al Tamir

Reporting from Guantanamo Bay:  Courtroom Clash and Hearing Delays

Reporting from Guantanamo Bay

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

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

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

Tuesday 25 September 2018 Hearing

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

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

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

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

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

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

Abd Hadi al Iraqi (Nashwan al Tamir)

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

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

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

Conclusion

Please stay tuned for further Guantanamo updates.

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

Voter Protection Legal Fellow
Indiana Democratic Party

Jacob.Irven@gmail.com

Reporting from Guantanamo Bay: Commission Hearing in Limbo

Reporting from Guantanamo Bay

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

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

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

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

The Only Thing Constant in Guantanamo

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

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

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

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

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

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

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

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

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

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

Commission Hearing Resumes

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

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

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

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

Abd Hadi al Iraqi (Nashwan al Tamir)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Pleased stay tuned for future updates.

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Me working in the NGO Center located near Camp Justice.

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

Voter Protection Legal Fellow
Indiana Democratic Party

Jacob.Irven@gmail.com

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

Reporting from Andrews Air Force Base

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

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

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

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

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

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

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

Nashwan al Tamir / Abd Hadi al Iraqi

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

Reduced Hearing Schedule

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

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

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

Conclusion

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

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

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

Voter Protection Legal Fellow
Indiana Democratic Party

Jacob.Irven@gmail.com

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

Nominated for Travel

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

Abd Hadi al Iraqi (Nashwan al Tamir)

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

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

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

Previous Nomination

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

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

Background and Interest in Observing

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

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

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

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

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

Preparing to Observe

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

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

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

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

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

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

As always, please stay tuned for future posts.

Jacob Irven, J.D ‘18.

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

Program in International Human Rights Law

Indiana University Robert H. McKinney School of Law

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

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

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

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

I will report back after my observation this week.

 

Sheila Willard (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

My NGO Observer Trip to Guantanamo Bay Naval Base is Cancelled

Tamir / Hadi Hearings Cancelled

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

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

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

The Importance of NGO Observers

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

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

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

Jacob Irven (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

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

Nominated for Travel

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

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

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

Background and Interest in Observing

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

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

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

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

Preparing to Observe

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

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

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

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

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

Please stay tuned for future posts.

Jacob Irven (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

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).

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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

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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.

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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.

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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

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

 

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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

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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.

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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.

 

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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 

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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?

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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.”

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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.

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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.

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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

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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

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

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

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

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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.

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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.

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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.

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

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

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

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