Project (MCOP), which was founded by Professor George Edwards. The MCOP, among other things, sends students, faculty, staff and graduates to Guantanamo Bay, Cuba to serve as observers or monitors for military commissions that were created to try alleged perpetrators of war crimes.

As a monitor, it is my job to (a) attend; (b) observe; (c) analyze; (d) critique; and (e) report on military commission war crimes hearings at Guantanamo Bay.

I have many reasons for wanting to travel to Guantanamo Bay for live hearings, or to travel to Ft. Meade, Maryland where the hearings are simultaneously broadcast via CCTV from Guantanamo to a secure facility on the Ft. Meade army base. I will talk more about those reasons in my next blog post.

For now, I am focusing on the hearings I am scheduled to attend on 26 February to 3 March 2 017 – against a man named Hadi al Iraqi (or Nashwan al Tamir).

hadi-al-iraqi

Hadi al Iraqi

Hadi al Iraqi is a 51- or 52-year-old Iraqi citizen. He was taken into custody in late 2006, spent some time in Central Intelligence Agency custody, and was transferred to Guantanamo in April of 2007. He is considered a high-valued detainees (HVD), and is accused of, among other things, cross-border attacks against US and coalition troops from 2002 to 2004.

More on my background

I was born in Port-au-Prince, Haiti. I moved to the United States at the age of ten (10). In addition to my J.D. from IU McKinney, I also hold a master’s degree in public administration from Florida A&M University (FAMU) and a bachelor’s degree in political science from Bethune Cookman University.

During law school, I was a part of the Program in International Human Rights Law (PIHRL) which was founded by Professor George Edwards.  Through this program I was able to travel to South East Asia, Southern Africa, and Western Africa where I worked on access to legal justice, child marriage/women’s rights, and electoral reforms. With my exposure through our world renowned human rights program at IU-McKinney, I further developed an interest in international laws and politics. In particular, I am interested in how international law and politics help shape domestic and international policies regarding immigration, trade, and other aspects of relationships between countries.

I look forward to contributing to the work of the MCOP, specifically the Guantanamo Bay Fair Trial Manual that the project has been working on.

Johanna Leblanc, J.D., Indiana University McKinney School of Law

Observer, Guantanamo Bay, Cuba, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Turned Away from Guantanamo Bay Hearing Held at Pentagon

I was nominated to travel to the Pentagon to monitor a Guantanamo Bay Periodic Review Board hearing for a detainee who was asking the U.S. to release him from Guantanamo.

The PRB – Periodic Review Board – is a discretionary administrative procedure held in Guantanamo Bay and transmitted via a secure link to the Pentagon. PRBs analyze whether the detainee will remain in Guantanamo, will be transferred to a third country to resettlement, or will be repatriated to its original country. PRBs do not address the legality of any individual’s detention, but attempt to assess whether the detainee is a threat to the national security of the United States.

podium

I was nominated to monitor this PRB by the Periodic Review Board Project of Indiana University McKinney School of Law’s Program in International Human Rights Law. This is similar to the way I was nominated to monitor military commission hearings at Guantanamo Bay, Cuba, where I traveled last year and posted about on this blog here, and on twitter.

I understand that the Pentagon is interested in Guantanamo Bay military commission hearings and PRBs being transparent, so they permit observers / monitors to be present.

pentagon

The Pentagon

I flew from Indianapolis to Washington, D.C. on 8 February 2017, in anticipation of an early trip to the Pentagon the next day for the PRB. I stayed at a hotel near the Pentagon.

On the morning of 9 February  2017, at about 7:30, a hotel van dropped me off at the Pentagon, where I went to the Visitor Center. There I walked through a maze as I entered the Pentagon, and went through a security system that seemed more intricate than at an airport. After, I entered the Visitor Center waiting room, where I saw representatives from other non-governmental organizations and members of the press who were also waiting to be escorted to the PRB.

When the escorts came to take everyone to the PRB room, I learned that my name was not on the list. I was not among the cleared NGOs! It was noted that they apparently did not receive my form within the deadline. I immediately called the McKinney director of the program who also immediately forwarded to me e-mail copies of messages to the Pentagon requesting my clearance. We had about 10 minutes to try to solve the issue. Unfortunately, it was not resolved and I could not benefit from the Pentagon’s last-minute clearance procedure even though I could show my completed, signed, required PRB Ground Rules form. I was not allowed to attend the PRB that day.

So, I was left behind.

not-cleared

 

It was very disappointing. The sole purpose of my flight to DC – for fewer than 24 hours – was to attend and monitor the PRB on behalf of our law school’s project. I flew from Indianapolis to DC one evening, was at the Pentagon early the next morning, and was due to fly back to Indianapolis in the afternoon of the same day.

Well, what is done, is done.

And, my trip was not wasted!

Two weeks before, when I knew I was going to be in the Pentagon, I requested a tour. The tours can be requested at this link at least 14 days in advance and not more than 90 days away from of the visit.

tour

My escort during the tour. To be admitted in this position, he had to memorize, word by word, 33 pages of the information presented during the visit.

The guided Pentagon visit is very basic but interesting. We passed through areas that did not look like what I imagined the Pentagon would look like at all. For instance, we started in a theater with a brief explanation of the rules. No photographs were allowed during the tour, of course. After that, we crossed an area similar a mall, with all sorts of storefronts like for candy, clothes, flowers, ceramics, shoe repair, leather accessories, candles, a bank, Starbucks and fast food such as McDonald’s, Subway, and Burger King. Everything to serve the population of 26,000 people. The visit also included the Pentagon Memorial Quilts. After the 9-11 attack in 2001, people from all over the country sent quilts to pay tribute to the victims.

Why quilts? Jeannie Ammerman led the September 11 Quilt Memorial Project, an idea given by Drunell Levinson, an eyewitness who felt a strong desire to do something helpful but was uncertain how to proceed. As a fabric artist and quilter, she was not qualified to help with rescue and recovery efforts, and blood donation centers were already crowded with volunteers. Thus, she came up with the idea of gathering quilts, as a symbol of a communal activity.

 

<> on June 28, 2011 in Arlington, Virginia.

This photo is from the internet.We are not allowed to take pictures or use any device during the Pentagon tour.

After my Pentagon tour and my lunch, the hotel shuttle too me back to the hotel to pick up my luggage and then to the airport for my return flight to Indianapolis. The shuttle driver shared with me his story of life. Living in the U.S. for ten years already, originally from Ethiopia, after two degrees (one from Nairobi), he is pursuing a Ph.D. in Business and Economics, with a United Nations Scholarship, as a political exile. Nice story to end a day of frustration.

What’s next?

Another PRB is scheduled for a different detainee on 28 February 2017. When asked, I declined a nomination to attend since I have a conflict and cannot attend. I hope to be nominated for a future PRB, as I would very much like to gain the experience of this different type of Guantanamo Bay proceeding. PRBs involve detainees who are not charged with crimes, and who are asking to be released. The PRB non-criminal proceedings are different from U.S. Military Commission proceedings, which are criminal proceedings, and the question is whether the detainee is guilty of a crime. In PRBs, there is no question about criminality, just about whether the person in question is a national security threat.

Aside from PRBs, I am now scheduled to return to Guantanamo Bay, Cuba to monitor regular U.S. Military Commission hearings in the criminal case against al Nashiri from 4 to 11 March 2017, and am scheduled to travel to Ft. Meade, Maryland on Monday, 13 March 2017 for hearings in that same case – simultaneously broadcast from the same courtroom I will have monitored from live the preceding week. Mr. al Nashiri is the alleged mastermind of the 2000 suicide bomb attack on the U.S.S. Cole off the coast of Yemen that killed and wounded dozens of U.S. sailors.

 

Aline Fagundes (LL.M. Candidate, ’17)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

From Indianapolis City Employee to Guantanamo Bay Observer — Nomination, Confirmation, Preparation

bp-picFrom my perch as an Indianapolis city employee working in economic development, I don’t often receive an email inquiring about the seriousness of my interest in traveling to Guantanamo Bay, Cuba.

But that’s exactly what happened on January 31, 2017.

Indiana University McKinney School of Law Professor George Edwards, an International Human Rights Law Professor of mine and who was also my third-year law school research paper faculty supervisor, emailed me with a simple question: “Are you available for a quick phone call?”

I was puzzled.  I had, years ago, inquired about the law school’s then new Guantanamo Bay Military Commissions Observation Project (MCOP), but after a few exchanges with Professor Edwards and other inquiries, I realized it was simply bad timing on my part.

That said, it turns out I had been in contact with Professor Edwards on an unrelated matter, and renewed my interest in traveling to Guantanamo Bay to monitor military commissions.  Professor Edwards and I discussed the project, and he impressed upon me the gravity of the undertaking.

Professor Edwards asked If I really want to travel to Guantanamo Bay to do the work; which includes lots of preparation, work once you’re there, and work once you return.

He reminded me of the importance of the work of our law school’s Program in International Human Rights Law generally, and about the importance of its Guantanamo Bay work which began more than a decade ago.

It was quite clear this wasn’t a passive trip to Cuba; this was to be taken very seriously and the hard work required of each individual would ideally result in substantive and value add contributions to the policies and procedures Professor Edwards and his partners have worked hard to create.

After a discussion with my spouse, I was officially committed.

Background and Experience

For some background, I was not deeply involved with human rights when I was a law student, and I am not a human rights attorney.  Since graduating from McKinney law school in 2010, I have worked in the private sector for a global aerospace company and in the nonprofit sector for a disabilities services organization.  I currently work for the City of Indianapolis managing real estate transactions and economic development projects and strategy.

In short, I did not think that I was an obvious candidate for a mission to Gitmo as part of a legal proceedings observation effort.  But, it is my hope that my outside viewpoint and fresh set of eyes can be beneficial and offer a different perspective as I observe and try to contribute to the understanding of existing guidelines and procedures.

Back to the Storyline

Once I told Professor Edwards I was committing to the assignment, it was time to better understand the process and the various entities involved.

The Indiana University McKinney School of Law Program in International Human Rights Law (PIHRL), under the leadership of Professor Edwards, established the Military Commission Observation Project (MCOP).  After the Pentagon Guantanamo Bay Convening Authority granted MCOP Non-Governmental Organization Status, affiliates of Indiana University McKinney became eligible to travel to Guantanamo Bay, Cuba to monitor U.S. military commissions which were established to try alleged perpetrators of war crimes. Specifically, as observers or monitors, our 5 principal responsibilities are to: (a) attend; (b) observe; (c) analyze; (d) critique; and (e) report on hearings of detainees at Gitmo.

My process began by submitting certain personal information for consideration by the MCOP Advisory Council.  Once approved for advancement by the Council, my name was then submitted to Pentagon as a nomination.  At this point, the Pentagon can confirm you or deny you.  Fortunately, on February 9, 2017, I was “CONFIRMED” by a Pentagon representative.

To be specific; from the Pentagon:

“You have been CONFIRMED to observe the March 18-25 9/11 Week ONE military commission in-person at Guantanamo Bay, Cuba. Currently, the flight schedule is as follows:

Departing from Joint Base Andrews to Naval Station Guantanamo Bay on 18 Mar (SAT) at 1000

Departing from Naval Station Guantanamo Bay back to Joint Base Andrews on 25 Mar (SAT) at 1000.”

I then had to fill out various forms and agreements. In some ways, this has been the most complicated part so far, since each of the documents is different, and each document must be completed following very specific guidelines. Professor Edwards sent my “completed” documents back to me numerous times for me to modify my original entries to comply with Pentagon requirements, and with requirements of the Indiana University administration including IU lawyers who review some of the forms before we observers are permitted to return them to the Pentagon. The templates that I was given to follow were helpful, but it was nevertheless still a challenge.

Finally, all the documents were reviewed by Indiana University officials (including the IU Treasurer) and by the MCOP, I sent all requisite information to the Pentagon in the hopes that they would grant me full clearance.

ksm-picWhat Hearings will I monitor?

There are three sets of hearings ongoing at Guantanamo Bay now. During the week of my scheduled monitoring (19 – 25 March 2017), hearings will be held in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. I remember where I was on September 11, 2001, and I cannot escape the impact it had on me. Pictured in this blog is Khalid Shaik Mohammed, the alleged mastermind himself, who was, among other things, waterboarded 183 times.

This is Actually Going to Happen?!?

img_7039-1

At this time my focus has turned to the nuts and bolts of traveling from Indianapolis to Cuba.  Easy right?  Yeah… I plan to fly to Washington, DC then snag a Lyft and drive to a hotel near Andrews Air Force Base in Maryland, which is around a thirty-minute trip.  I will stay overnight there, in anticipation of my morning flight from Andrews in a military airplane directly to Guantanamo Bay, Cuba.

While at Guantanamo Bay, among other duties, I plan to provide updates via this blog site.

I hope to offer unique insights contributions to the existing body of work relating to legal proceedings, policies, and guidelines. I see this as an occasion to provide transparency from an “on the ground” perspective.  Very few have had the chance to travel to Gitmo to monitor military commission proceedings; I intend to make the most of this opportunity, for the benefit of all concerned.

Duties and Responsibilities

One of the most important tasks of anyone traveling to Guantanamo Bay as part of the IU McKinney MCOP is to contribute to the Guantanamo Bay Fair Trial Manual.  You can find the Manual here: https://gitmoobserver.com/military-commission-observers-manual/

FT Manual

This Manual is the product of the hard work performed by Professor George Edwards and other student and legal partners who have been observing at Gitmo for years.  It provides many of the policies and procedures that govern the treatment of detainees and the trial and legal proceedings.  It is an objective and independent document that is used by observers from other institutions and others as they form their own judgments as to whether Guantanamo Bay stakeholders are being afforded all rights and interests they are owed.

I feel it an honor to be able to observe and contribute to this important document.

I am proud to be an Indiana McKinney School of Law alum, and thankful for the opportunity provided by the MCOP and the Program in International Human Rights Law.

Brent M. Pierce, J.D. ’10

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

Program in International Human Rights Law

Indiana University McKinney School of Law

My travel to Ft. Meade to Monitor Guantanamo Bay Hearings for al Nashiri

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I travelled to Ft. Meade, MD to monitor a US Military Commission in the case of Al Nashiri, as I was representing the Military Commission Observation Project, of the Program in International Human Rights Law. The following are a few charges brought by the government:  Murder in Violation of the Law of War and Attempted Murder in violation of the Law of War.  al Nashiri is the alleged mastermind for the bombing of the USS Cole and other maritime attacks.

Indianapolis to Ft. Meade:

I chose to view the al Nashiri hearings at Ft. Meade during the week of 12/12/2016 and view via CCTV.  I flew United Airlines from Indianapolis to Dulles Airport on Sunday, 12/11/2016, where I rented a car and drove an hour to Laurel, Maryland.  I stayed at the Days Inn in Laurel, which is fifteen minutes (7 miles) from Ft. Meade. The hotel rates were lower in the area, so I did not mind a 15 minute drive, which is easy to navigate during rush hour.

Arrival to Visitors Center at Ft. Meade:

The hearings were originally scheduled to being at 9:00 AM on Monday, but I learned via email from Prof. Edwards, that the hearings would be delayed for two hours.  It was recommended that I arrive at Ft. Meade’s visitors center two hours before the start time of the hearing, so I arrived at 9:00 A.M., so that I could pick up my Ft. Mead Badge to permit entry to the base each day.  I went to the Ft. Meade Visitors Center to pickup my badge, I had two show two pieces of ID for them to Issue my Ft. Meade Credential and an easy process (since I had a background check completed through my the Observation Project prior to travel).  The line was short at 9AM, but it should be expected for there to be longer lines at 7AM, since that is the time the Visitors Centers open and anyone visiting the base would need to obtain credential prior to entering.  I drove through an inspection point, the entry point is directly behind the Visitors Center, which was an easy process.  The guards request to see a form of ID with the permit that was obtained at the Visitors Center.  The guards will randomly search vehicles, follow instructions of the guards and all will go smoothly.  If you are driving a personal vehicle, the guards may request to see insurance paperwork with your credentials and ID.  I was driving a rental guard, so I provided the proof of insurance that was purchased through the rental car agency.  Federal Law requires that all vehicles have updated insurance coverage when on base.

Observation Day 1

The al Nashiri hearings were broadcast by CCTV into a classroom at Ft. Meade’s McGill training center.  When you arrive at the training center, be prepared for security to do a quick wanding, then lock up your cell phone in a small locker in the classroom.  It is advisable to leave other devices and laptops in your hotel room or the trunk of your vehicle.

I attended three days of hearings, and each day there was only one other person in the room.  That person was responsible for ensuring all phones were stored in the lockers.  One the large screen in the font of the classroom, I could see different views of the courtroom at different times.  The camera seemed to be pointed at the person who was speaking at the time, whether it was Judge Spath (the military judge), the prosecution or defense lawyers, or the Defendant al Nashiri himself.

At the beginning of the Day 1 hearings, Judge Spath advised al Nashiri that he had the right to be present for all hearings, if he chose not to attend it would not have impact on decision-making regarding rulings to motions.  al Nashiri nodded and waved to the judge suggesting that he understood these rights.  al Nashiri also waived his right to have the court stop proceedings for specified times throughout the day for prayers.

Whenever I saw al Nashiri, he was sitting in a chair at the far end of the defense table, facing the court. He wore a white flowing shirt, but I was told later that he would wear the suit jacket of his interpreter, who was seated next to him throughout the hearing.  Al Nashiri’s hands and legs did not appear to be cuffed, and I was told later that he was not cuffed.  I could not see guards on the screen, though I was told that at all times there were at least four or five guards within several feet of al Nashiri at all times, though the guards were  not visible to me.  As mentioned, an interpreter was visible sitting beside al Nashiri and both wore headsets during the proceedings.

The defense called former assistant deputy of the Convening Authority. Edward Sherran to testify. The questioning by the defense focused on his role as assistant deputy and those of the advisors within the Convening Authority.  The defense also called Lt. Col. Lewis, again to offer insight to actions of the Convening Authority at the time Gill was the only advisor that was qualified to work on the Al Nashiri case.

Day 2:

Day 2 focused on a host of motions.  The first motion was by the defense, which was to compel witnesses to support the defense claim of the Convening Authority’s unlawful influence.  The defense would like to compel three former Convening Authority personnel to testify – Gill, Tull and former deputy Quinn.  The defense claims testimony is necessary, as the government continues to not respond with items requested in discovery motions.

The hearings then moved towards what is referenced as the “Kuwaiti Files”.  The defense requests intelligence relating to the drone strikes of Al Fahdi, as there is knowledge that there was a connection between Al Fahdi and al Nashiri.  The defense argued that the fact the Department of the Treasury placed Al Fahdi on a watch list for his role in the Linberg attack is evidence that there is a connection between al Nashiri and Al Fahdi, and that the evidence is relevant and necessary to a robust, effect defense of al Nashiri.  The defense claims that only 20 pages has been handed over by the government, that this is insufficient and that definitely more intelligence must be available, since the U.S. would not have killed Al Fahdi in a drone strike based on 20 pages of documents. The defense argued that the motion to compel government agencies to provide evidence is necessary, as the agencies have not been forthcoming.

The court discussed that the al Nashiri case has been in the discovery phase for five years, that it is necessary to move forward in a timely manner.  The remainder of the Tuesday hearing focused on the defense arguing that there would be a violation of Brady and Giglio rulings, which could lead the defense to request a mistrial.  Judge Spath stated the Brady and Giglio arguments are available during the appeal process, not during the discovery phase.  The defense then argued that the court should still grant the motion to compel, to ensure that a record is established and that a record is necessary for the appeals court to consider post-trial.

After a lunch recess, the afternoon hearings focused on “505” matters, which meant that there were classified hearings that were closed to the public.  It became clear that Friday hearings would also be classified and closed to the public.

On Tuesday, at lunch, I found the Ft. Meade food court, that offered several food options, including – Burger King, Boston Market, Philly Steaks, and Starbucks.

Day3:

Day 3, Wednesday morning hearings, were again open to the public and the Afternoon hearings were closed to cover classified matters.

In the morning, the defense raised additional motions to compel the CIA to provide information, especially relating to Black Site interrogations.  The CIA claimed that tapes, containing footage of al Nashiri being exposed to enhanced interrogation techniques and these tapes were important for an adequate defense.  The defense cited four other witnesses that should also be called to testify; these witnesses would provide information to the black site interrogations.  One witness identified was Mitchell, who recently released a book relating to the Black Site operations.

The morning hearing was shorter than the first two days, but it was full of defense arguments as to why government agencies should be compelled to provide evidence, while the prosecution arguments that evidence relevant to the case has always been provided.

Conclusion:

It was fascinating to observe arguments presented by both the defense and prosecution, especially in a case that has been in the discovery phase for five years.  I was able to understand the motions in the proceedings, as I  reviewed the case summary that is available on the Observation Project’s website and the government web site, which provides transcripts and motion history/rulings.  I learned a great deal about the matter regarding enhanced interrogation techniques, which is relevant to the defense of al Nashiri and I am curious as to how the court will approach this matter. Will the court compel a witness, like Mitchell, to testify?

I look forward to the opportunity of attending more hearings in the future, as being a student in the Masters of Jurisprudence program, it was relatively easy to understand the flow of the hearings and fascinating to how a court of law is operating in Guantanamo.

Heather Wilhelmus, MJ Student,

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

Program in International Human Rights Law

Indiana University McKinney School of Law

 

 

Flying from Joint Base Andrews to Guantanamo Bay, Cuba

The sun has not risen yet as I wait at the Joint Base Andrews air terminal to board a flight to Guantanamo Bay, Cuba.

My mission today is to attend, observe, analyze, critique, and report on U.S. military commission hearings for alleged war criminals. The hearings this week are against five Guantanamo detainees who are alleged to have masterminded the 11 September 2001 attacks on the Pentagon.

I am part of the Military Commission Observation Project of Indiana University McKinney School of Law, where I am a student.

Getting to Andrews
I arrived at Washington National Airport in Washington D.C. after midnight – around 12:30 a.m. – about 7 hours later than I was originally scheduled to arrive at Dulles Airport. I began my trip at Indianapolis airport and two of my flights were cancelled.

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Arriving at the gate in Washington D.C. at 12:30am on 23 January 2017

I had planned to arrive yesterday afternoon but was forced to reschedule flights, which delayed arrival. My flight from Indianapolis to Detroit was cancelled but the folks at Delta were able to put me on another flight to Detroit later in the day. I made it to Detroit in time to catch my connecting flight to Washington D.C. but that connecting flight was also cancelled. All flights from Detroit to D.C. were overbooked so it was not possible to make it on time flying standby. I showed my invitational travel order to the folks at Delta and they put me on the next flight out. Do not book a flight to Washington that arrives the afternoon before a morning flight out of Joint Base Andrews. I barely made it and Washington National Airport is less than a thirty-minute drive from Joint Base Andrews. I went straight from the airport to Joint Base Andrews.

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Floor mosaic and American flag at Washington National Airport

When I arrived at Andrews Visitor Control Center, a civilian escort picked me up and took me to Andrews air terminal, from where President Obama took his last flight on Air Force I 3 days ago — on Friday, 20 January 2017, after he left the Office of the Presidency.

At the terminal I met about a dozen other non-governmental organization (NGO) representatives who are also serving as Observers. I distributed copies of the Guantanamo Bay Fair Trial Manal: Excerpts, which was authored by Professor George Edwards and others at Indiana University McKinney School of Law. I have found the Excerpts to be a valuable tool to help me prepare for my mission, and I believe that other observers agree.
After distributing the manuals, the remaining manuals are left in the NGO Resource Center at GTMO.

Checking in at Andrews
Checking in at Joint Base Andrews is straight forward, similar to any commercial flights. Bags are labeled with green colored tags to identify the bags as belonging to NGO representatives. Next, I had to present my invitational travel order, APACS, and identification. Our identification functions as our boarding passes, although this is only because the printer is not working. Our military escort was kind enough to drive us all to the Starbucks on base, which opens at 5:30am.

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NGO representatives enjoy Starbucks and wait to board the flight at Joint Base Andrews

Waiting to Board
Our flight to Guantanamo Bay was originally scheduled to depart at 8:00am, and we were required to be at Andrews at 4:30am for the flight

We just learned that our flight time has been delayed to 10:30am.

Now we sit and wait patiently to be allowed to board the plane and depart for Guantanamo Bay!

Written on 23 January 2017

Posted 24 January 2017

By Ben Hicks
J.D. Student
Military Commission Observation Project
Program in International Human Rights Law
Indiana University McKinney School of Law

 

First Guantanamo hearings in Trump Era possibly derailed

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Cheryl Bormann, counsel to 9/11 case defendant Waleed bin Attash, did not travel to Guantanamo Bay reportedly due to a medical emergency. (Photo from Flickr)

The first Trump-Era Guantanamo Bay war crimes hearings are set to commence tomorrow, 25 January 2017, but they may be derailed. A death penalty lawyer for one of the accused is absent from Guantanamo this week due to a medical emergency, and it is unclear whether hearings can or will go forward in her absence. Her client, one of the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon, is entitled to death penalty counsel. Ms. Bormann is the only death penalty lawyer who is representing him.

 

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Walid bin Attash, a 9/11 case defendant who faces the death penalty, is without his death penalty lawyer for this week’s hearings at Guantanamo

The military judge for the case ordered that the hearings go forward on Wednesday morning, 25 January 2017, despite objection by the defense. If hearings commence on Wednesday morning as scheduled, it is unclear whether they will continue for the full 2 scheduled weeks, or whether they will come to a hasty end Wednesday, Thursday or Friday if objections continue.

Hearing participants — travel to / from Guantanamo

The hearings are held at the remote Caribbean island U.S. Naval Base at Guantanamo Bay, yet the only participants in the hearings who reside at Guantanamo Bay are the detainee defendants. Virtually everyone else involved lives in the mainland U.S., and must be shuttled down.  Typically a day or two before hearings commence, hundreds participant convene at Andrews Air Force Base outside of Washington, D.C. and board a military plane for Guantanamo. This includes the judge and his staff, the prosecution team, 5 sets of defense lawyers and their staff, interpreters and translators, media, independent observers / monitors, and victims and victims’ family members. If hearings last for two or more weeks, on the weekend in between planes shuttle to / from Guantanamo Bay swapping out media, observers / monitors, and victims and their family members, most of whom attend for one week at a time only.

A question remains as to whether a plane will depart Andrews as scheduled on Saturday, 28 January 2016, carrying observers / monitors, media and victims and their family members for hearings next week, or whether next week’s hearings will be cancelled.

Docketing Order

Earlier this month the court’s docketing order listed topics to be covered this week and next. Here is the docketing order:

George Edwards

Professor of Law

Indiana University McKinney School of Law

Founder, Military Commission Observation Project & GitmoObserver

Founder, Program in International Human Rights Law