9/11 Hearings at Guantanamo

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The Convening Authority’s Administration Building at Guantanamo.  Photo from the Defense Systems Journal.

As I learned during my first visit to Guantanamo as an NGO representative of Indiana University School of Law’s observer program in January, the fact that there are hearings scheduled at the war court complex is no guarantee that they will go forward.  At that time, hearings were cancelled and shortened due to concerns for the health of alleged al-Qaeda commander Abd al Iraqi/Nashwan al Tamir, who has now undergone five back surgeries in the past nine months.  As we prepared to observe this week’s hearings against five alleged September 11 conspirators, we learned that there were again issues that threatened to derail the hearings scheduled through the week.

Mold issues at the war court

When the defense team for alleged 9/11 conspirator Walid bin Attash arrived at their offices in a prefabricated trailer-style building Saturday, they found it, their files, and their court clothes caked in mold.  The legal teams’ trailers are a part of the “Expeditionary Legal Complex,” which, along with the “Camp Justice” tent city housing visiting NGOs and journalists, all atop an obsolete airfield.  The hearings were again in question, until Sunday night, when we learned that they would indeed go ahead at 9 a.m. after an 8 a.m. conference between Judge Parella and the parties’ lawyers.

The first hour of the day was spent in discussion of the mold problems, and the delays to planned preparation they caused the defense teams.  According to Bin Attash’s defense lawyer, William Montross, two members of the defense team had gone to the ER for “breathing difficulties” and a third’s arms were “all red” as a result of the exposure to the mold.  His own suits were ruined, and he wore instead green chinos, a gray collared shirt, and a “Harry Potter” tie.  Confidential documents had to be left behind rather than risking contaminating other areas.

Proposed alternate office contained a decaying rat and rat feces and nests.  The other teams, who’s offices share a common ventilation system, were also affected.  Montross argued that the hearings should be delayed to permit more preparation time to make up for time lost dealing with the mold, re-printing documents, and finding an alternate workspace.  Judge Parella rescheduled oral argument on a bin Attash motion until later in the week, and otherwise decided that hearings would proceed as scheduled.

The gallery

I and observers representing eight other non-governmental organizations (NGOs) and our Guantanamo escort entered the court complex through a security tent and a walkway lined with chain-link fencing covered with black cloth sniper-netting and lined with razor-wire.  There was additional security at the entrance to Courtroom II itself, and we then received our seat assignments in the gallery.  The nine of us sat in the third and last of four rows on the left side of the gallery, and several journalists sat in the first row.  Several uniformed servicemen sat to our left, as did a paralegal and one of the legal teams’ victim family member liaisons.

Eight victim’s family members (VFMs) entered the gallery last, sitting in three rows on the right side of the gallery, separated from us by a blue curtain.  Before the hearings started, VFMs were escorted individually to the left side of the gallery to get a better view of the defendants.  While most of the NGOs are lawyers or law students representing law schools and other legal organizations, one of our group represents September 11th Families for Peaceful Tomorrows, and herself lost her sister in the South Tower of the World Trade Center on that fateful day.

The gallery we were seated in has five large windows looking into the courtroom, each with a television monitor at the top.  The monitors display the person speaking, whether the judge, defense or government counsel, and they and the audio work on a 40 second delay.  We were informed that if classified information is mentioned, a police-type light to the left of the judge would turn on, the monitors and audio would stop, and white noise would begin.  This has not occurred while I’ve been at the court.  Cameras in each corner of the gallery kept watch upon observers, who were warned that decorum would be maintained as if we were seated in the courtroom.  The proceedings were also broadcast by closed circuit television to sites at Fort Meade, Maryland and Fort Devens, Massachusetts.

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

The Courtroom

Inside the courtroom are six tables for each the defense and prosecution teams of up to six defendants.  A chair on the left side of each defense table is equipped with “shackle points” – a chain about a foot long secured to the floor to which Defendants may be shackled.  These shackle points have not been used in some time. The five defendants were escorted in by guards of the Joint Task Force – Guantanamo Bay (JTF-GTMO).  Twelve to fourteen guards rotated in and out of the courtroom and along the left wall periodically throughout the hearings.

The defense side of the court was full.  Four of the defense teams, both military and civilian lawyers, are seated to the right of their clients.  Walid bin Attash has declared that he no longer wants his counsel to represent him, so they sit at the sixth table.  Most of the female defense lawyers, in consideration of their client’s cultural sensitivity, wear traditional Muslim abayas covering their heads.  Six three shelf carts full of documents binders are arrayed around and behind defense tables. Government trial counsel sit to the right of the aisle, and are either military, Department of Defense, or Department of Justice lawyers.

Defense motions to compel additional evidence – business records correspondence

Much of the day was taken in arguments over defense motions to compel the government to produce additional evidence about CIA torture and its rendition, detention, and interrogation program.  The first of these was Mustafa al Hawsawi’s motion to compel the government to produce records regarding communications the FBI had with, and records it obtained from, third parties during its investigation of the case.

Al Hawsawi lawyer, Marine Corps Lieutenant Colonel Sean Gleason, explained that during the testimony of FBI Special Agent Abagail Perkins last year, it was revealed to the defense for the first time that the banking and financial records’ declarations the prosecution had offered in its case against al Hawsawi were not collected by the FBI themselves, but were provided by foreign government intermediaries, sometimes years after the records themselves were collected.  Therefore, the defense needs notes, letters, or e-mails containing requests or responses between the FBI and foreign governments in order to properly evaluate the foundation for the records.  Lawyers for Walid bin Attash and Ammar al Baluchi joined in the motion, noting that the financial records were the government’s most important evidence regarding their client’s alleged support for the 9/11 hijackers.

Defense motions to compel accurate information regarding CIA black sites

Lawyers for Ammar al-Baluchi then argued two motions to compel the government to produce additional information about CIA torture, mainly conducted at “black sites” at locations around the world.  Following his arrest in April 2003, al Baluchi was kept in CIA custody at undisclosed locations prior to his September 6, 2006 transfer to prison at Guantanamo.  During al-Baluchi’s secret detention, he was tortured by the CIA using what have become known as “enhanced interrogation techniques.”

Al-Baluchi’s civilian lawyer, Alka Pradhan, made the argument that the index that the government had provided regarding the CIA’s rendition, detention and interrogation program (“RDI”) was full of errors, gave only code names instead of actual locations, and failed to identify individuals that were present during his interrogations and torture.  Other defendants joined in the motion, and Walid bin Attash’s lawyer deferred argument until Friday’s closed session.  The government argued that Judge Pohl had ruled the index they had provided was sufficient, and that witness identification was unnecessary.

Defense motions to compel information about torture and interrogations

Al-Baluchi’s learned counsel, James Connell, argued related motions that the government produce information for non-CIA requests for black site interrogations, documents regarding interrogation personnel, and a report regarding the CIA’s sleep deprivation policy.  Death penalty defendants are entitled to counsel experienced in capital cases.  Connell argued that it appeared that the FBI had fed questions to CIA interrogators, and that the court should therefore compel the government to provide information regarding FBI investigations in Iraq, Afghanistan, and Guantanamo.

The defense is also requesting profiles of individuals who worked at black sites and had direct and substantial contact with the defendants.  Government lawyer Jeff Groharing argued that Judge Pohl had approved its index as satisfying the requirement for a synopsis of individuals with substantial contact with the defendants, and that the government was continuing to supplement its responses to the defendants’ requests.

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Ammar al Baluchi was tortured at CIA black sites for 3 1/2 years prior to his transfer to Guantanamo

Court was adjourned for the day at 3:30 to permit defense teams at least some additional time to prepare for Tuesday’s testimony of William Castle.  Castle was the acting general counsel at the Department of Defense in February, when Defense Secretary James Mattis fired the Military Commissions Convening Authority Harvey Rishikof and its legal adviser Gary Brown.

Paul Logan

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

Program in International Human Rights Law

Indiana University McKinney School of Law

 

 

 

 

Return to Guantanamo Bay to Observe 9/11 Hearings

I was approved and have traveled to the U.S. Naval Station at Guantanamo Bay, Cuba for U.S. Military Commission hearings against five alleged September 11 conspirators.

My mission

I graduated with a J.D. from Indiana University McKinney School of Law in 1994, and am an employment lawyer in Indianapolis. When I was in law school, there were few international law opportunities for students.

Several years after I graduated, the school founded its Program in International Human Rights Law (PIHRL), which for over 20 years has offered students and graduates many international opportunities. One of its projects is the Military Commission Observation Project (MCOP), which sends faculty, staff, students, graduates to Guantanamo, after the program received  special status from the Pentagon.  I am thankful and excited about this opportunity!

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My invitation to travel to Guantanamo and invaluable resources from the observer project

My mission through the IU McKinney project is to attend, observe, be observed, analyze, critique, and report on the hearings against the 5 alleged 9/11 co-conspirators.

The Defendants

Khalid Shaik Mohammad is the lead defendant, and is accused of masterminding the 9/11 attack on the World Trade Center and Pentagon, and overseeing the operation and training of the hijackers in Afghanistan and Pakistan.  Walid bin Attash allegedly ran an Al-Qaeda training camp in Afghanistan where two of the 19 September 11 hijackers were trained.  Ramzi bin al Shibah allegedly helped the German cell of hijackers find flight schools and enter the United States, and helped finance the plot.  Ammar al Baluchi, Khalid Shaik Mohammad’s nephew, allegedly sent money to the hijackers for expenses and flight training, and helped some of them travel to the U.S.  Mustafa al Hawsawi allegedly also helped facilitate fund transfers. All  9/11 defendants were arrested in the early 2000s, were held in CIA blacksites, and transferred to Guantanamo in 2006.

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Khalid Shaik Mohammad (“KSM”)

My previous Guantanamo trip.

This is my second trip to “Gitmo” (the nickname for the naval station).  In January 2018, I attended hearings in the case of alleged al -Qaeda commander Abd al Iraqi/Nashwan al Tamir.  Al Iraqi / al Tamir has had five back surgeries in the past nine months, and that contributed to his having only two half-day hearings days the week I was here.  Incidentally, hearings in Al-Iraqi’s case were again cut short this last week when he suffered spasms in the Courtroom and was rushed to a medical facility.

Last week, the sole high security courtroom at Guantanamo was double-booked, with hearings scheduled concurrently for the 9/11 defendants and for al Iraqi/al Tamir. Only one set of hearings can be held here at a time. Last week, the military judge in the 9/11 case, Marine Col. Keith A. Parella, held closed hearings in the Washington D.C. area, the first time a Guantanamo military commission criminal hearing in a death penalty case has been held in the continental U.S.  Parella has presided since August 27 and replaced Army Col. James Pohl, who had presided continuously since 2011.

Preparing for My Trip to Guantanamo.

On Saturday, 10 November 2018, I traveled on a military flight from Andrews Air Force Base in Washington, D.C. to Guantanamo Bay.  Motion hearings in the 9/11 case are scheduled to take place all week.  There will be eight other representatives of non-governmental organizations (NGOs) observing the hearings with me.

My preparation for the mission to Guantanamo has included reviewing several publications of the Program in International Human Rights Law. These include the Guantanamo Bay Fair Trial Manual: Excerpts, which has introduced me to the relevant international and U.S. law.  I believe this publication will be very helpful as I seek to analyze, critique and report on my Guantanamo experiences.

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

One of the NGO representatives, from the National Institute for Military Justice, provided the other NGOs documents relevant to the issues that are expected to be addressed.  These are about 50 pleadings in the case, and a docket showing 17 motions which the court needs to address.  More recent filings remain confidential, an issue which Al-Baluchi’s team hopes will also be addressed.  This will certainly make for a full and interesting week.

We attended a barbeque hosted by al Baluchi’s defense team on Saturday night. The al Baluchi team sent a summary of five main issues that they expected would be addressed, and confirmed that Judge Parella intended to address those issues in a conference held earlier on Saturday.

The first is issue political influence with the military justice process, including the coordinated firing of senior military commission officials and the current CIA Director’s comments regarding the guilt of the accused.

The other issues are: defense access to additional information about CIA torture, defense access to other evidence, conditions of confinement issues, and the transparency of the military commissions.  In January, our group of NGOs attended a similar barbecue hosted by Al-Iraqi’s defense team later in the week.  Our meeting with al Baluchi’s defense teams this early in the week has helped us all understand the issues that will be addressed this week much better.

I plan to draft more blog posts as the week progresses.

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

Paul Logan

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

Program in International Human Rights Law

Indiana University McKinney School of Law

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

Hearings in a Guantanamo Bay, Cuba U.S. military commission war crimes case are scheduled for 5 to 9 November 2018. I was nominated to travel to Ft. Meade, Maryland, where the hearings will be broadcast live via CCTV, direct from the Guantanamo courtroom, in a criminal case against an alleged high level member of al Qaeda Iraq.

I am a librarian at Indiana University Robert McKinney School of Law with a long interest in international law and human rights. When I arrived at the law school in January 2017, I was intrigued by its Military Commission Observation Project, which is part of our law school’s Program in International Human Rights Law.
In January 2018, Professor George Edwards circulated a note to faculty, staff, students and graduates announcing that we were all eligible to travel to monitor military commission war crimes hearings at Guantanamo Bay, Cuba (for live monitoring in the courtroom) and to Ft. Meade (for CCTV monitoring).   In February 2018, I submitted my application and supporting documents to the Pentagon for travel to both Guantanamo and Ft. Meade, as a non-governmental organization (NGO) observer. The Pentagon cleared me for travel to Guantanamo and to Ft. Meade. Due to various circumstances, I have opted to travel to Ft. Meade for my first observation mission.

Upcoming hearings

The military commission hearings I plan to monitor are against a man from Iraq whom the prosecution calls Abd al Hadi al Iraqi, but who calls himself Nashwan al Tamir. The U.S. accuses him of being a senior member of al-Qaeda Iraq, liaison with the Taliban, and perpetrator of war crimes. The charges include denying quarter, attacking protected property, using treachery or perfidy, and attempted use of treachery or perfidy in a series of attacks in Afghanistan and Pakistan between about 2003 and 2004, and conspiracy to commit law of war offenses.  He faces a full range of sentencing possibilities if convicted – a term of years, or life in prison. The death penalty is not on the table.

As I was preparing for monitoring, I wanted to review motion papers and other official documents for the case. I looked up the case at mc.mil.  However, much of the very recent court documents are hidden behind a blocked screen that indicates that those documents are undergoing a security review and are not accessible to the public at this time.

Preparing to Monitor

My trip will begin in about a week.  To prepare for the case, I have been reading the following sources: The Know before You Go to Guantanamo Bay Manual and The Guantanamo Bay Fair Trial Manual, principally authored by Professor George Edwards, with the assistance of McKinney stakeholders and contributions from many others.  These manuals provide significant and necessary information for anyone monitoring these cases.

My mission

As an observer / monitor, my mission is to attend, observe, be observed, analyze, critique and report on the military commission hearing at Guantanamo.  I am looking forward to this opportunity.

As part of my mission, I plan to submit another blog post before I depart, and send in posts while there.

Larissa Sullivant

Library Faculty

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

Program in International Human Rights Law

Indiana University McKinney School of Law

 

Reporting from Guantanamo Bay:  Courtroom Clash and Hearing Delays

Reporting from Guantanamo Bay

I am a recent graduate of the Indiana University McKinney School of Law (IU McKinney) and I am representing the IU McKinney Military Commission Observation Project (MCOP).

I traveled to Guantanamo Bay, Cuba this weekend to monitor hearings in a U.S. military commission against an alleged high-level member of al-Qaeda who has been charged with war crimes.

My mission at Guantanamo is to attend, monitor, be seen, analyze, critique and report on the proceedings of the defendant, Mr. Nashwan al-Tamir / Abd Hadi al Iraqi (hereinafter “Nashwan / Hadi”).  More about the MCOP and Nashwan / Hadi may be read through my earlier blog posts found here.

Tuesday 25 September 2018 Hearing

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

Tuesday’s hearing (25 September 2018) began with testimony from an Assistant Staff Judge Advocate (ASJA) of the U.S. Navy.  The ASJA testified that he provided Nashwan / Hadi notice of his right to be present during Tuesday’s hearing in accordance with Judge Libretto’s orders during the hearing on Monday (24 September 2018).  The ASJA further testified that Nashwan / Hadi declined to be present for Tuesday’s hearing, and that Nashwan / Hadi expressed feeling “medically unable to appear”.

Following a short recess, prosecuting counsel (Mr. Vaughn Spencer) and defense counsel (Mr. Adam Thurschwell) presented oral arguments regarding whether or not the week’s remaining commission hearings should proceed in Nashwan’s / Hadi’s absence.

Thurschwell argued that Nashwan / Hadi could only waive his right to appear for Tuesday’s hearing after making his first hearing appearance during this week’s commission session.  As Nashwan / Hadi did not appear for the first hearing of this week’s commission session on Monday, Thurschwell argued that it would be erroneous to continue proceedings for the week absent a valid waiver of Nashwan’s / Hadi’s right to appear for those proceedings.

In other words, Thurschwell recalled the principle of express waiver as discussed under under the Rules of Military Commissions—R.M.C. 804(c).  In practice, this principle requires the military judge (Libretto) to require the defendant (Nashwan / Hadi) to appear for the first hearing of a new hearing session (the Monday 24 September 2018 hearing).  During that first hearing, the judge must inform the defendant of his rights, including the right to not be present at future hearings for the week.  On subsequent hearing days for the week, the defendant can waive his right to be present for any hearing day during the session, in which case the court requires the defendant to sign a formal waiver stating that he is voluntarily absenting himself.  Thurschwell applied this principle to the context of Tuesday’s hearing, and argued that the court did not properly follow the practice described above.

On the other hand, Spencer argued that the Senior Medical Officer (SMO) medically cleared Nashwan / Hadi to appear in court on Tuesday, and that Nashwan / Hadi had been adequately informed of Tuesday’s hearing.  Therefore, Spencer argued, Nashwan’s / Hadi’s failure to appear for Tuesday’s hearing was a voluntary refusal.  In other words, Spencer argued that Nashwan’s / Hadi’s absence constituted a voluntary waiver as discussed under R.M.C. 804(c).

Judge Libretto ruled in line with the prosecution (Spencer), stating:

Central to the commission’s analysis is whether the accused’s refusal implicates the principle of express waiver or voluntary absence.  The two principles are distinct. Express waiver, to be valid, requires an accused to be fully informed of his right to attend and the consequences of foregoing that right.  Voluntary absence, on the other hand, has no such requirement.  The absence needs only be found to be voluntary. In order to be voluntary, the accused must have known of the scheduled proceeding and intentionally missed them.

As an initial matter, this commission finds that the circumstances presented by the accused’s refusal to attend the scheduled sessions thus far this week implicate the principle of voluntary absence, not express waiver, as argued extensively by the defense.

In reaching this conclusion, Libretto held that Nashwan / Hadi had been medically cleared to appear for Tuesday’s hearing, and that appropriate accommodations had been made to allow his appearance.  Libretto therefore deemed Nashwan’s / Hadi’s absence from this hearing to be intentional, and accordingly found “the accused’s absence from this session to be voluntary and that the accused will have forfeited his right to be present if he continues to refuse to attend”.

Libretto then ordered the commission to reconvene at 9:00 a.m. each remaining day this week, beginning on Wednesday (26 September 2018).  Libretto further ordered that Nashwan / Hadi be allowed opportunities to appear for each scheduled proceeding for the week.  Libretto declared that the commission would not proceed in Nashwan’s / Hadi’s absence on Wednesday or Thursday (27 September 2018).  However, Libretto explained that should Nashwan / Hadi not appear on Friday (28 September 2018), Nashwan / Hadi would be considered voluntarily absent from that hearing, and the hearing would then proceed in Nashwan’s / Hadi’s absence.

Tuesday’s hearing then recessed for the day at 1:15 p.m.

Note:  For those wishing to access the unofficial / unauthenticated transcript of the Tuesday 25 September 2018 commission hearing as published through the Office of Military Commissions (OMC) website, you may do so here.

Nashwan / Hadi Suffers Further Back Spasms Causing More Hearing Delays

Abd Hadi al Iraqi (Nashwan al Tamir)

Nashwan al Tamir / Abd Hadi al Iraqi (pictured) underwent his fifth spinal surgery within an eight month period in May 2018 (2014 photo by the International Committee of the Red Cross).

Ms. Carol Rosenberg (whose twitter feed I have been monitoring for updates while at Guantanamo) tweeted on 3:01 p.m. Tuesday that Nashwan / Hadi suffered more severe back spasms sometime following the day’s earlier hearing.  She then explained that “Gitmo’s prison doctor” (presumably the Army SMO, but this remains unclear) revoked Nashwan’s / Hadi’s medical clearance to be transported from his cell.

Shortly afterward at 3:05 p.m., Ms. Rosenberg tweeted that Judge Libretto cancelled the hearing scheduled for Wednesday.  Around 9:00 p.m. that evening, I learned from an NGO escort that Judge Libretto similarly canceled the hearing scheduled for Thursday as well.  It remains unclear if the hearing scheduled for Friday will proceed should Nashwan / Hadi fail to appear.

Conclusion

Please stay tuned for further Guantanamo updates.

Jacob Irven, J.D. 2018
Military Commission Observation Project
Program in International Human Rights Law
Indiana University McKinney School of Law

Voter Protection Legal Fellow
Indiana Democratic Party

Jacob.Irven@gmail.com

Reporting from Guantanamo Bay: Commission Hearing in Limbo

Reporting from Guantanamo Bay

I am a recent graduate of the Indiana University McKinney School of Law (IU McKinney) and I am a representative of the IU McKinney Military Commission Observation Project (MCOP).

I traveled to Guantanamo Bay, Cuba this weekend to monitor hearings in a U.S. military commission against an alleged high-level member of al-Qaeda who is charged with war crimes.

My mission at Guantanamo is to attend, monitor, be seen, analyze, critique and report on the proceedings of the defendant, Mr. Nashwan al-Tamir / Abd Hadi al Iraqi (hereinafter “Nashwan / Hadi”).  More about the MCOP and Nashwan / Hadi may be read through my earlier blog posts found here.

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

The Only Thing Constant in Guantanamo

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

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

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

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

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

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

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

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

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

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

Commission Hearing Resumes

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

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

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

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

Abd Hadi al Iraqi (Nashwan al Tamir)

Nashwan al Tamir / Abd Hadi al Iraqi (pictured) underwent his fifth spinal surgery within an eight-month period in May 2018 (2014 photo by the International Committee of the Red Cross).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Pleased stay tuned for future updates.

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Me working in the NGO Center located near Camp Justice.

Jacob Irven, J.D. 2018
Military Commission Observation Project
Program in International Human Rights Law
Indiana University McKinney School of Law

Voter Protection Legal Fellow
Indiana Democratic Party

Jacob.Irven@gmail.com

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

Reporting from Andrews Air Force Base

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

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

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

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

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

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

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

Nashwan al Tamir / Abd Hadi al Iraqi

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

Reduced Hearing Schedule

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

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

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

Conclusion

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

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

Jacob Irven, J.D. 2018
Military Commission Observation Project
Program in International Human Rights Law
Indiana University McKinney School of Law

Voter Protection Legal Fellow
Indiana Democratic Party

Jacob.Irven@gmail.com

Heading to Guantanamo for 9/11 Hearings

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

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

Hearings this week

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

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

Conclusion

I plan to provide updates during the week.

George Edwards

Director (Founding), Military Commission Observation Project

Indiana University McKinney School of Law

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

Nominated for Travel

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

Abd Hadi al Iraqi (Nashwan al Tamir)

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

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

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

Previous Nomination

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

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

Background and Interest in Observing

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

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

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

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

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

Preparing to Observe

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

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

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

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

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

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

As always, please stay tuned for future posts.

Jacob Irven, J.D ‘18.

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

Program in International Human Rights Law

Indiana University Robert H. McKinney School of Law

At Andrews Air Force Base — Heading to Guantanamo Bay

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

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

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

My Experience at Andrews Air Force Base

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

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

Briefing for NGOS

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

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

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

Feelings About Being on Andrews Air Force Base

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

Departure

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

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Also reading the Guantanamo Fair Trial Manual Excerpts – At Andrews

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

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

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

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

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

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

I will report back after my observation this week.

 

Sheila Willard (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

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

Nomination

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

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

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

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

Background and Interest in Observing

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

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

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

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

Preparing to Observe

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

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

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

NGO Coins

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

Guantanamo20Coins20-20Final20-20March202018

 

Sheila Willard (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Final Mission to Guantanamo Bay as Law Student

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

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How I Got Involved

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

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

Developments in Guantanamo Bay

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

 

Ben Hicks

3rd Year Student

Indiana University McKinney School of Law

My NGO Observer Trip to Guantanamo Bay Naval Base is Cancelled

Tamir / Hadi Hearings Cancelled

I am a 3L student at the Indiana University McKinney School of Law and was recently approved by the Pentagon to travel to the Guantanamo Bay Naval Base (GTMO) to observe military commission hearings in the case against Nashwan al-Tamir, referred to by the prosecution as Abd al Hadi al Iraqi (“Tamir / Hadi”).

Tamir / Hadi is an alleged senior member of al-Qaeda, and is accused of commanding attacks against US and coalition forces in Afghanistan and Pakistan in collaboration the Taliban, among other charges.  Tamir / Hadi has been detained at GTMO since 2007—over 10 years.  As a representative of the law school’s Military Commission Observation Project, I was compelled to attend, observe (and be observed), analyze, critique, and report on Tamir / Hadi hearings.  The hearings were scheduled to occur between 8 April 2018 and 14 April 2018.

Approximately one week prior to my scheduled travel date, I received an email from the U.S. Office of Military Commissions declaring that the hearings I was scheduled to attend were cancelled.  I have yet to receive word regarding why these cancellations occurred.

The Importance of NGO Observers

Admittedly, I am a little disappointed the hearings cancelled.  As an independent NGO Observer, I was to serve an important role helping ensure the U.S. government followed its enduring mandate to respect fair trial rights and other human rights for all stakeholders during the hearings.  I was also to serve an important role communicating my experiences, insights, and conclusions about the hearings with the broader public, just as past Observers have done through The Gitmo Observer and other channels.

However, I ultimately remain hopeful that I will have the opportunity to attend hearings in the future, whether at GTMO or at Ft. Meade in Maryland.

In the meantime, I plan to continue consulting both the Guantanamo Bay Fair Trial Manual (Volume I) and the Appendices to Guantanamo Bay Fair Trial Manual (Volume II).  These Manuals, which feature ongoing contributions from Professor George E. Edwards and other Indiana University McKinney Law affiliates, identify internationally-recognized rights that apply to fair trials in the U.S. Military Commission context.  They also detail the roles and objectives of NGO Observers in this context, and have therefore been invaluable resources as I have prepared for my role as an NGO Observer.  Beyond the Fair Trial Manuals, I also plan to continue consulting the publically accessible GTMO case information available through the U.S. Military Commission website – www.mc.mil.

Jacob Irven (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Heading to Guantanamo Bay, Cuba Today

NGO Briefing - Andrews - 24 Feb 2018 - with smudgingIt’s Saturday morning and I’m heading to Guantánamo Bay again. This time I’m monitoring the US Military Commission case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. They are facing war crimes charges punishable by death.

The only people involved with this case who live at Guantanamo are the 5 defendants. Everyone else involved gathers at Andrews Air Force Base, the Home of Air Force One, and flies on a military flight to the remote base at the southern tip of Cuba.

With me at Andrews waiting for our flight is the Military Judge who is hearing the case and his staff, a series of prosecutors and defense counsel, court reporters, victims and their families, witnesses, security, media, and others. My role this trip is as an observer / monitor representing the Military Commission Observation Project I founded at Indiana University McKinney School of Law, to which the Pentagon granted permission to send our Faculty, staff, students and graduates to Guantanamo.

Our Indiana group is considered an “non-governmental organization (NGO)”. Today I am joined today by representatives of 9 different NGOs. Our mission is to attend, observe, be observed, analyze, critique, and report on the war crimes hearings.

Pictured above are our NGO observers receiving a briefing by Commission staff, the NGOs in the Andrews waiting area, and us in the bus on the Andrews tarmac as we head towards the plane. I will not post photos of the plane.

I plan to post updates later today and through the week.

George Edwards

Military Commission Observation Project

Indiana University McKinney School of Law

Nominated to Travel to Guantanamo Bay Naval Base to Monitor Hearings Against Nashwan al-Tamir / Abd al Hadi Al Iraqi

Nominated for Travel

I am a student at the Indiana University Robert H. McKinney School of Law, and I am currently participating within the law school’s Military Commission Observation Project (MCOP) as an NGO Observer.  With the Pentagon’s approval, I am scheduled to attend, observe (and be observed), analyze, critique, and report on military commission hearings at the Guantanamo Bay Naval Base (GTMO) in the case against Nashwan al-Tamir, referred to by the prosecution as Abd al Hadi al Iraqi (“Tamir / Hadi”).  The hearings are scheduled to occur between 8 April 2018 and 14 April 2018.

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

Tamir / Hadi is an alleged senior member of al-Qaeda, and is accused of commanding attacks against US and coalition forces in Afghanistan and Pakistan in collaboration the Taliban, among other charges.  Tamir / Hadi has been detained at GTMO since 2007, and has been the subject of criminal trial proceedings there since 2014.

Background and Interest in Observing

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

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Me standing next to the “A Tolerant and Hate-Free Mongolia” banner developed during my summer 2017 PIHRL Internship.

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

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

Preparing to Observe

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Me reviewing the Guantanamo Bay Fair Trial Manual (Volume I) in preparation for travel.

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

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

Beyond these materials, I have also been reviewing publicly accessible GTMO case information available through the U.S. Military Commission website – www.mc.mil.  This has allowed me to better familiarize myself with the substantive proceedings in the case against Tamir / Hadi, and has granted me a better understanding of the procedural context of Military Commissions in general.

Finally, I have arranged for own my travel to Joint Base Andrews in Washington, D.C., which is required for all MCOP Representatives.  I remain excited for the journey to come, and to further engage in my important role as an NGO Observer.

Please stay tuned for future posts.

Jacob Irven (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Reflections on my Previous Guantanamo Observation Trip

I traveled to Guantanamo Bay, Cuba from 11 to 18 November 2017 to observe military

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Four other NGOs and I at Guantanamo’s Camp Justice that week

commission proceedings against Mr. al Nashiri, who is facing war crime charges as the alleged mastermind of the October 2000 bombing of the USS Cole that killed 17 U.S. sailors and wounded dozens more. I am a student at Indiana University McKinney School of Law, and I was a non-governmental organization (NGO) representative on behalf of McKinney’s Military Commission Observation Project. I was there to attend, observe, be observed, analyze, critique, and report on my experiences.

My Previous Guantanamo Observation

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Lighthouse at Guantanamo

Court was in session four of the five days during my week at Guantanamo. Most of the witnesses were called by the prosecution to testify about evidence they had collected from the USS Cole after the bombing and to verify the chain of custody.

Some of the witnesses were called to testify about the ongoing professional responsibility issue in the case. The issue is complicated, and is discussed more in-depth here and here.

In brief, Mr. al Nashiri’s Learned Counsel (an attorney who is experienced in death penalty cases) and two other civilian attorneys for Mr. al Nashiri did not travel to Guantanamo Bay for hearings that week as they contended that the Chief Defense Counsel of the Military Commissions released them from representing Mr. al Nashiri for “good cause.” The Judge disagreed with the Chief Defense Counsel’s decision and held him in contempt for refusing to rescind his order to release counsel and for refusing to take the stand and testify about the issues. The Judge has asserted that these three defense counsel have “abandoned” Mr. al Nashiri.

In January 2018, the Judge ordered the prosecution to subpoena the three defense counsel and recommended that the remaining defense counsel, LT Piette, become “more comfortable handling capital matters” so that the case can continue forward. The case did arguably move forward in January, in the sense that hearings were held that month, with LT Piette sitting in the courtroom as the only lawyer representing Mr. al Nashiri.

The Judge is awaiting decisions from two federal district courts.

Further Thoughts

Now that time has passed since I observed Mr. al Nashiri’s proceedings I have had time

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In front of the North East gate which separates the U.S. and Cuba

to reflect on his case, and on the military commission proceedings in general.

U.S. military commissions are not new, and in fact have been around since the Revolutionary War. Our current military commission process is guided by the Military Commission Act (MCA) of 2009, which built upon the MCA of 2006, which followed from an Executive Order signed by President Bush in 2001. The MCA of 2009 is the legal authority for this court-martial/federal criminal court hybrid, and a legal observer can see the qualities of both criminal processes present in these military commissions.

Guantanamo defendants and defendants in the U.S. are under law meant to be afforded due process, and all have the Constitutional right of habeas corpus. On the other hand, their trials are guided by two different, but similar, rules of evidence. Both courts-martial and military commissions are generally open proceedings, but both can be closed for classified sessions. Courts-martial and military commissions both have a panel of military members and are not a trial by a judge or with a civilian jury.

Reasons for Wanting to Return

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Flying over Cuba

I hope to travel back to Guantanamo Bay, Cuba to either continue monitoring the commissions against Mr. al Nashiri, or to begin monitoring the commissions against Mr. Khalid Shaik Mohammad, also known as “KSM”, and his four co-defendants, also known as the “9/11 five.” I want to return to monitor the commissions against Mr. al Nashiri because I have observed his hearings in the past, and I have since been following his case.

I am also interested in observing the 9/11 five since the courtroom and military commission proceedings were designed to specifically try the 9/11 defendants. Further, I was in 2nd grade when 9/11 happened, and it is an event that I remember clearly and grew up learning about. It is an event that affected nearly everyone in the U.S. and beyond. In addition, 9/11 was a key event that changed how the U.S. combats terrorism and seeks to protect national security. I would be interested in observing and analyzing how the government is working towards those goals of counterterrorism and national security via the military commissions.

For either case, I believe it would be a great opportunity to learn more about this hybrid court-martial/federal criminal court process. I believe I would also gain insight that I could bring back to the Program in International Human Rights Law at McKinney so I can contribute to the Know Before You Go Guide and the Fair Trial Manual.

In addition to traveling to Guantanamo Bay, I would like to travel to Ft. Meade, Maryland, where the Guantanamo proceedings are broadcast by live CCTV to a secure room. This will offer me another perspective on the issue of openness and transparency of the proceedings, which is outlined in the MCA.

While I was observing the military commissions against Mr. al Nashiri in November

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Camp Justice, where I lived with the other NGOs for the week

2017, I was taking courses in Counterterrorism, Evidence, Professional Responsibility, and Criminal Procedure: Investigation back at Indiana University McKinney School of Law. I found all these classes to be helpful in understanding what was happening in the courtroom. I believe I will now have an even fuller understanding of what is happening in the courtroom since I have completed those courses. I am now currently taking Military Law and Criminal Procedure: Adjudication. Considering the military commissions are essentially halfway between a court-martial and a federal criminal trial, all the mentioned classes are very helpful. I also greatly appreciate that I have the opportunity to observe what I am learning at McKinney in the real world.

Further, I would have the opportunity to achieve the goals of McKinney’s Military Commission Observation Project: to attend, observe, be observed, analyze, critique, and report on my experiences. I would be able to bring what I observed first-hand, critique and analyze it, and share it with the public via the Gitmo Observer.

 

Jessica Ayer (J.D. Candidate, ’19)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Government’s “Star Witness” Against Nashwan Al-Tamir Appears in Guantanamo Court

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Ahmed Al-Darbi, in an undated photo by the International Red Cross 

Tuesday, 30 January 2018, in the Guantanamo Bay courtroom, an alleged al Qaeda Iraq member and Taliban liaison encountered the government’s purported “star witness” against him. Defendant Nashwan Al-Tamir has been charged with attacks against allied troops and contractors in 2003 and 2004 in Afghanistan, during the U.S. led invasion, and he was confronted in court by Ahmed Muhammed Haza al Darbi, who testified in August that Al-Tamir was “Hadi al-Iraqi,” Al-Darbi’s Al-Qaeda commander in 1996 whom he saw at a guest house with other Al-Qaeda commanders as late as 2000. In addition to testifying against Al-Tamir, Al-Darbi is also testifying in a case against the alleged U.S.S. Cole bomber, Abd al Rahim al Nashiri, who is alleged to have masterminded the bombing of the U.S.S. Cole off the coast of Yemen. His testimony was in exchange for a guilty plea under which he is set to return to Saudi Arabia this month to serve a sentence of 9-15 years.

Why I am in Guantanamo?

I am a graduate of Indiana University McKinney School of Law, and I am here as a monitor representing the school’s Military Commission Observation Project.  This week I and five other NGO representatives have been monitoring pre-trial proceedings in the government’s case against Al-Tamir.  Al-Darbi’s in court deposition was suspended in August due to Al-Tamir’s health and was set to resume next week.

Star witness against al-Tamir unexpectedly appears in the courtroom

To the the surprise of us NGO representatives observing proceedings this week, Al-Darbi came in to Court Wednesday afternoon with his lawyers for a hearing on Al-Tamir’s motion to compel production of records concerning his psychological condition and treatment.  We did not expect him to appear in court today and we were surprised because his deposition was not set until next week. Not even Miami Herald reporter Carol Rosenberg, the only reporter to regularly attend the hearings, knew that this motion was would be on the Commission’s docket this week. Al Darbi was clean cut and wore a blue suit, having shaved the beard he had worn prior to his guilty plea.  Al Tamir requested production of the records to try to discredit al Darbi’s testimony and deem it unreliable due to trauma he endured as a result of torture inflicted upon him at the U.S. air base in Bagram, Afghanistan and at Guantanamo.

Arguments about al Darbi’s mental condition & mental health records

Al-Tamir’s counsel, Air Force Major Yolanda Miller, argued that al Darbi’s records could show that Al-Darbi was suffering psychological trauma from torture when he testified against Al-Tamir in 2017.  Miller also argued that Al-Darbi had waived any patient-physician privilege when he disclosed records in arguing that he was unable to testify publicly, and that at least the Court should review the records in camera, without disclosing them publicly, before ruling.  The government argued that it had the responsibility to determine discoverability of the records, and that it had determined that al Darbi’s medical records were not relevant.  Al-Darbi’s lawyer, Navy Lieutenant Commander Greg Young, argued that the medical records were privileged, and that Al-Darbi had not previously disclosed any of the records.  The military judge, Marine Colonel Paul Reuben, took the matter under advisement.

Al-Tamir’s motion to abate the proceedings

Earlier Wednesday afternoon, the court had heard arguments on Al-Tamir’s renewed motion to abate the proceedings and his motion to compel the production of intelligence reports.  The proceedings had previously been abated, or suspended, due to Al-Tamir’s degenerative back condition, for which he’s received four surgeries in the past four months.  He had complained of pain since arriving at Guantanamo in 2007, and his previous treatment had largely consisted of ben-gay.  Only last year after Al-Tamir had become incontinent and paralysis became a threat did he receive the surgeries.

Al-Tamir lawyer Adam Thurschwell argued that due to events which occurred just after Tuesday’s hearing, the hearings in the case should be abated, or suspended.  Al-Tamir submitted a letter to the court stating that Joint Task Force (JTF-GTMO), which maintains the detention facilities at Guantanamo, had delayed his ability to relieve himself while dealing with the handcuffs agents had put on him too tightly, it’s seizure of documents his legal team had given him, and failure to deliver a special toilet seat to his holding cell which permitted the him to relieve himself without experiencing pain.  He soiled himself, and there was no running water to his cell.

Thurschwell argued that the hearings had to be abated due to the government’s deliberate indifference to Al-Tamir’s medical needs, making it impossible for him to meaningfully participate in his own defense.  Government lawyer Lieutenant Commander B. Vaughn Spencer presented the testimony of a Staff Judge Advocate (SJA) who disputed Al-Tamir’s version of events.  He testified that the papers had been taken as a part of a routine review process involving any papers provided to detainees, and that he had asked Al-Tamir three times if he needed to use the toilet. Also, the Joint Task Force Guantanamo (JTF-GTMO), which operates the detention camps had, by Wednesday – the next day- provided the special toilet seat to Al-Tamir’s holding pod, and the Base Emergency Engineering Force (BEEF) had been notified of the water issue.

Judge Reuben found that the government had not been deliberately indifferent and denied the Defendant’s motion.  Despite this ruling, Thurschwell continued to interject his concerns for Al-Tamir’s condition as the hearing continued.  Judge Reuben and the government have agreed to conduct shorter hearings with more breaks as an accommodation for Al-Tamir’s disability, which causes him increased pain with prolonged sitting.

Defense motion to compel the government to produce intelligence reports

Judge Reuben also heard argument on the defense’s motion to compel the government to produce intelligence reports regarding its interrogations of Mr. Al-Darbi.  Major Miller explained the interplay between intelligence documents known as HCRs (Human Collection Requirement), SDRs (Source Directed Requirement), and (IIRs) Intelligence Information Reports.  She explained that while the government had provided IIRs which provide information of intelligence value to Department of Defense customers, it had not produced the underlying SDRs, which show specific collection requirements for interrogators examining detainees like Al-Darbi, or HCRs, which would reveal the questions asked by interrogators and whether Al-Darbi refused to answer them.  According to Miller, these documents would provide objective facts, such as lie detector tests, as to whether Al-Darbi was telling the truth, and whether he had been asked about Al-Tamir during the earlier interrogations.  Marine Captain William DePue presented the government’s argument that the SDRs and HCRs were not discoverable or relevant, were cumulative to information contained in IIRs, and that the defense had not met its burden to permit the court to compel the production of those documents.  Again, Judge Reuben took these arguments under advisement.

During the argument on the defense’s motion to compel, the Chief Information Security Officer (CISO), who was seated to the judge’s right, leaned over and had an off the record conversation with the judge.  The CISO has the ability to press a button during the proceedings if he believes that classified information is being discussed, which would cause a light at the judge’s stand to illuminate, monitors to go blank, and the audio feed to the gallery and remote viewing sites, which runs on a 40 second delay, to be cut.  Thereafter, the judge asked each side if proceedings should be closed under Military Rule of Evidence 513.  Both the government and defense replied that there was no cause for closed proceedings.  This classified button was not pressed at any time during the proceedings we witnessed this week.

Wednesday’s hearings begun at 1 p.m., as Al-Tamir had a 10 p.m. MRI on Tuesday night.  While the judge wanted to press ahead on the arguments regarding Al-Darbi’s psychological records, he finally relented to Thurschill’s requests that the hearing end at 5:30 p.m. due to Al-Tamir’s increased pain from prolonged sitting, and the resulting encumbrance upon his ability to participate in his own defense.

Development’s in the case during the rest of the week

We and counsel involved in the case all arrived in court on Thursday morning, expecting arguments on pending motions to resume.  We were told, however, that Al-Tamir had refused to come to court due to the pain he was experiencing, and also did not waive his right to be present for the proceedings against him.

Friday’s hearing was also cancelled.  Later on Friday, we learned that a neurologist had examined Al-Tamir and concluded that emergency surgery was necessary.   Judge Reuben met with counsel for the parties at 10:30 p.m. Friday night in what is known as a 802 conference, for Rule 802 of the of the Rules for Military Commissions, to discuss how to proceed considering these developments.  As a result, the commission will convene in open session on Sunday, February 4 at 9:00 a.m., and the neurologist will be present.  We, the NGO observers at the military commissions this past week, will all look forward to reports from the next set of NGO representatives on this coming week’s developments at the military commission, as we have today (Saturday, February 3) returned to Washington, D.C.  IU McKinney law student Denton Monteith will represent the school’s Military Commission Observers Project this week.

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The Military Commission Administration Building at Guantanamo Bay, Cuba

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2019 IU JD/MBA Candidate Denton Monteith flew into Gitmo on the same United Airlines plane I flew out on Sunday

 

U.S. Military Commission Hearing against Hadi al Iraqi/Nashwan al Tamir

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Our group of NGO Observers at “Camp Justice” on the Guantanamo Naval Station

Yesterday I attended a hearing held in the military commission case against Hadi al-Iraqi, who was referred to by both the military judge, Marine Colonel Paul Reuben, and defense lawyer Adam Thurschwell as Mr. Al Tamir, the name the defendant claims.  I and observers representing five other non-governmental organizations (NGOs) and our Guantanamo escort entered the court complex through a security tent and a walkway lined with chain-link fencing covered with black cloth to provide shade and protection.  There was additional security at the entrance to Courtroom II itself, and we then received our seat assignments in the gallery.  The six of us sat in the second and third rows, and Miami Herald journalist Carol Rosenberg sat in the first row.  There was a retired serviceman observing, as was a woman in an area reserved for victim family members (VFMs).  There is a blue curtain which can be drawn to separate VFMs from other observers, but it was not drawn today.  A uniformed serviceman sat in the middle of the gallery.

The gallery has five large windows looking into the courtroom, each with a television monitor at the top.  The monitors display the person speaking, whether the judge, defense or government counsel, and they and the audio work on a 40 second delay.  We were informed that if classified information is mentioned, a police-type light to the left of the judge would turn on, the monitors and audio would stop, and white noise would begin.  This did not occur while we were at the court today.  Cameras in each corner of the gallery kept watch upon observers, who were warned that decorum would be maintained as if we were seated in the courtroom.  The proceedings were also broadcast by closed circuit television to sites at Fort Meade, Maryland and Fort Devens, Massachusetts.

The Courtroom

Inside the courtroom are six tables for each the defense and prosecution teams.  This was set up to accommodate the six original 9/11 Defendants.  Charges against one of the six has since been dropped.  A chair on the left side of each defense table is equipped with “shackle points” – a chain about a foot long secured to the floor to which Defendants may be shackled.  These shackle points have not been used on Al-Tamir since he became incapacitated, but are still used on other Defendants. About nine individuals were on each side of the aisle, including an interpreter for Al-Tamir, defense and government counsel, and their staff.

Nashwan al-Tamir, now in his 50s, was transported into the courtroom in a wheelchair by servicemen and wore an upper body brace extending to just below his chin to immobilize his neck.  He has undergone four surgeries in the past four months, and hearings set in October and December were postponed.  According to his lawyers, Al-Tamir suffered from degenerative disk disease before he was captured in Turkey in 2006, allegedly trying to reach Iraq on orders of Osama bin Laden.  He spent 170 days in secret CIA custody before being transferred to Guantanamo in 2007 and had for years complained of back pain.  In 2014 he was charged with being a high-ranking member of al Qaeda Iraq and liaison with the Taliban, and is accused of being responsible for deadly attacks in Afghanistan and Pakistan in 2003 and 2004.  If convicted, he faces a life sentence.

Tuesday’s hearing

This week’s hearings are to address defense motions requesting the government provide medical evidence requested in discovery, for a medical expert on Al-Tamir’s competence to participate in his own defense, for an order compelling access to the accused by his counsel, and an order to prohibit his forcible extraction from his quarters.  The arguments Tuesday covered only the first two of these motions.  Defense counsel Thurschwell, a Pentagon paid civilian, argued that Al-Tamir needs accommodation for his disabilities, including a hospital chair for use when consulting with his lawyers at camp 7, where he is held, a special toilet seat which reduces the pain he experiences without it, a bottle to urinate in without exacerbating his pain, and for shorter hearings with more breaks.  Thurschwell argued that Al-Tamir’s pain was exacerbated by his captors’ denial of necessary medical care until last fall, when he had become incontinent and was in danger of paralysis.

The government’s arguments were presented by Lieutenant Commander B. Vaughn Spencer, who recently became a civilian.  Vaughn did not have clear answers as to why Al-Tamir was not provided with the devices he had requested to accommodate his disabilities, or why the current senior medical officer (SMO) who was to testify about Al-Tamir’s condition did not appear.  He expressed confusion as to whether the defense was requesting abatement, or postponement of proceedings, or accommodation so that proceedings could continue, and noted that the government had no objection to Al-Tamir’s requests for accommodation.

Thurschwell pointed out that the Defendant was present and was willing to participate to the extent he could receive accommodations that could prevent him from experiencing debilitating pain.  The defense requested its own medical expert to assess Al-Tamir’s competence to participate in his own defense, considering a deposition to perpetuate the testimony of a government witness is set to take place next week, and for the court to order the Joint Task Force (JTF) in charge of Al-Tamir’s confinement to provide the requested devices. Each side presented arguments as to the applicable legal standards under the Military Commission Act of 2009 and precedent for assessing a defendant’s capacity to participate in his own defense at this pre-trial stage of proceedings, and the defense’s entitlement to an expert.

While Judge Reuben wanted to address several other issues yesterday, he granted the defense requested an end to the hearing due to Al-Tamir’s inability to relieve himself without the requested devices, while taking all other motions under advisement.  As Mr. Tamir was set to undergo an MRI last night at 10 p.m., today’s hearing will not begin until 1 p.m.

 IMG_0063     NGO Representatives at work in the NGO Resource Center

 

Paul Logan, JD ‘94

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law