Dean Andy Klein and Judge Aline Fagundes in front of the Guantanamo Photo Exhibition that was created by Judge Fagundes.
Indiana law students, faculty, staff and graduates have a long history with Guantanamo Bay. Much of their work relates to the U.S. Military Commissions – a military tribunal – created by Congress in 2006 to try detainees for alleged conduct associated with war.
The students, from Indiana University McKinney School of Law, are holding a photo Exhibition that highlights aspects of Guantanamo that do not focus on their legal work on important cases like that of alleged masterminds of the 9-11 attack on the World Trade Center and Pentagon.
The Exhibition focuses on Guantanamo as a tropical island outpost that “holds a rare natural beauty in the Caribbean Sea”.
Guantanamo is a “place globally associated with stories of terrorism, torture and lengthy detention without charge”, but it has another side to it that is rarely reported, the students note.
The Exhibition comprises photos of nature at the U.S. Naval Station Guantanamo Bay, Cuba (also called “Gitmo”).
Brilliant sunrises and sunsets, sand covered beaches with lapping waves, iguanas, and vultures appear in vividly vibrant, large-scale photographs, clear and sharp.
Indiana McKinney’s Guantanamo involvement.
Indiana McKinney law students, faculty, staff and graduates have been associated with Gitmo for most of the 15 years since the first detainees arrived there in January 2002. Their Gitmo roles have included law student researcher, expert witness, media representative, chief defense counsel, prosecutor, detention camp legal advisor, detention center guard, Defense Department public affairs representative, and fair trial observer.
Today’s Exhibition explores Gitmo through the eyes of McKinney students who traveled to GTMO as fair trial observers.
The Department of Defense grants “NGO observer status” to Non-Governmental Organizations such as McKinney’s Program in International Human Rights Law, for the stated purpose of promoting transparency at the Commissions. The McKinney human rights program then formed the MCOP – Military Commissions Observation Project. The MCOP sends McKinney faculty, staff, students and graduates to Gitmo Bay to attend, observe, analyze, critique, and publish materials on the hearings. They are fair trial observers.
Exhibition details
Judge Fagundes and Professor Edwards at Ft. Meade, Maryland
The Exhibition, sponsored by the law school’s Program in International Human Rights Law (PIHRL) & Master of Laws Association (MLA), is titled “Guantanamo Bay, Cuba, Through the Eyes of Indiana University McKinney School of Law Observers”.
Judge Fagundes & Professor Edwards at the Pentagon.
The Exhibition is in the Law School Atrium, 530 West New York St., Indianapolis, IN 46208. It runs from 20 April to 15 May 2017, from the end of classes, through the exam period, until the graduation ceremonies.
The Exhibition was created and organized by Judge Aline Doral Stefani Fagundes, LL.M. candidate, MLA President. Judge Fagundes traveled to Gitmo twice, and traveled to the Pentagon and to Ft. Meade, Maryland for other Guantanamo Bay – related hearings.
The students noted that the Exhibition would not have been possible without the help of the McKinney Graduate Programs, the Office of External Affairs, and the Office of Students Affairs.
This morning, in a dark, locked, secure Pentagon conference room, I attended a hearing in which Guantanamo’s oldest detainee, 69-year-old Mr. Saifullah Paracha, asked the U.S. government to set him free. I was joined by Judge Aline Fagundes, who is a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, and several other carefully screened civilian monitors.
The hearing was held pursuant to a 2011 Executive Order issued by President Barack Obama that provides detainees periodic reviews to determine if the detainees are a threat to U.S. national security. If the Periodic Review Board (PRB) finds that the detainee is a threat, he remains detained. If he is found not to be a threat, he may be repatriated to his home country or resettled in a third country.
Mr. Paracha argued for his release. The government alleged that Mr. Paracha was a “businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners”.
The PRB is expected to render a decision in Mr. Paracha’s case in about a month.
Today’s hearing – Who? Where?
Today at the Pentagon we had 6 observers from non-governmental organizations (NGOs) and the media. Two of us were from the Guantanamo Bay project I founded at Indiana University McKinney School of Law (GitmoObserver.com). Our project sponsors Indiana Affiliates to travel to hearings at Guantanamo, the Pentagon, and Ft. Meade, Maryland.
We were met by 2 military and one civilian escort in the Pentagon’s Visitor Center, and escorted to a conference room where we talked amongst ourselves and listened to the Military History Channel, waiting for the hearing to commence.
Others present for the hearing included members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. These individuals were not with us at the Pentagon, but were at a separate, undisclosed location in the DC area. It is believed that also present for the hearing, also at one or more undisclosed locations, were the Legal Advisor to the Board, the Case Administrator, a Hearing Clerk, and a Security Officer.
The detainee – Mr. Paracha – was present, by close circuit TV.
Mr. Paracha was joined by a “personal representative”, who is a military official dressed in uniform, who has been spending time with the Mr. Paracha and helping him present his case. The personal representative is not a lawyer or other sort of legal professional, and communications between Mr. Paracha and his personal representative are not protected by attorney client or similar privilege.
The hearing begins
The hearing was scheduled to begin at 9:00 a.m., but what appears to have been a technical glitch resulted in a delay. Some of us were concerned, since at the last PRB we attended the audio feed was great from Guantanamo Bay but there was no visual feed so the screen was blank. Today’s visual feed was blurry, but at least we could see the Guantanamo hearing room and its occupants, unlike at the last PRB.
Mr. Paracha
At 9:14 a.m., a picture appeared on the almost ceiling-height screen.
In our dimly lit conference room, we saw on the screen the dimly lit Guantanamo room where the detainee sat at the end of a rectangular table, facing the camera, with a stack of papers in front of him. They were in one of Guantanamo’s trailer-like, austere, rooms that had plain walls, floor, and table.
In contrast to the bland surroundings, the hearing room had high back office chairs, that looked like high-quality leather chairs one might see in a law associate’s office. Aside from air conditioner units, seemingly from the 80s, hanging window-height on the wall behind Mr. Paracha’s head, there was nothing else on the walls.
On the table in front of Mr. Paracha’s seat was a table-top name plate that said in large, bold, all capital letters “DETAINEE”.
Mr. Paracha wore a white top, with somewhat short sleeves that appeared bunched at the elbows. His attire was clearly not a detainee “uniform”. Through the blur it appeared as though he had a white beard and a bald head.
The personal representative sat at the table on Mr. Paracha’s right, perpendicular to him, and not directly next to him.
The hearing began with a male, off-camera voice announcing that the hearing was commencing, mentioning some hearing rules, identifying who was present – boiler point.
Next came a female voice, again off camera. This voice read the Government’s Unclassified Statement, as follows:
Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them.
Mr. Paracha appeared to be paying close attention to whichever person happened to be speaking at the time – one of the off-camera narrators or his personal representative. The hearing was conducted in English, as a voice in the background stated that Mr. Paracha had waived his right to an interpretation of the hearing in another language of his choice.
While the personal representative spoke, Mr. Paracha would from time to time glance at her. At other times he appeared focused on the papers in front of him, appearing to follow along in English, flipping pages as the script was being read. At times he would place his left open palm firmly on the stack of papers, as though holding them down from a breeze.
The hearing ended at 9:19 — just 5 minutes after it began. This was the shortest PRB I have attended. They typically begin at 9:00 and run no longer than 30 minutes.
No private counsel of Mr. Parach attended today’s PRB, and no statement was read by any private counsel for Mr. Paracha’s today. That was one reason that the PRB was shorter than usual. It is unclear why private counsel did not appear today. A statement by the private counsel Mr. David H. Remes had been posted on the Perriodic Review Board websitehere. But, that statement was the same statement submitted under Mr. Remes for Mr. Paracha’s file review PRB in 2016. That statement ended with this sentence:
For these reasons, I respectfully encourage the Board to convene a full review and hope that it will conclude that Mr. Paracha’s continued detention is unwarranted.
David H. Remes
Approved for Public Release
UNCLASSIFIED
That statement asked the Board to convene a “full review”, and today’s hearing was the “full review” requested. If Mr. Remes submitted a private counsel statement for today’s hearing, that statement was not posted on the PRB website (as of tonight — 8:55 p.m., Tuesday, 21 March 2017), and was not read at today’s hearing. What was posted online under Mr. Remese name was from last year.
Mr. Paracha’s background
Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.
Uzair Paracha, Mr. Paraha’s son, is serving a 30 year sentence in a U.S. federal prison on terrorism-related convitions.
The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.
Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.
Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.
The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.” Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.
Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.
Paracha’s 3 PRB hearings — summary
Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.
Initial Review.Paracha had a PRB initial review on 8 March 2016, and on 7 April 2016 the Board concluded:
The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States. In making this determination, the Board considered the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.
File Review.Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:
On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.” The PRB previously conducted a full review of the detainee and on 7 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States. After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to Whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.O. 13567.
Full Review.It was Mr. Paracha’s full review that was held today. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will repatriate him to Pakistan or send him to a 3rd country – outside the U.S.
The Board will likely publish a decision on this full review in a month or so.
More on this hearing?
The initial part of the PRB was unclassified, and that is the portion of the PRB that Judge Fagundes, the other monitors and I observed. During that portion of the PRB, we were sitting in a secure Pentagon viewing room watching Mr. Paracha and his personal representative live from Guantanamo Bay.
PRBs v. Military Commissions
Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.
PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.
Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.
Professor George Edwards & Judge Aline Fagundes at the Pentagon before the Periodic Review Board (PRB) held on 21 Marh 2017
Judge Fagundes’ observations
Judge Fagundes is the first student from Indiana University McKinney School of Law to participate in all three types of hearings our Indiana Guantanamo Bay Military Commission Observation Project / Gitmo Observer may send affiliates to observe:
She traveled to Guantanamo Bay, Cuba to monitor U.S. Military Commissions live, in the courtroom.
She traveled to Ft. Meade, Maryland, to monitor U.S. Military Commissions via a secure videolink from Guantanamo.
She traveled to the Pentagon to monitor Guantanamo Bay Periodic Review Board (PRB).
Judge Fagundes is researching and writing a paper that focuses on international law requirements for transparency in the U.S. Military Commission system. She has described some of her experiences on this blog – www.GitmoObserver.com.
On Tuesday Guantanamo’s oldest detainee, Mr. Saifullah Paracha, will likely plead at a hearing that he is not a threat to U.S. national security. He will ask to be repatriated to his homeland of Pakistan or resettled in a 3rd country.
During the parole-like hearing, Mr. Paracha will be located in a small, bare trailer at Guantanamo. The proceeding will be videocast live to a small Pentagon room where I plan to watch it with a handful of other carefully screened observers, including two of my Indiana law students (Judge Aline Fagundes and another Master of Laws student).
Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.
Mr. Uzair Paracha, Mr. Paracha’s son, who is serving a 40 year U.S. terrorism sentence
The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.
Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.
Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.
The hearing – a Periodic Review Board – PRB
This hearing at which Mr. Paracha will argue is called a Periodic Review Board (PRB), and will be conducted pursuant to a 7 March 2011 Executive Order (number 13567) which has required most detainees to have a “periodic review” of their detention status.
The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.” Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.
Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.
Paracha’s 3 PRB hearings
Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.
Initial Review. Paracha had a PRB initial review on 8 March 2016, and on 7 April 2016 the Board concluded:
The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States. In making this determination, the Board considered the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.
File Review. Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:
On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.” The PRB previously conducted a full review of the detainee and on 7 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States. After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to Whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.O. 13567.
Full Review. It is Paracha’s full review that is scheduled for this Tuesday. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will repatriate him to Pakistan or send him to a 3rd country – outside the U.S.
The Board will likely publish a decision on this full review in a month or so.
Below is more information about what Tuesday’s full PRB may be like.
Judge Aline Fagundes, a Master of Laws (LL.M. student at Indiana) is expected to attend Mr. Paracha’s PRB at the Pentagon. She was at the Pentagon earlier this month for a different PRB.
What will Paracha’s PRB be like on Tuesday?
Who will be present?
I suspect that other representatives of Non-Governmental Organizations (NGOs) (including 2 students from Indiana University McKinney School of Law) will be present with me at the Pentagon on Tuesday, and possibly some media. This is the third PRB to be held under the Trump Administration.
Others present for the hearing will include members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. Presumably each of those representatives will watch remotely in his or her office in the DC area. Also likely to be present for the hearing are the Legal Advisor to the Board; the Case Administrator; a Hearing Clerk; and a Security Officer, though it is not clear where these individuals would be located at Guantanamo Bay or elsewhere.
Who will make statements made at the PRB?
1. First, U.S. military official will read an “Unclassified Statement”. The statement for Tuesday is already posted online, and is as follows:
Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them.
2. Mr. Paracha’s Pentagon-appointed personal representative may make a statement. The text of this statement has not yet been posted online.
3. Mr. Paracha’s private counsel may make a statement. The text of this statement has not yet been posted online.
More on this hearing?
The initial part of the PRB will be unclassified, and that is the portion of the PRB my students and I will observe. During that portion of the PRB, I will be sitting in a secure Pentagon viewing room watching the hearing live, which will be happening at Guantanamo Bay.
It is possible that the Pentagon will post a statement by Mr. Paracha and the other statements mentioned above (statement by his Pentagon-appointed personal representative and by his private counsel). If these are posted on the PRB website, I will plan to post them on this blog later.
PRBs v. Military Commissions
Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.
PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.
Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.
Conclusion
So far as we can tell, Paracha’s PRB is still scheduled to go forward on Tuesday. That is, the Pentagon has not notified us that it will not go forward. If it does go forward, it seems likely that Mr. Paracha will attend, as there has been no suggestion that he will miss his first full review.
I was selected to travel to Guantanamo Bay, Cuba to monitor the U.S. Military Commission in the case against the alleged masterminds of 9/11. I was approached just over a week ago by Professor Edwards when he was inquiring into my availability to travel to Guantanamo Bay either the first or second week of December. He informed me that there was no guarantee of nomination or acceptance, but I was very excited to even have the possibility of traveling to Guantanamo Bay to monitor the 9/11 hearings. I quickly responded that I was available to monitor the hearing during the first week of December. Less than 24 hours later I was on a video conference with Professor Edwards regarding my interest in traveling to Guantanamo Bay to monitor the 9/11 pre-trial hearing. I was nominated by the Program a few hours later and my information was sent to the Pentagon for selection approval. To my surprise, less than three hours after being nominated by the Program, I received the following email from the Office of Military Commissions (OMC) – Convening Authority:
Good afternoon Justin,
You have been CONFIRMED to observe the December 5-9 9/11 military commission in-person at Guantanamo Bay, Cuba. We are scheduled to depart Andrews Air Force Base at 1000 on Saturday, December 3, 2016, and will return on Saturday, December 10, 2016, around 1330.
I was very excited to have received the confirmation, and I was incredibly surprised that it occurred so quickly. I was concerned that the process might be slowed down by the upcoming holiday, so I was very happy to have received the confirmation the same day.
The Logistics
On the evening of December 2nd, I will be arriving at Ronald Reagan Washington National Airport, Arlington, VA. That night I will be staying at a hotel at Joint Base Andrews in Maryland. Joint Base Andrews was formed when Andrews Air Force base and Naval Air Facility Washington merged in 2009. I am scheduled to depart Joint Base Andrews at 10:00 a.m. on Saturday, December 3rd. I plan to arrive at Guantanamo Bay from December 3rd until December 10th. Travel plans have frequently changed during other NGOs’ missions, so I am trying to book refundable tickets in case anything changes in the next week. I currently do not have any information on the type of plane or the estimated time of arrival in Guantanamo Bay.
Paperwork
In the email that I received from the OMC – Convening Authority, I was informed that I would need to complete and return four documents: (1) a hold harmless agreement, (2) an invitational travel worksheet, (3) a Department of Navy base access pass registration, and (4) the NGO ground rules. Aline Fagundes was kind enough to provide me with copies of
Aline at Guantanamo Bay
her paperwork so that I could use them as a guide to properly fill out my forms. The forms are generally self-explanatory; however, there are some parts of the forms that would be difficult to accurately fill out without having a sample. I am currently working on creating a pdf with sample forms and instructions for completing the four documents required by the OMC.
I did run into an issue with sending the documents back to the OMC. I sent the four documents as .pdf attachments. Three of them went through fine, but the OMC told me that one of the documents was too dark. I opened the document up and it looked great on my end. I resent the document but again the OMC stated that the document was too dark. I rescanned the document into individual pictures (not .pdf). Then I sent the document in two individual attachments, with one page in each attachment. This time the OMC was able to clearly read the document. I used the same scanner both times and both times the document was clear and legible on my end.
NOTE: If the OMC is having issues reading your document, try to send the document in .jpeg format instead of .pdf.
Preparing for the Hearing
I still have a lot of work to do in the next week. First, I will
Guantanamo Bay Fair Trial Manual
continue to review the Guantanamo Bay Fair Trial Manual. I will also be checking mc.mil to review the pleadings and filing that are currently available. Hopefully, by early next week, mc.mil will have more up-to-date postings. I will also be speaking with Aline because she was the last IU Affiliate to attend a 9/11 hearing. I was at Ft. Meade in October to observe the al Nashiri pre-trial hearing, see the blog post here, but I am not up-to-date on the 9/11 hearings yet.
Justin at Ft. Meade
Conclusion
I am honored to have been selected to travel to Guantanamo Bay to monitor the 9/11 hearing. I look forward to documenting my experience and providing my analysis of the proceedings.
Justin W. Jones, J.D. Candidate (2018)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University Robert H. McKinney School of Law
For a week in October 2016, I had the most extraordinary experience of my academic life, certainly one of the most extraordinary experiences of my whole life. I traveled to the Guantanamo Naval Station, at Guantanamo Bay, Cuba, to monitor the U.S. Military Commission case against five alleged masterminds of the 9-11 attack on the World Trade Center and the Pentagon. I was nominated to represent the Military Commission Observation Project of the Indiana University McKinney School of Law. Our Indiana program, sponsored by the McKinney Program in International Human Rights Law, is a non-governmental organization (NGO) that is permitted to send law students, faculty, staff and graduates to Guantanamo to monitor hearings.
Flying to the island
Our flight from Andrews Joint Base, near Washington DC, to Guantanamo Bay, Cuba, was originally scheduled to depart on Saturday, October 8. For reasons that are not very clear to me (click here for more details), a large plane flew for Guantanamo Bay but left at least two groups of people behind – member of the media and 13 NGO representatives, including me. The NGOs flight was postponed until Monday, October 10. That meant that we had to spend two nights in hotels near Andrews, at our own expense.
The original Saturday flight was supposed to be operated as a charter by a regular commercial airline (like United, or American Airlines). Usually, the regular flights carry virtually all Guantanamo Bay participants, including the defense counsel, the prosecution, the judge and the judge’s staff, the media, victims and victims’ family members, interpreters and translators, IT personnel, and other personnel. Everybody travels together on the same plane, arrives at Guantanamo Bay at the same time, and have an equal amount of time on the ground at Guantanamo Bay to prepare for the hearings.
The Pentagon hired a Jetstream 31, 15 seat private jet to transport the NGOs on Monday morning. The trip from Andrews to Guantanamo on Saturday’s commercial flight took around 3 hours. Our trip on Monday on the Jetstream took over 9 hours, including one layover in Georgetown, SC and one in Opa-Locka, FL. The last leg on the Jetstream, which had no toilet on board, lasted 3 hours. Tough.
We arrived at Guantanamo (“on island”, as they call it) around 8 pm on Monday, and had to hurry to catch the ferry from the landing strip to the main part of the Guantanamo base, otherwise we would need to wait another full hour – until 9 pm – for the next ferry.
We finally made it to Camp Justice, our “tent city” where we would live for the next week. We NGOs left all our stuff in the tents we were housed and went directly to the security area where they made our security badges. After that, it was so late that the only place open for food on island was the Guantanamo Bay MacDonald’s. The tiredness and hunger prevented any complaints. After we ate, the military escorts took us to our tents. I knew we would be housed in tents, but I confess I underestimated what this entailed. The tent and other facilities were extremely simple.
The tents were simple and, to keep iguanas and banana rats away, extremely cold.
The first full day
Those who wanted to have breakfast at the Galley, which is the cafeteria where soldiers on base eat, should be ready standing outside the tents at 6:15 am. Worth it. Excellent breakfast for $ 3.45.
The hearings were scheduled to start at 9 am. So, after breakfast, our Pentagon escorts met the NGOs at 8:00. Even though the walk to the courtroom takes only about 5 minutes, we had to go early so we could go through several security checks, much more extensive than security at any U.S. airport.
After we entered the courtroom, I went to my assigned seat in the Courtroom Viewing Gallery, which is in the back of the courtroom. Between the gallery and the actual courtroom there is a double-pained bullet proof glass. The NGOs, media, victims and victim’s family members watch it from the gallery, where the sound from the courtroom is transmitted with 40 seconds delay, in case any classified information is mentioned. My seat was directly behind the five alleged masterminds of the 9-11 attack. Unbelievable. We were seated only a few feet behind 5 men who allegedly perpetrated one of the greatest crimes in history – the bombing of the World Trade Center and the Pentagon.
The hearings
The hearing lasts from Tuesday to Friday, though some of the hearings contained classified information and those portions were closed to NGOs, media, and victims and their families. Memories of this week in courtroom include arguments about torture, debates about a joint defense agreement (the 5 defense teams agreeing on some points), documents seized by jailers, depositions by closed-circuit transmission, one accused acting in his own defense, the defendants’ prayer ritual in the courtroom, extraordinary arguments on novel topics, and even a few jokes between the judge and the counsels. The hearings are still in the pre-trial phase, though the World Trade Center attack happened over 15 years ago (11 September 2001), and these 5 defendants were arraigned 5 years ago (2011).
To be able to write faster I made all my annotations in Portuguese, my first language. I brought around thirty pages of written records, which I am willing to organize and publish. Thanks to the Indiana University McKinney School of Law’s Guantanamo Bay Fair Trial Manual I was able to follow more appropriately all the procedures.
At the end of the hearings on the first day of the week, the family members of victim’s, who were seated on the right side of the gallery, walked to the left side and stopped right behind the defendants, just in front of my seat. A family member held the picture of her youngest sister against the glass, pointing in the direction of the defendants, who would walk towards us as they were escorted out of the courtroom. This was a very sad and tense moment.
Conclusion
I left the Guantanamo Bay feeling conflicted. That beautiful place facing the Caribbean blue sea carries sadness and shame. Much needs to be done to reach justice, fair trial, and transparency. My mission is not done. I realized it has just begun. I consider myself a fortunate person to be afforded an opportunity to be the eyes and the ears of the outside world in Guantanamo Bay. Keep tuned! I will publish more!
I am now at Joint Base Andrews Naval Air Facility Washington, known as JBA – Joint Base Andrews (joint base due to the merger of the Andrews Air Force Base and the Naval Air Facility Washington). The JBA is the home of Air Force One, the aircraft that carries the President of the United States.
I just met the other NGO’s Observers who, like myself, are scheduled to fly to Guantanamo Bay to monitor hearings in the case against Khalid Shaik Mohammad and four other alleged masterminds of the September 11 attack on the World Trade Center and the Pentagon (please, see my previous posts clicking here).
The hearings are now scheduled to start tomorrow (Tuesday, October 11) and to last until Friday, October 14. We are scheduled to flight back to the U.S. on Saturday, October 15.
We are ready to depart. Keep tuned to follow my first post from Cuba.
Aline Fagundes (LL.M. Candidate, ’17)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University McKinney School of Law
All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.
A few weeks ago I was confirmed as an NGO Observer to monitor the hearings in the 9/11 case at Guantanamo Bay (click here to see my previous posts). It was finally the day to fly from Indianapolis, where I currently live, to Washington DC, where I would catch a military flight at Andrews Air Force Base to take me to Guantanamo Bay. The flight from Andrews to Guantanamo Bay was scheduled for Saturday, October 8, morning, and I was supposed to be at Andrews at 5:30 am.
I was at Atlanta Airport, half way to DC, when I opened my emails and received this message, sent Friday, October 7, at 4:42 pm:
“There has been a change in the flight schedule and you will all now be flying down on island on Monday at 1000. Unfortunately, the number of passengers for tomorrow’s flight exceeded the number of seats available on the aircraft (primarily due to additional personnel that needed to fly down to assess the infrastructure post-storm).”
I was already on my way, so I had to book two extra nights at the DC hotel, and spend the whole weekend in DC.
On Saturday, October 8, Carol Rosenberg (link), a Miami Herald correspondent and one of the passengers of our original Saturday morning flight – that was taking judges, defense councils, prosecution, interpreters, victims and family members, media and others to Guantanamo – tweeted she had to leave the airplane and was not able to go to Guantanamo Bay that day. Apparently information was circulated that the issue was the overweight of the aircraft and the Pentagon needed to solve it to be able to fly around the Hurricane Mathew.
Until that moment, it appears that those on this plane thought only the NGO Observers would be left behind in DC for 2 days. As it turns out, media may have been bumped out the plane, but media’s luggage stayed on board. How would that help effectively resolve overweight issues?
Carol Rosenberg then reported that she noticed the IT support techies were likewise bumped from the flight.
So, I am thinking what kind of additional personnel instead of NGO Observers and media needed to fly down to assess the infrastructure post-storm, if IT techies were not essential.
The transparency we are pursuing seems to be blurred.
Aline Fagundes (LL.M. Candidate, ’17)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University McKinney School of Law
All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.
“There has been a change in the flight schedule, and you will all now be flying down on island on Monday at 10:00.”
I received this message from the Pentagon when I was at the Atlanta Airport yesterday (Friday), on the way from Indianapolis to Andrews Air Force Base near Washington DC.
I am an observer from Indiana University McKinney School of Law’s Program in International Human Rights Law, confirmed to attend and monitor hearings at Guantanamo Bay from 11 to 14 October, 2016 (please read my previous posts here). The hearings are in the case against Khalid Shaik Mohammad and 4 other defendants who allegedly masterminded the 9/11 attacks on the World Trade Center and the Pentagon.
The flight to Guantanamo was originally scheduled to depart from DC on Saturday, October 8, and I was supposed to be at the Joint Base Andrews Terminal at 5:30 am.
We were informed, “the number of passengers for tomorrow’s flight exceeded the number of seats available on the aircraft (primarily due to additional personnel that needed to fly down to assess the infrastructure post-storm).”
My role as NGO Observer in the 9/11 case
I would have to spend 3 nights in DC before flying to Cuba, and the other 11 NGOs and I would miss almost 3 days of observation. This delay undermines part of my job as a monitor, since the whole purpose of this mission in not solely to watch the hearings. For instance, we will be missing a gathering on Sunday we were invited to by one of the defense teams, miss opportunities to meet with other defense counsel and media, miss possibly meeting the prosecution, and miss other valuable interactions. As observers, our responsibilities include to attend, observe, analyze, critique and report on the Military Commissions. The observer’s job begins at the moment of the confirmation to attend the hearings, and includes paying attention to communications with the Pentagon, defense counsel, and other NGOs, and otherwise observing and interacting with other stakeholders.
Rather than being at Guantanamo and meeting with defense counsels, other NGO’s, media and observing the situation on the ground, I am stuck in a hotel, near Washington DC.
I just learned on Twitter that there may have been issues about the media and their equipment on the plane this morning (Saturday). I will monitor and report about it later. See @GitmoWatch, @carolrosenberg and @GitmoObserver.
Aline Fagundes (LL.M. Candidate, ’17)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University McKinney School of Law
All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.
Since the Pentagon has authorized me to be an MCOP Observer (click here), I have been involved with preparing my travel to Guantanamo Bay. In this case, preparing means concrete steps and psychological preparation.
Hurricane Matthew
To add more emotion to all ongoings, the hurricane Matthew crossed that area. Around 700 people and 65 pets were evacuated from the U.S. Naval Base in Cuba. The hurricane is heading the east coast of the United States, so we are following the weather forecast to see if the flight from Andrews Air Force Base will be able to depart on Saturday to Guantanamo Bay.
Hurricane Matthew path on Tuesday, October 4, 2016.
A lot to do before
While the travel is confirmed, I have to keep working on my project. Besides studying the Manual, many, many forms needed to be filled.
The first set of forms is from the Pentagon. It consists of Ground Rules, Invitational Traveler Worksheet, Release, Indemnification and Hold Harmless Agreement, and ID Card/Base Pass Registration. After we fill this set, it has to be submitted to IU Lawyers, who need to approve it before we send back to the Pentagon. Sure, it all also pass through IU McKinney PIHRL, by the personal and close assistance of Professor George Edwards, who has a large experience in this process and always have a sharp look to avoid any minimal mistakes. There is one form from PIHRL, which is basically an agreement including obligations for each participant. This form serves as a basic but good guidance to MCOP Observers, once we have to share all we see, writing this blog, updating the Manual, posting information and working as the eyes and the ears of the outside world.
The third set of forms comes from the Office of International Affairs Study Abroad of IUPUI, and it is split into two phases. The first step, mostly related to data (passport, address, ID etc.), has around half dozen forms all online, and once it is approved it opens the second online phase with thirteen forms. The purpose of those forms are safety, including travel registration, health insurance, medical information, housing information, emergency contacts, and rules about what you can or cannot do abroad.
To be a good observer
But as I mentioned before, the preparation involves study the Manual. I can say it is the most important and helpful thing to do. The Manual helps the Observer to improve its role. A long time ago, I heard from a professor that “if you do not know what you are looking for, when you find it you may not realize.” Well, this is entirely true, and the Manual will not let you miss anything.
The main purpose of the MCOP is to pursue a fair trial. A right to a fair trial has many perspectives, and I would say the most important task is to be able to be aware of the rights of all stakeholders.
The hearing I am about to attend is related to the September 11 Attack on the World Trade Center and the Pentagon. The whole world was shocked after that episode. For sure many people might be thinking of why an NGO is worried in ensuring any rights to someone who committed such a horrible crime? Many reasons. For instance, the NGO Gitmo Observer is not interested solely in the defendant’s rights, but also the rights of the victims and their families, the prosecution, the witnesses, the media, men and women who guard the detainees, and the domestic U.S. and international communities. Also, the rights of the defendants, ultimately, belong to everybody, because everybody can be suited and need to be sure a fair trial will be perceived, especially to be able to prove its innocence, or if not innocent, to be punished proportionally to what have been done.
Psychological Preparation
Finally, there is the psychological preparation. My eyes cannot blink. This is a unique opportunity. The biggest challenge is to avoid any bias, preconception, prejudice, prejudgment. I will have to keep my mind open to absorb as much as I can, and then start to settle it to be able to analyze what I saw. Being myself a judge it is unavoidable to compare what I do to what the U.S. Military Commission does, and maybe it can be useful, for me or others.
And this is all about to start. In two days, if the Hurricane Matthew allows me, I will be flying to Washington DC and, then, to Guantanamo Bay.
Next post will be the first in transit or the first after cancellation.
Wish me luck!
Aline Fagundes (LL.M. Candidate, ’17)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University McKinney School of Law
All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.
“Aline, we nominated you for the 9/11 week to travel to Guantanamo Bay to monitor hearings.”
This was the first sentence I had read on the morning of August 25, around 6 am, when, still in bed, I opened my mailbox on my phone. I could barely hold my excitement! The first step was given!
Well, let me start from the beginning…
My name is Aline Fagundes, I was born in Oakland, California, but I was raised in Brazil, where I received my first degree in law in 1993, from the Pontifical Catholic University of Rio Grande do Sul, in Porto Alegre. From 1993 to 2005 I worked as a trial attorney, and on September 23, 2005 I became a judge in the Labor Court.
In 2015 I applied for IU McKinney Master of Laws Program in Human Rights, certainly one of the best steps of my academic and professional life. Through the program I was introduced to a great variety of opportunities, all of them incredibly well supported by the Law School. For instance, I attended an externship at the Indiana Supreme Court, where I improved in networking, state matters and law, also made friends for life. The most recent activity I engaged is the Military Commission Observation Project (MCOP).
MCOP was established by IU McKinney Program in International Human Rights Law (PIHRL), once it was granted “NGO Observer Status” by The Pentagon’s Guantanamo Bay Convening Authority. Through MCOP, IU McKinney Affiliates can be selected to attend, observe, analyze and critique and report on hearings of the Guantanamo Bay detainees charged with war crimes. IU Affiliates can either travel to Guantanamo to observe in person, or monitor the proceedings from Ft. Meade, Maryland military base via secure video-link.
The selection process includes being nominated by the MCOP Advisory Council and having your name submitted to the Pentagon, who in last instance may grant or not the authorization to be an observer. In my case, I was nominated on August 24, 2016, and on September 9, just two days before the 15th anniversary of the September 11 Attack on the World Trade Center, I received this message from the Pentagon:
“You have been CONFIRMED to observe the 11-14 Oct military commission in-person at Guantanamo Bay, Cuba. We are currently scheduled to depart Andrews Air Force Base at 1000 on Saturday, Oct 8, 2016, and will return on Saturday, Oct 15, 2016, around 1330.”
Khalid Shaik Mohammed, the lead defendant in the 9/11 case against 5 alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon.
The date was extremely significant. The hearings I am scheduled to attend are in the case against defendant Khalid Shaik Mohammad, and four other alleged masterminds of the September 11 Attack on the World Trade Center and the Pentagon. It has been 15 years since that attack, and the defendants in that case are still in the middle of pre-trial hearings.
Logistics of the mission to Guantanamo Bay
Since I have received that message about the Pentagon accepting me to travel to Guantanamo Bay, I could not stop thinking about Guantanamo Bay all the time. I am expected to travel from Indianapolis to Andrews Air Force Base (where is based Air Force One, the United States Air Force aircraft carrying the President of the United States). At Andrews, I am expected to fly on a military transportation to Cuba, where I would stay in a military tent. Guantanamo Bay is a U.S. Naval Station (in 1903, Cuba signed a treaty that leased Guantanamo Bay to the United States for use as a Naval Station).
I plan to blog step by step my experience on behalf of the Indiana McKinney Military Commission Observation Project. It is part of my responsibility to be the eyes and ears from Guantanamo Bay to the outside world, as most people will never have the opportunity to travel there for these hearings. I hope to help promote transparency, to tell the outside world what I hear, see – what I experience as part of this Guantanamo Bay mission. I recognize that this mission has already begun, with my preparation. I plan to continue to blog before I go, while I am there, and after I return.
The academic meaning is even more exciting. If you search Guantanamo on the web, an enormous number of links will direct you to stories related to torture and human rights violations. Unfortunately, an expressive number of it are true, or were true. The fact that the United States are taking action in order to provide transparency represents a lot, and to be granted the opportunity of working on this goal is a tremendous responsibility. After my journey to Guantanamo Bay, I will have a better idea about how transparent the process really is.
As part of my mission, I will be contributing to the Guantanamo Bay Fair Trial Manual, that Professor George Edwards is creating with students to help observers / monitors and others interested in the rights of and interests of Guantanamo Bay stakeholders. We are reminded that not only do the defendants have rights, but also other individuals and groups have rights and interests, including the prosecution, victims and their families, witnesses, men and women who guard the detainees, the media, and the domestic U.S. and international communities. I hope to share information about and with the full range of stakeholders.
Through the Manual and the observing / monitoring that I and others do at Guantanamo Bay, we are helping to ensure that “whatever happens in Guantanamo does not stay in Guantanamo”. Information is important, and I will do my best to help ensure that knowledge about Guantanamo Bay is share with others on the outside.
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University McKinney School of Law
All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.
t Joint Base Andrews at 10:00 a.m. on Saturday, December 3rd. I plan to arrive at Guantanamo Bay from December 3rd until December 10th. Travel plans have frequently changed during other NGOs’ missions, so I am trying to book refundable tickets in case anything changes in the next week. I currently do not have any information on the type of plane or the estimated time of arrival in Guantanamo Bay.
The main purpose of the MCOP is to pursue a fair trial. A right to a fair trial has many perspectives, and I would say the most important task is to be able to be aware of the rights of all stakeholders.
