al Darbi

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

Deposition of Ahmad al-Darbi in the Guantanamo Military Commission case against Hadi al Iraqi

I have been in Guantanamo Bay Cuba since Sunday as an NGO observer as a part of Indiana University McKinney School of Law’s Program on International Human Rights Law to view the hearing session for the Military Commission case against Abd al Hadi al Iraqi (or Nashwan al Tamir).

NGO observers in front of the Camp Justice sign before the first day of the Ahmad al-Darbi deposition.

The court session yesterday (Monday) involved several defense motions. Two were argued in the public setting, in which the NGOs and victim’s family members were allowed to be present. A third motion was not heard at all, and the fourth was heard (along with classified parts of the first) in closed session, in which all members of the public (NGOs, victims, and media) were not allowed to be present for.

Morning Deposition Session – Tuesday, 15 August 2017

3BD0D12700000578-4085516-Ahmed_Mohammed_al_Darbi_41_He_was_an_instructor_at_the_al_Farouq-a-179_1483646333475

Ahmad al-Darbi in an undated Red Cross photo obtained by the Miami Herald.

The prosecution called Ahmed al-Darbi, a Saudi born admitted jihadist to the stand to be deposed. al-Darbi pleaded guilty and promised to testify against Hadi, but because al-Darbi hopes to be repatriated to his homeland of Saudi Arabia soon, and will not be available to testify against Hadi in person at Hadi’s trial, his deposition testimony today will be preserved to be possibly used against Hadi at his trial. Hadi al Iraqi was present for the first day of testimony. al-Darbi, wearing a gray suit, white dress shirt, and tie, sat calmly speaking with a soft even tone. Unlike in the picture to the right, he was clean-shaven, wore nicer glasses, and had short slightly gray hair.

Hadi al-Iraqi was seated at the left end of the first defense table in the courtroom wearing a white robe, white turban, and black vest. From my vantage point, I did not see if the two men looked at each other before or at any point during the testimony.

Six of us NGO observers were present in the gallery, along with several military servicemembers, family members of some of the victims, news media, and numerous military police. Veteran Guantanamo Bay military commission reporter for the Miami Herald, Carol Rosenberg published a piece a few hours after the conclusion of Tuesday’s session. That article can be viewed here.

The deposition was recorded for possible use by the prosecution at trial of Hadi al-Iraqi. al-Darbi, testifying in Arabic, but seemingly understanding some English through his interactions with the deposition officer, had the assistance of four interpreters that rotated throughout the testimony.

After several hours of foundation and background, al-Darbi identified Hadi as his former commander and stated that he recognized Had al Iraqi from a guesthouse in Afghanistan.

Presiding judge, P.S. Rubin, served as the deposition officer responsible for ruling on any raised objections. Throughout the five-hour deposition session, the defense raised many standard objections to the form of the questions the prosecutor asked and the answer elicited from al-Darbi. The defense objected to the prosecution asking leading questions, speculative answers from al-Darbi, being unclear about the time frame in which he was speaking about, and the non-relevance of large portions of his testimony.

Osama bin Laden, notorious leader of al-Qaeda.

The narrative the prosecution tried to convey, though disjointed and hard to follow at times throughout the entire morning session, painted a picture of al-Darbi as a committed (at least initially) jihadist who had numerous interactions with high-level al-Qaeda and Taliban leaders, to include Osama bin Laden.

al-Darbi testified that as a young man from a troubled non-devout Muslim family, as a teenager he found reassurance, peace, and comfort at mosque. From there he became very much a believer in jihad, the highest rank of worship. He stated that to him jihad meant fighting infidels in self-defense, not giving into desires of soul, defense of home and property, and the defending of honor.

The Bosnian War (1992-1995) claimed the lives of over 62,000 Bosniaks, or Bosnian Muslims.

He testified that following his service in the Saudi army during 1992, with no other job in his hometown, he slowly began to find his calling as a jihadist. By 1994, he would find his first jihad fighting as part of a Bosnian Army unit against Serbian aggression towards his fellow Muslims. As a young jihadist, al-Darbi dreamt about becoming a martyr, and became depressed when he left Bosnia alive.

He stated that following his return from Bosnia, other jihadists recruited al-Darbi to go to
Afghanistan for training. By 1996, he received recommendations to finish his training at al-Qaeda camps, despite previously being unaware of al-Qaeda’s existence, but knew of Osama Bin Laden due to the prominent nature of his family. During this time he first met with Bin Laden. After several more months of training he was invited by al-Qaeda to fight with the Taliban.

Afternoon Session

Up until this point, the deposition focused on al-Darbi’s background and activities, as well as the identification of other fighters he interacted with, but made no mention, to my recollection, of Hadi al Iraqi. Much of the testimony in the afternoon finally began to focus on the nature of his interactions with Hadi.

al-Darbi testified that after he completed his training, he went to Kabul, Afghanistan. It is here at a guesthouse that he first saw Hadi al Iraqi. Despite all the training he had in advanced tactics and weaponry and his interactions with high level members of al-Qaeda, al-Darbi still appeared to be a fairly low level fighter, when he testified that his commander, Hadi al Iraqi, assigned him to be on a three-man tank crew. Al-Darbi saw Hadi on a daily basis during this period. In addition to the commander-subordinate relationship, they ate meals together while at the front lines.

One of the major purposes for the prosecution having al-Darbi even testify was to be able to positively identify the accused, Hadi al Iraqi. With all the background covered, the prosecution finally asked al-Darbi if he recognized the accused sitting at the defense table, to which he answered yes, though he looked older with a grey beard. When asked who he recognized the accused to be, he responded it was apparent to him that the accused is Hadi al Iraqi.

One of the strategies for the defense is to essentially say their client is not Hadi al Iraqi, but instead is Nashwan al-Tamir. During the deposition of al-Darbi, the prosecution specifically asked him if he ever heard Hadi al Iraqi go by any other name, or if he was aware of anybody else who had used that name. al-Darbi answered no to each of those questions and sated that he had never heard Hadi al Iraqi called Nashwan al Tamir.

This line of questioning and the questions dealing with al-Darbi’s interactions with Hadi made up a relatively small portion of the approximately four hours of today’s testimony. The prosecution introduced over 20 exhibits, most of which were photos of people he identified, other than Hadi al Iraqi. The NGOs, myself included, kept waiting for the prosecution to get to the point where al-Darbi would identify Hadi.

Unlike during a normal type of deposition when the deponent (the witness being deposed) is cross-examined immediately after direct examination, the defense will not have the opportunity to cross-examine al-Darbi at least until October. I would be interested to hear how the defense characterizes the name issue, as well as the relatively small number of interactions al-Darbi allegedly had with Hadi.

A transcript of the deposition is not available on the website of the Office of Military Commissions, and by all accounts it does not seem likely that it will be posted.

That concludes the summary of the first day of deposition of al-Darbi. The deposition will likely continue all day tomorrow. The next post will contain a summary of the day’s testimony as well as my overall thoughts on the two days.

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

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Public Denied Guantanamo Bay Hearing Broadcast at Ft. Meade, Maryland

Observers from Indiana at Ft. Meade monitoring a Guantanamo Bay Military Commission hearing. Observers were permitted to see / hear the video / audio feed from the Guantanamo courtroom. (file photo)

Public observers at Ft. Meade, Maryland were banned today from watching satellite broadcasts of a hearing being conducted in the Guantanamo Bay courtroom, even though public observers physically at Guantanamo were permitted to view the same hearing.

Pentagon pledge of open and transparent hearings

For many years U.S. Military Commissions have been held at Guantanamo Bay, Cuba, to try individuals charged with war crimes. The Pentagon has stated that these criminal proceedings should be open and transparent, and that to facilitate transparency the Pentagon permits a small number of Observers to travel to Guantanamo to monitor hearings. Observers typically represent human rights or advocacy groups, or academic programs. Observers serve as eyes and ears for the general public, who do not have the opportunity to travel to Guantanamo Bay to witness hearings.

Guantanamo_courtroom_gallery - with guard

The Guantanamo Bay Military Commission Courtroom, viewed from the spectator gallery. (file photo)

Observers sit in an enclosed spectator gallery in the rear of the Guantanamo courtroom, separated from the lawyers, prosecutors and defendants by a double-paned glass. Observers can see what is going on in the courtroom, and hear what is said.

The Pentagon also permits Observers to view Guantanamo proceedings by close-circuit television (CCTV) in a secure facility at Ft. Meade, Maryland. Observers at Ft. Meade can see what the cameras are pointing at in the Guantanamo courtroom, and hear what he Observers at Guantanamo hear.

Today, in what appears to be the first time, Observers were permitted to be present in the Guantanamo courtroom spectator gallery and monitor proceedings live, but Observers were not permitted to view those same proceedings by CCTV at Ft. Meade.

Thus, NGOs in the U.S. were effectively banned from monitoring today’s proceeding.

Why the ban?

It is unclear why Observers in the U.S. were banned from monitoring the hearings by CCTV at Ft. Meade today, while Observers could view the hearings live at Guantanamo.

Lawyers for the prosecution and defense apparently argued yesterday and over the weekend about the Ft. Meade ban. But, at least some of those arguments were held behind closed doors, with no Observer being permitted to hear. Though motion papers were filed related to the ban, those documents are subject to a security review and are not releasable to the public until after 14 days, and may not be released even then.

There are 5 Observers at Guantanamo this week, and they were able to hear some arguments about the Ft. Meade ban. Indeed, they were in the courtroom able to witness today’s hearings – the same hearings from which the Fort Meade Observers were banned.

Again, it is unclear what the convincing argument is that Observers can watch today’s proceedings live in the Guantanamo courtroom, but other Observers cannot watch today’s proceedings by CCTV at Ft. Meade.

My Ft. Meade experiences today

I arrived at Ft. Meade well before the scheduled start time of today’s hearing. The staff member who oversees the Ft. Meade viewing room was there, the lights were on in the room, and the miniature lockers were in place in the rear of the viewing room so Observers could store their cell phones which can’t be used during the CCTV broadcasts.

The minutes ticked away, and soon I learned that an official message had been received that the hearings would not be broadcast to Ft. Meade today, and that was by order.

Nevertheless, I waited to see if the hearing would open, with an announcement of closure made, before the transmission stopped.

Also, was there still a chance that the hearing would be transmitted in full? Just as an order is made, an order can be reversed.

In today’s case, the initial order regarding this week’s hearings was that Observers could monitor at Guantanamo Bay and at Ft. Meade. A subsequent order reversed the portion of the former order that permitted transmission to Ft. Meade. That reversal prohibited the transmission to Ft. Meade. That reversal could very well have been, and could still be, reversed, and transmission could have occurred today. It appears that it would only take a flip of a switch to begin transmitting from Guantanamo to Ft. Meade, and that such transmissions could be started at any point.

I continued to wait. The large video screen in front of the viewing room stayed dark and blank.

The person at Ft. Meade who oversees the technical side of the transmission sits in a different room of the same building where the viewing room is. I checked with that person, and was informed that there was no sign that the transmission would commence.

I left about 90 minutes into the hearing, with the screen still dark and blank, witnessing none of today’s testimony.

Options?

Yesterday I discussed in a blog post what my options were for being able to observe today’s hearings, particularly since I (and other Observers) chose not to travel to Guantanamo Bay this week in part because we were initially permitted to observe at Ft. Meade. We were informed 4 days ago (Friday) that NGOs would be banned from viewing the hearings at Ft. Meade. By then it was too late to catch the Sunday flight to Guantanamo Bay to view the hearings in person, sitting in the spectator gallery, along with the 5 Observers who are there. There are 14 seats reserved for Observers in the Guantanamo courtroom, so they had room for 9 more Observers this week.

Had I known last week what I know today, I definitely would have requested travel to Guantanamo Bay for this week’s hearings.

I am scheduled to deliver in Australia early next week, and I could have delivered (and still could deliver) that lecture by video rather than in person, freeing me to be at Guantanamo Bay for this entire week. Indeed, if I could go to Guantanamo tonight or tomorrow for the remainder of this week’s hearings that are not being transmitted to Ft. Meade, I would do so and deliver the Australia lecture by video.

Perhaps the Military Commission will permit Observers who were banned from viewing this week’s proceeding at Ft. Meade to view the videotape? The videotape cannot be classified, because if it were, then the 5 Observers at Guantanamo this week would not have been permitted to be in the courtroom for the hearing.

If the reason for the Ft. Meade ban was security associated with transmitting it stateside – maybe the possibility of interception / hacking – then I and other interested Observers could watch the videotape in a secure room at the Pentagon, or in a secure facility when we are next at Guantanamo Bay – and even possibly watch the video in the courtroom itself.

Also, if any victims and family members of victims (VFMs) are interested in watching the video, maybe they will be permitted to do so as well. Several FVMs were present in the Guantanamo courtroom for today’s hearings, but VFMs were denied the opportunity to observe today’s hearing at Ft. Meade, just as Observers were denied the opportunity to observe. Indeed, any member of the general public, aside from Observers, were similarly denied the opportunity to observe at Ft. Meade, though members of the general public are entitled to observe at Ft. Meade, as are Observers, VFMs, and media.

George Edwards

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

Prohibited from observing Guantanamo Bay hearing at stateside CCTV viewing facility

I was scheduled to travel to Ft. Meade, Maryland, the week of Monday, 14 August 2017 to monitor pre-trial hearings in the Guantanamo Bay U.S. Military Commission case against an alleged high-level al Qaeda member. The hearings were to be broadcast via-closed circuit television (CCTV) from Cuba to the Ft. Meade army base, where I have monitored hearings in all the active Guantanamo Bay cases. The U.S. government has stated that Guantanamo Bay (a/k/a Gitmo) proceedings should be open and transparent, and that CCTV broadcasts to Ft. Meade promote openness and transparency.

Now, unexpectedly, it is unclear whether the CCTV will operate this week, and whether I and others will be able to observe this week’s proceedings at Ft. Meade.

I was informed that the military judge in charge of the case has reversed an earlier ruling, and has now prohibited this week’s proceedings from being broadcast to Ft. Meade. His new ruling apparently permits 5 monitors who traveled to Guantanamo this weekend to observe / monitor the hearings while sitting in the spectator section of the Guantanamo courtroom. However, monitors such as myself who planned to observe from Ft. Meade are effectively banned from observing this week’s proceedings.

In addition, presumably members of other stakeholder groups – such as victims and their families (VFMs), media, and the public at large — are likewise banned from observing this week’s proceedings at Ft. Meade. And, again, the only observers permitted to monitor are those who happened to be on the plane to Guantanamo Bay this weekend.

What are this week’s hearings about?

The defendant in this week’s case is Mr. Hadi al Iraqi (Mr. Nashwan al Tamir), who is an alleged high-level member of al Qaeda who allegedly perpetrated war crimes. This week’s hearings are out of the ordinary in that they would not consist primarily of prosecution and defense lawyers arguing about a range of issues that are typically resolved pre-trial. Instead, this week would consist of testimony by a different Guantanamo detainee, Mr. al Darbi, who pleaded guilty and is cooperating with the government as a witness against Hadi. Ordinarily, a government witness would testify at the actual trial, and not during the pre-trial hearing stage. However, al Darbi is set to be repatriated to his home country soon, and is not expected to be available to testify live during the trial. This week’s testimony is in part a stated attempt to “preserve” al Darbi’s testimony (in the form of a deposition), which could be introduced against Hadi at trial.

My interests in this week’s hearings

I am a professor of international law, and founded the Guantanamo Bay U.S. Military Commission Observation Project / Gitmo Observer at Indiana University McKinney School of Law. (www.GitmoObserver.com) The Pentagon granted our Project status that permits us, as a non-governmental organization (NGO), to send observers / monitors to Guantanamo Bay and Ft. Meade to observe / monitor hearings.

Our Indiana Project is a independent and objective. We are not aligned with any side or party associated with the military commissions.

Among other things, we have developed the Guantanamo Bay Fair Trial Manual,* which independently and objectively examines rights and interests of all categories of Gitmo stakeholders, not just the rights of the defendants. The Manual explores rights and interests, under international and U.S. law, of the following stakeholder groups: defendants (as mentioned), the prosecution, victims and their families, media, witnesses, the Court and its employees, the Guantanamo Bay guard force, other detainees, NGO observers, and others.

Many of our Indiana observers have traveled to Ft. Meade and Guantanamo Bay to monitor hearings. We publish, among other things, blog posts on http://www.GitmoObserver.com.

The judge’s earlier ruling – Yes, NGOs can view at Ft. Meade this week.

The judge in the Hadi case initially ruled that the taking of al Darbi’s testimony, in the form of a deposition, would be open to the public. For purposes of this blog post, that meant at least two things:

NGO representatives would be permitted to fly to Guantanamo Bay, Cuba to be present in the courtroom’s spectator gallery so they can observe / monitor the deposition live; and
NGO representatives, and other members of the public, would be permitted to travel to Ft. Meade, Maryland where they could observe / monitor the deposition via close circuit television.

NGOs being permitted to observe at both Gitmo and Ft. Meade has been standard for hearings for years.

The Judge’s most recent ruling – NGOs are prohibited from observing at Ft. Meade this week

This past week, word circulated that the judge had issued an order prohibiting NGOs (and presumably prohibiting other stakeholders) from viewing the al Darbi deposition via CCTV at Ft. Meade. Apparently NGOs who traveled to Guantanamo this weekend could still observe the deposition live in the courtroom.

I have not actually seen the judge’s ruling, as his rulings, like all filed pre-trial hearing motion papers, are not ordinarily released to the public until the papers undergo a security check, a process that takes at least 14 days. However, word of the ban reached me and others.

Options for me to observe / monitor the hearings this coming week?

I had the opportunity to apply for an NGO observer slot to travel to Guantanamo Bay to monitor the hearings live this week from a seat in the courtroom’s spectator gallery. But, I decided not to apply in part because I believed I would be able to observe this week’s hearings at Ft. Meade.

Had I known that the judge would reverse his ruling and ban NGOs from observing the hearings at Ft. Meade this week, would I have applied for an observer slot to travel to Gitmo for the deposition? Most probably yes.

Though I had a law lecture scheduled in Australia for the week following the Hadi hearings, I would have sought harder to figure out a way to get to Gitmo for the deposition and still arrive in Australia for my lecture. I had figured out that I could do both – fly to Gitmo and fly to Australia, and that would have been my preferred course. But, again, I decided that I could observe at Ft. Meade this time and avoid scheduling issues.

When I learned that the judge prohibited CCTV feed at Guantanamo this week, I thought about how I could get to Gitmo this weekend. It turned out to be an unsurmountable challenge, because, for example, timing was short for the paperwork that needed to be completed before Gitmo travel.

My plans for the al Darbi hearing / deposition

At the moment, I plan to travel to Ft. Meade on Monday morning, 14 August 2017. Though I have been informed that the feed has been cut to Ft. Meade for Monday, the possibility exists that the judge will change his mind and re-open the hearings at Ft. Meade, making it possible for me, other NGO representatives, and other stakeholders to observe / monitor there – again, if the judge orders the CCTV to go forward for Ft. Meade and if any of us is able physically to be present at Ft. Meade this week.

George Edwards

* The full title of the Manual is “Guantanamo Bay Fair Trial Manual for U.S. Military Commissions: An Independent & Objective Guide for Assessing Human Rights Protections and Interests of the Prosecution, the Defense, Victims & Victims’ Families, Witnesses, the Press, the Court, JTF-GTMO Detention Personnel, Other Detainees, NGO Observers and Other Military Commission Stakeholders”