Abd al Hadi al Iraqi

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

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 absence as discussed under R.M.C. 804(c).

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

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

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

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

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

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

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

Nashwan / Hadi Suffers Further Back Spasms Causing More Hearing Delays

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

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

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

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 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 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”). Read more about the MCOP and Nashwan / Hadi through my earlier blog posts 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 joined 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 the U.S. employs this equipment according to a series of multi-million dollar expansions proposed for Guantanamo under the Trump administration in 2018, I am still determining.

After passing through a series of security checks to enter the courtroom site, we joined media representatives and military personnel in the Guantanamo courtroom viewing gallery to 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. 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 expected this delay through a prior review of the Know Before You Go To Guantanamo Bay guide. One of my escorts has since informed me that the delay seeks to ensure classified information is not released into the gallery and to the broader public.

At 8:57 a.m., a U.S. Army internal security officer briefed gallery attendees 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 visible through gallery cameras, and that we were forbidden to cause any distractions during the hearing. He told us that we were free to exit the gallery during proceedings or recess and take our personal belongings with us upon exiting. He told us that the Office of Military Commissions (OMC) would not assume responsibility for our possessions and that the OMC would destroy any materials left in the gallery after the court hearing concluded. The courtroom remained nearly empty, with only a few military personnel moving throughout.

At 9:02 a.m., another Army internal security officer informed us that the court indefinitely delayed the scheduled hearing and that it may “not occur at all.” He told us we could exit the court site and return later should the hearing be rescheduled. As we left 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 at Guantanamo.

My fellow NGO representatives and I remained near the court site as directed while waiting for further updates on the delayed proceedings. By 12:00 p.m. (noon), I became restless as we continued to wait for updates.

Clamoring for news, I fruitlessly searched through various web resources, including the Office of Military Commissions (OMC) website and the Miami Herald, which often feature reports and articles regarding commission proceedings published by Ms. Carol Rosenberg. Ms. Rosenberg is an award-winning and widely printed reporter of Guantanamo happenings and was among the media representatives present with me in the courtroom gallery when the internal security officer announced the hearing delay.

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, the court delayed its hearing again, now 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.

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).

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.

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

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.

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 20^th 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 20^th 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

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

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.

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.

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

3^rd 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.

Guantanamo Bay Fair Trial Manual – Volume I (pink) and Guantanamo Bay Fair Trial Manual – Volume II: Appendices (blue)

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

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.

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

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.

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

Preparing to Observe

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

Arrival at Guantanamo Bay’s “Camp Justice”

Tents where we live at Guantanamo Bay’s Camp Justice.

[By Paul Logan. Posted by G. Edwards]

We made it

After a long day of traveling yesterday (Sunday, January 28), we arrived at Guantanamo Bay, Cuba’s, “Camp Justice,” which is a “tent city” where I and other representatives of non-governmental organizations (NGOs) will live for the next week. We are here to monitor U.S. military commission hearings against Hadi al Iraqi (also known as Nashwan al Tamir), who is accused of perpetrating war crimes in Pakistan and Afghanistan in the early 2000s. I am representing the Military Commission Observation Project of Indiana University McKinney School of Law, and traveled here with five observers from other NGOs: Zoe Weinberg (National Institute of Military Justice – NIMJ); Sarah Ruckriegle of Georgetown Law School; Kelly Mitchell (American Bar Association); Eric Helms (Human Rights First); and retired New York State Judge Kevin McKay (City Bar of New York).

Our flight to Guantanamo

We had an early start, as our “show time” at Andrews Air Force Base outside Washington was at 6 a.m., for a flight scheduled for 10:20 a.m., which actually took off shortly after 11. We observers were told to sit together in three rows near the back of the chartered National Airlines plane. Others on the plane were seated in groups in different sections, including the judge and his staff (in the very front of the plane), employees of the Office of Military Commissions staff, defense lawyers, prosecutors, staffs of the prosecution and defense, court reporters, translators and interpreters, security officials, and Guantanamo Bay Press Corps Dean Carol Rosenberg of the Miami Herald. While victim’s and victim’s family members and panel or jury members are sometimes on these flights, I understand none of these were on our flight today. Also on this flight were defense lawyers who came down to visit their clients who are prisoners who are not involved with the Hadi / Nashwan al Tamir case we came to monitor.

While there were some rough patches, it was generally an uneventful and uncrowded flight. The 757 can fit about 120 passengers, and there were a little over 80 on board, so each of us had three seats. I finished reading my copy of Know Before You Go to Guantanamo Bay, and began to draft this blog post. The manual, produced by Indiana’s Professor George Edwards, offers many suggestions on things to do when not involved in Military Commission activities, as well as how we can prepare substantively for our Gitmo mission. We had a very nice view of some islands out of my side of the plane, which I at first supposed to be the Bahamas, but because we were still a ways from Cuba, may have been the outer banks of North Carolina.

It was cool and rainy in Washington this morning and was sunny and beautiful here at Gitmo when we arrived after our 3-hour flight. After taxiing on the short airstrip on the leeward side of Guantanamo Bay, Naval Station authorities checked documents of the passengers. After we went through security, we met one of our escorts who will transport us around “the island,” as those here refer to the base, and boarded a ferry to cross from the across Guantanamo Bay from the leeward to the windward side of Gitmo (as the Naval Station is sometimes called).

Reaching Camp Justice

We NGOs were transported to our homes for the next week — tents in “Camp Justice”. We then made our first trip to the Expeditionary Legal Complex (ELC) to receive our badges that we have to wear when we go to court. The ELC complex contains Courtroom II in which cases are heard against high value detainees (HVDs), as well as judges’ chambers, trailers for the defense and prosecution, court offices, witness trailers, and holding areas for the detainees. We received a tutorial on not taking any photographs of any part of the ELC, and not bringing electronic devices to Court.

Evening

As our evening escort drove us to dinner, he received a phone call notifying him that the hearings set for today (Monday the 29^th) will be closed to observers, presumably because classified information will be discussed. We all knew that there was a possibility of closed hearings, but we were disappointed that hearings on the first day would be closed, as we are anxious to do what one of the things we came here to do — observe the proceedings. We all understand that sitting in the courtroom is only one of the things that NGOs do. Our NGO mission has 6 parts to it: We are here to attend, observe, be observed, analyze, critique, and report on all we experience, both inside and outside the courtroom. We look forward to talking with prosecutors, defense counsel, Office of Military Commission officials, Carol Rosenberg, and others whose experiences will enlighten us and help us to do our jobs as monitors.

What we did Monday when Court sessions were

Paul Logan - Radio Gitmo - with microphone

At Radio GTMO

closed

This morning our escorts took us to visit Radio GTMO, which operates three radio stations broadcast from the base. I purchased a bobblehead of Fidel Castro displaying the radio stations call letters on it. Thereafter, we took a look at Camp X-ray, where prisoners were first held here in 2002. Some may recall the photos in the news of detainees

An Igauna at the beach

in orange jumpsuits held in primitive outdoor “cages” surrounded by chain link fence and barbed wire. Several wooden guard towers ring the camp. Camp X-Ray has been closed for some time. We were informed that it has not been taken down as it is evidence in an ongoing case.

We then took the 2½ mile ridge line hike which has some dramatic vistas of the island, and saw a very large iguana. After our hike, it was time for some R&R at Glass Beach, not far from Camp Justice. We had another iguana visit on the beach.

A view from the Ridge. That’s Guantanamo Bay in the background. You can also see the part of Cuba over which the Cuban government exercises jurisdiction, outside the U.S. Naval Station at Guantanamo Bay.

We are all looking forward to finally seeing the inside of Courtroom II tomorrow, and finally observing the proceedings against Hadi al-Iraqi / Nashwan al Tamir.

Paul Logan, JD ‘94

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

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

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

I have been in Guantanamo Bay, Cuba since Sunday, August 13th, 2017 serving as an NGO observer with the Indiana University McKinney School of Law’s Program in International Human Rights Law. The program is approved by the Pentagon to send observers to view proceedings that are a part of the military commission system. Other schools and organizations that have an interest in what goes on in GTMO also send observers. I am here with five other observers from four organizations and one other law school.

Morning Session Deposition – Day 2, Wednesday August 16, 2017

The prosecution called Guantanamo prisoner Ahmed al-Darbi to the witness stand to testify in the military commission case against Hadi al Iraqi, an alleged al Qaeda commander. al-Darbi pleaded guilty in 2014 to charges related to the 2002 attack on a French oil tanker, and as a part of that plea deal agreed to testify when called upon by the prosecution.

An issue of the direct examination on both days was that the prosecutor asked numerous complex and compound questions that appeared to be lost in translation and objectionable.

Unlike the first day of the deposition when Hadi al Iraqi was present, on the second day, he voluntarily waived his appearance and did not attend. al-Darbi looked very much like a business professional dressed in a dark gray suit, light gray tie, white shirt, and nice watch.

The second day of the deposition began with the prosecutor asking al-Darbi about Hadi’s alleged activities at a guesthouse/headquarters building in Kabul, Afghanistan. al-Darbi described about how Hadi would go to the communications room to check on the latest developments from the front and later go to the front himself to check on his fighters. The prosecution elicited from al-Darbi information in an apparent attempt to paint a picture of Hadi as an active al Qaeda commander, the extent to which he commanded the defense will most likely dispute. al-Darbi testified he last saw his former commander Hadi al Iraqi in the year 2000 at the guest house in Kabul.

Struggles in Recounting Torture

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

The afternoon session began with al-Darbi’s account of being taken in to U.S. custody, first at Bagram Airfield, Afghanistan, and later at Guantanamo Bay, Cuba. During this portion of the testimony, al-Darbi’s body language changed drastically. Instead of leaning towards the microphone when giving sometimes lengthy answers at a normal volume, when speaking of his captivity he leaned back in his chair and gave short answers at a low volume. The only time he gave a long answer during this portion of his testimony was when he stated that remembering the details about the things that happened to him after he was captured was more difficult than the experiences themselves.

al-Darbi appeared visibly to have had a difficult time recounting his treatment at Guantanamo Bay. He testified to having had to endure “stress positions,” sleep deprivation, physical assault (to include pushing, hitting, and having chairs thrown at him), humiliating tasks, and being forced to wear bunny ears and a diaper on his head.

The most difficult line of questioning came when al-Darbi described an incident while at Bagram Airfield in which his interrogator, Army Private First Class Damien Corsetti exposed his private parts and put them in al Darbi’s face. Though by all accounts he lived up to his nicknames as “The Monster” and the “King of Torture,” notorious interrogator Corsetti was acquitted of charges relating to his abuse of detainees.

The strategy of the prosecution in the latter portion of the second day seemed to be to bring out torture on direct examination because there is little doubt the defense will question his ability to recall the over 20 people he previously identified due to the time that has passed as well as the physical toll of the torture. The prosecution also attempted to blunt the impact of it later by asking questions reiterating the free and voluntary nature of his plea deal.

Meeting with Chief Defense Counsel, Brigadier General John Baker

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

The NGOs had the opportunity on Thursday, August 17, 2017 to meet with the Chief Defense Counsel, Marine Corps Brigadier General John Baker. Earlier in the week we had met with the Chief Prosecutor, Army Brigadier General Mark S. Martins. BG Martins released a statement on August 19th about the hearings that occurred the week of August 14th. That statement can be read here.

BG Martins appears to be very much hands on with the prosecution of each of the military commission cases his office is responsible for prosecuting. He plays a direct role in the direction the cases take both from a staffing standpoint as well as a legal strategy. In addition, because of his background as Rhodes scholar, instructor at the Center for Law and Military Operations, and being widely published in professional journals, his meetings are significantly more polished, though not necessarily better. He speaks much more fluidly and longer winded in a manner that shows he speaks about the military commission system and law in general in the political arena.

BG Baker on the other hand is, as he characterized his role, more of a manager. He views his job as getting the tools each of his defense teams state that they need to do their job. He does not personally represent any of the clients, though he does seem to meet with them on a regular basis. One of the challenges he spoke at length about was the personnel issues that both he and his adversary, BG Martins have to deal with unique to the military. Most military attorneys, or JAG officers, are assigned for 2-3 years. In order for military personnel to advance their careers they cannot stay in place for long periods of time, and because these military commission cases in some instances last for a decade or more, staff continuity in the case is a constant challenge. Ultimately, the client suffers when the staff members are constantly turning over and the careers of the staff members suffer if they stay in their positions for too long.

BG Baker responded to our questions much more candidly and off the cuff. He, unlike BG Martins, gave us explicit permission to attribute things to him, as well as quote him. BG Baker spoke frankly about how he views the military commission system as a “failed experiment” and how he sees no way in which these cases will survive appeal. Though he says he is a firm believer in the general idea of military commissions, he sees “zero benefit” to trying the cases in this iteration of the military commission system.

On Friday of last week, the judge in the Hadi al Iraqi case, Marine Corps Colonel P.S. Rubin issued an order suspending the CCTV feed of the al Darbi deposition to Fort Meade. I asked BG Baker directly if he had received an explanation about why feed was suspended. He offered a theory that the deposition was not a court proceeding and therefore not under the authorization of a protective order issued by the judge, to send the feed to Fort Meade. The issue of whether or not to allow a deposition to be transmitted to Fort Meade has come up before. In the al-Nashiri case, the judge ruled the deposition of al-Darbi was to be completely closed. This meant no NGO observers could be present and the CCTV feed was suspended. In the Hadi case, the judge ruled NGO observers could be present, but still no CCTV feed.

BG Baker recognized the unprecedented nature and importance of the presence of NGOs at Guantanamo Bay hearings. He said to tell the world of about what happened here. That’s a responsibility I felt like each NGO observer has taken seriously in this unique and fascinating week.

Defense Team BBQ

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

Two members Hadi’s defense team invited all of the NGOs to the temporary house where they were staying for a BBQ. They cooked great burgers and hotdogs, and had a wide variety of beverages. Each NGO observer reported having a number of fascinating conversations with individual members of the defense team, to include the lawyers, intelligence personnel, investigators, and paralegals.

In September 2015, I traveled to Guantanamo Bay to observe a hearing for Hadi’s case in which he fired his military defense counsel. Fast forward to August 2017 and Hadi finally seems to have a solid defense team in place. According to members of this team, he chose Navy Commander Aimee Cooper to lead his defense, though she is not the highest ranking member of the team. The members of the defense team I spoke to report having a really good relationship with their client. This bodes well for his defense and seems to solidify the chance that he will have the rights afforded to him (as outlined in the Guantanamo Bay Fair Trial Manual) protected to the greatest extent possible.

Concluding Remarks

I want to thank each of my fellow NGO observers for an incredible week. Each shared their unique insights and made the experience one I will never forget.

I will continue to follow this case as it moves slowly forward in the hopes that someday justice will be served in a way that does not undermine the values America supposedly stands for.

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

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

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

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

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

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

First Day of Court

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

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

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

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

Morning Court Session

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

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

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

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

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

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

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

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

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

A Shortened Court Session

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

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

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

Meeting with Chief Prosecutor, Brigadier General Martins

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

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

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

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

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

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

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

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

First Attempt – Arrived One Day Early For My Flight

Andrews-Passenger-Terminal-e1455778259356

An empty Passenger (PAX) Terminal at Andrews.

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

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

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

Public hearing?

3BD0D12700000578-4085516-Ahmed_Mohammed_al_Darbi_41_He_was_an_instructor_at_the_al_Farouq-a-179_1483646333475

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

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

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

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

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

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

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

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

Second attempt – The Correct Day of My Flight

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

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

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

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

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

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

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

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

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

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

Where the Case Stands

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

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

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

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

August Hearing Session

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

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

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

Preliminary Thoughts

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

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

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

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Going Back to Guantanamo Bay Today

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

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

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

laptop and boarding pass -- april -- Andrews

Laptop, passport & boarding passcaption

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

Boarding Pass -- alone - Andrews -- April 2017

Boarding pass. Note the price.

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

The defendant — Nashwan al-Tamir / Abd al Hadi al Iraqi

The defendant – Tamir / Hadi

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

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

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

Our Pre-Trial Hearing Week at Gitmo

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

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

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

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

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

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

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

At Joint Base Andrews Flying to Guantanamo Bay, Cuba

Sunrise over the snowy Joint Base Andrews Airstrip.

[Posted on behalf of S. Willard]

This morning (Sunday the 8th of January) I am traveling to Guantanamo Bay, Cuba to serve as an observer / monitor of criminal hearings in a U.S. military commission case against Abd al Hadi al Iraqi, who is an alleged high ranking member of al Qaeda Iraq and liaison with the Taliban. The U.S. has charged with war crimes resulting in deaths.

I am an Indiana University McKinney School of Law student on mission representing the Indiana University Program on International Human Rights Law’s (PIHRL) Military Commission Observation Project (MCOP). As an observer / monitor, my role is to attend, observe, analyze, critique and report on the military commissions – both the substance and the process.

My passport and Gitmo flight boarding pass.

I arrived at Andrews Air Force Base, just outside of Washington, DC, at 5:00 a.m. for my flight to Cuba, which is supposed to depart at 8:00 a.m. I checked in for my flight, presenting my passport, my Military Orders, and my APACS (which I explain in an earlier blog). It looks like the flight is on schedule this morning.

I met my fellow NGO observers from different human rights groups (NGOs), and we are almost ready to board our plane to take off for Guantanamo Bay, Cuba from Andrews Air Force Base (which is the home of Air Force 1). We were told that the travel will be about 3 hours and 15 minutes.

My boarding pass for Gitmo, & my yellow Guantanamo Bay Fair Trial Manual: Excerpts.

I have my boarding pass in hand (see the photo) and my yellow Guantanamo Bay Fair Trial Manual: Excerpts copies of which I distributed to the other observers.

I took a few photos at Andrews this morning. I will post additional photos and substantive posts when I arrive at Guantanamo Bay. Because I am having trouble with wifi at Andrews, I am asking Professor Edwards (the Indiana program founding director) if he will post this Andrews Post for me.

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

(Posted by G. Edwards on behalf of S. Willard)

My Scheduled Trip to Guantanamo Bay

My name is Leontiy Korolev and I am very excited by the possibility of traveling to Guantanamo Bay to observe hearings in the U.S. Military Commission case against Hadi al Iraqi on 26 and 27 January 2016.

I graduated from Indiana University McKinney School of Law a few years ago, and now work as an attorney for the State of Indiana. In Law School, I was president of the International Human Rights Law Society and had the honor of receiving a scholarship to travel to Geneva, Switzerland as an extern for the Program in International Human Rights Law. For a while after Law School I was a research assistant for the Program in International Human Rights Law, and assisted with drafting and researching parts of Guantanamo Bay Fair Trial Manual.

Case Background

The Office of the Military Commission provides background information on the Guantanamo Bay Trials including any official documents that have been released to the public. The Charge Sheet is an interesting read and lays out the U.S. Government’s charges against Hadi al Iraqi. The specific charges are found on pages 10-12 of the Charge Sheet dated 02/10/2014. The five charges allege that Hadi al Iraqi committed the following crimes: (1) denying quarter, (2) attacking protected property, (3) using treachery or perfidy, (4) attempted use of treachery or perfidy, and (5) conspiracy. It is important to note that there are numerous news sources available online and elsewhere about the allegations and Hadi al Iraqi; the Charge Sheet only provides the Governments allegations.

But learning about Hadi is only part of my preparation. I also have to learn about what my responsibilities are as an “observer” or “monitor”.

The Guantanamo Bay Fair Trial Manual contains a chapter about the Role of the Observer / Monitor. I understand that I am to attend, observer, analyze, critique and report on U.S. Military Commission hearings. I am looking forward to digging into the Manual and learning more about the role of the Observer/Monitor. Professor Edwards provided the following summary of the role of the Observer/Monitor: “We are observers, and have an opportunity to see, hear and learn things that other stakeholders are not privy to. We are the eyes and ears into the Commissions for the outside world. If we do not post information, outsiders will not know. We have undertaken to send people to Ft. Meade & GTMO in great part to provide insights for those who cannot go. So, if we do not post, stakeholders and others of interest do not find out.”

Approval Process

There are a handful of blogs below that provide some background on the Hadi al Iraqi trials, however I do think that think there may be at least a few people interested in reading about how one is able to travel to Guantanamo Bay and the steps that were taken to apply as well as the steps that needed to be taken to “finalize” travel. Finalize is in quotes because I write this, unfortunately knowing that the hearing could be continued at any moment, perhaps even during my drive to Andrews Airforce Base. Of course it could also be continued as I fly on a military jet to Cuba, but I think that alone would be an experience, so it wouldn’t be the end of the world. The trial could also be continued after I land, which would then leave me with a few days in Cuba, which is not the worst thing in the world either! UPDATE: the hearing was actually cancelled the day before I was set to travel, but I will cover the cancellation in a future post.

I have scoured my inbox to see the exact date of my application and it looks like my first application to participate as an observer in the Military Commission Observation Project of the Indiana University McKinney School of Law’s Program in International Human Rights Law was in March 2015. I remember waiting and hoping for the opportunity but as time went by, I was convinced the opportunity would escape me. It had been months since I thought I may yet have the chance to observe the Guantanamo Bay Trials in person, at Camp Justice.

The process has been a practice in managing expectation and curbing my enthusiasm. I waited to hear back after applying the second time, but did not hold my breath. Shortly after submitting the application I was informed that I had been nominated to travel to Guantanamo Bay for the Hadi hearings. There was a caveat, the nomination did not mean anything unless I was approved to go by the Pentagon. I don’t know about most of the readers, but I have never had to obtain approval from the Pentagon to do anything before. Perhaps Pentagon approval should have been a given, but in my mind it certainly was not.

It seems like time stood still for the next 12 days. The approval email finally arrived and I was given two weeks to submit a handful of additional documents to the Pentagon. This may seem like plenty of time, but the approval came on December 23. Not only were the holidays here but there was a very specific submission process. The documents followed a complicated path. The Pentagon sent them to me, I had to fill them out, scan them and send them to Indiana University McKinney School of Law’s Program in International Human Rights Law (“PIHRL”). Those documents were then reviewed by PIHRL and sent to IU Counsel on the IUPUI campus who reviewed and sent them to lawyers in Bloomington. The lawyers in Bloomington reviewed the documents and sent them to the Indiana University Treasurer. The Treasurer has the authority to execute the documents. Once executed they were sent back to Bloomington Lawyers, the IUPUI lawyers, PIHRL, back to me and finally to the Pentagon. I received the documents back from PIHRL on January 4^th, one day before the submission deadline given to me by the Pentagon. A few more email exchanges followed and I was able to submit the documents to the Pentagon before the deadline. I’m sure this all seems more dramatic to me than to the reader (hopefully readers), but given my excitement to attend the hearings, I think it is understandable.

Conclusion

Although the hearings were cancelled the day I was set to begin travel, this has been a learning experience and I hope to receive another opportunity to observe and report in the future.

Guantanamo defendant Hadi al Iraqi Fires His Legal Counsel

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

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

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

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

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

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

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

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

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

Candid Meeting with Hadi’s Former Defense Counsel LTC Jasper

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

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

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

Post Hearing Activities

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

One of the many beautiful beaches at Guantanamo Bay, Cuba

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

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

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

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

Finally headed to GTMO for Hadi al Iraqi Hearings

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

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

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

JAB to GTMO

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

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

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

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

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

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

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

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

Tour of the Expeditionary Legal Complex

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

Tomorrow’s Hearings

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

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

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

The USO in the passenger terminal provided much needed fresh coffee

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

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

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

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

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

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

Briefing by Chief Prosecutor Brig. Gen. Martins

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

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

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

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

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

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

Revised Hadi Hearing Schedule

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

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

National 9/11 Pentagon Memorial

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

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