Camp Justice

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

Reflections on my Previous Guantanamo Observation Trip

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

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

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

My Previous Guantanamo Observation

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Lighthouse at Guantanamo

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

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

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

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

The Judge is awaiting decisions from two federal district courts.

Further Thoughts

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

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

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

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

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

Reasons for Wanting to Return

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Flying over Cuba

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

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

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

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

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

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

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

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

 

Jessica Ayer (J.D. Candidate, ’19)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

My Week in Guantanamo Bay, Cuba

 

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.

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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.

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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.

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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!

31 May 2016 Hearing in 9/11 Case — Tuesday At Camp Justice, Guantanamo Bay, Cuba

 

9/11 lead defendant Khalid Shaik Mohammad, in the Guantanamo Bay courtroom. (Sketch by Janet Hamlin)

9/11 lead defendant Khalid Shaik Mohammad, in the Guantanamo Bay courtroom. (Sketch by Janet Hamlin)

Today’s hearings in the 9/11 case started on time in the Guantanamo Bay courtroom.

Defendants KSM, Ramzi bin al Shibh, and Ali Abdul Axis Ali (aka Ammar al Baluchi or “Triple A” or “AAA”) were present when I walked into the Gallery.  The other two defendants chose not to appear, which is not uncommon.

The Gallery is a small room with soundproof clear glass through which NGO Observers, Victim’s Family Members, Media, and other visitors are able to watch the hearings.  The Gallery has several televisions that show the hearings, with audio on a 40 second delay.  We can see what is happening live through the Gallery glass, and 40 seconds later see what we just saw on the TV.  It is only through the TV that we can hear what happened in the courtroom, 40 seconds after it actually happened.  The purpose of the delay is to prevent the release of classified/confidential information.

There is a curtain in the Gallery separating separating the media and Non Governmental Organization (“NGO”) observers from the victims and victims’ families.  The curtain is usually not in use. I have already written about the selection and approval process which allowed me to attend these hearings as an NGO observer. Victims and Victims’ family are chosen based on a lottery system.

Today’s Motions

The day’s hearing touched on three sets of motions:

  1. AE 018: The hearings on these motions deal with how certain information is treated and released to either the parties or nonparty actors.  I believe there were a total of 13 AE 018 motions on the docket for the week’s hearings.
  1. AE 422: The 422 motion was filed by the Government. The Government seeks the deposition of family members of the victims of September 11, 2001 during public pre-trial hearings scheduled for 4-14 October 2016.
  1. AE 133: This motion was filed by the Defense. It is an Emergency Motion to Remove Sustained Barrier to Attorney-Client Communication and Prohibit any Electronic Monitoring and Recording of Attorney-Client Communication in any Location, including Commission Proceedings, Holding Cells, and Meeting Facilities and to Abate Proceedings.

All the filings related to each motion can be found on the military commission website. Howeve,r not all will be public. http://www.mc.mil/CASES/MilitaryCommissions.aspx

 AE 018

I will not discuss each motion that falls under AE 018, but generally they deal with how communications and information can be released, how those communications are reviewed by the various security processes, and the format and timeliness of prosecution’s discovery responses.  There are processes in place for the how various communications are to be reviewed and delivered, however the processes continue to evolve as the litigation continues.  The discussions on these motions appear to be good examples of the types of issues that have delayed the 9/11 trial.  A few of the specific AE 018 motions are:

  1. AE 018 BB: Government Emergency Motion for Interim Order and Clarification that the Commission’s Order in AE 018U Does Not Create a Means for Non-Privileged Communications to Circumvent the Joint Task Force Mail System.
  2. AE 018EE: Defense Motion to Compel Discovery Responsive to Mr. Mohammad’s Request for Discovery Dated 14 March 2014. (emphasis added)
  3. AE 018 KK: Defense Motion to Invalidate Non-Legal Mai Restrictions Unrelated to Legitimate Penological Interests.
  4. AE 018MM: Defense Motion to Compel Reasonable Privilege Review Team Hours of Operation.

AE 422

This motion was filed by the prosecution to conduct depositions of certain witnesses. Specifically, the prosecution seeks to depose 10 victims’ family members during the October 2016 hearing. The prosecution wants the depositions conducted in open session at Guantanamo Bay, during the October 2016 hearing.  The prosecution cited ages and health concerns, the uncertain posture of the case, and the logistical difficulties for potential witnesses to travel during the actual trial.

The defense generally agreed with the need for depositions but expressed expected concerns about holding the depositions in open court and the proposed dates.  The defense teams were not all on the same page with respect to the deposition issue, but some of the arguments expressed by the defense were:

  • public hearing will taint potential panel members (jury)
  • there is no need to preserve the testimony because there are so many witnesses
  • the age and health of potential witnesses is not a factor
  • there is no need to have the depositions in open court if the evidence may never be admitted
  • if the prosecution wants to preserve evidence for the elderly and those in poor health, bringing them to Guantanamo Bay would be counterproductive
  • it does not make sense to have public depositions so close to the election
  • there is a difference between having the victims’ voice heard and presented vs. creating a public spectacle

I tend to side with the defense, and if I were to bet, I would bet that depositions will take place, but not in open session and not during the proposed dates. A very recent article by Carol Rosenberg on this issue.

AE 133

This is an ongoing motion dealing with allegations that the government has been trying to pierce the attorney – client privilege.  The defense is concerned that they are subject to monitoring which prevents frank exchanges between the attorney and the client.  The motion stems from the finding of microphones in fire detectors in rooms that were used for attorney/client meetings.

I suggest reading the AE 133 motions on the military commission website.  The discovery of these microphones is documented.

The prosecution stated that while the recording capabilities were present, they were not used during attorney/client meetings. The prosecution stated that while the microphones were used for other law enforcement purposes in the past, they have not been used to monitor attorney/client meetings related to these trials.

Mustafa_al-Hawsawi_2012My Personal Observations

One issue that stood out for me was the AE 018MM Motion.  This motion was filed by the defense to compel the Privilege Review Team (“PRT”) to have reasonable hours of operation.  The Privilege Review Team, among other duties, reviews all documents that are taken to a detainee, including any notes attorneys may bring to an attorney client meeting.  If the PRT is not operating, then the team of attorneys cannot take any notes into the meeting.  Counsel for Hawsawi told the Judge that the PRT was not “open” on the Saturday and Sunday before Monday’s (Memorial Day) hearing, so they had to meet with their client without being able to bring any notes.  To me, this sounds outrageous.  How is it possible that a team of attorneys who are only able to see their client during very limited hours, after chartering a military flight that flies infrequently, are not able to bring in notes to a client a day before the hearing just because staff of the Period Review Team did not want to work?

I was initially “convinced” by the defense arguments. However, the prosecution presented a different side to the story.

The prosecution argued that PRT staff are like any other employees and it is not unreasonable for them to have the weekend off, especially a holiday weekend.  Additionally, the prosecution stated that the PRT is available as long as appointments are made in advance.  Prosecution also stated that it is not uncommon for the defense team to not show up to scheduled appointments.  After the prosecution presented their argument I was less outraged, and more confused.

I noticed this sway in many of the arguments I have seen in my limited experience with the Military Commission: the movant pulls on emotional strings and presents facts that help their case, the opposing party presents facts in a way that appear to be unemotional and paint a fuller picture.  In the end, I am happy I don’t have the burden of having to make a decision.  Having only been at Guantanamo Bay for a few days, and only being able to see what I am allowed to see, I find it very difficult to have a strong opinion one way or the other.  It is difficult to gather unbiased information because of the emotions and passions tied to the subject matter.  Information I receive could be driven by agendas that I do or do not understand.  I have made an effort to keep a neutral point of view in order to allow me to gather as much information as possible before I start to lose impartiality.

AE 422

The hearing on AE 422 was understandably emotional.  The curtain separating the media and NGOs from the victims’ family members was drawn shut.  The parties argued about the prosecution’s motion to depose, in public court, family members of the 9/11 victims.  One particular testimony would revolve around a telephone conversation occurring as a plane hijacking was taking place, just before United 175 flew into the South Tower.  The arguments went into additional details, which I will not do here, but the hearing’s transcript is available on the website of the Military Commission.

KSM was also emotional.  He, without the Judge’s permission, expressed his feelings regarding the proceedings.  I could not make out everything that was said but part of it dealt with the fact that his attorney is an American person and is representing American interest, which is not neutral.  Judge Pohl responded with, “one more word and you’re leaving”.   Later, Mr. Nevin (Lead Counsel for KSM) explained that his client was upset because an objection was overruled and that a lack of an interpreter prevented the defendant from understanding the meaning of “deposition”.

Wednesday

On Wednesday the Commission held hearings open to NGOs, Media, and Victims’ of Family Members in the morning session; the Commission held closed session in the afternoon.  I will write about these later, but I need to get some rest before the hearings tomorrow.  The hearings tomorrow are scheduled to include two witnesses.  Both of the witnesses are high value detainees who have not been charged with a crime.  They will testify during the hearing on AE 152 which is the Emergency Motion for Show Cause Why the Government, JTF Camp Commander and JTF Guard Force Members Should Not Be Held in Contempt.  The motion’s allegation is that Mr. Bin al Shibh continues to be subjected to external sounds and vibrations while detained.  Hassan Guleed is expected to testify at 10 in the morning and Abu Zubaydah is expected to testify at the start of the afternoon session.

Leontiy Korolev, J.D., Indiana University McKinney School of Law

Participant, Military Commission Observation Project (MCOP), Program in International Human Rights Law (PIHRL), Indiana University McKinney School of Law

Guantanamo Bay Arrival, Base Tour, Counsel Meetings

2/20/2016 Day 1: Arrival at Guantanamo Bay

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Matt Kubal in front of the Guantanamo Bay U.S. Naval Station sign by the Naval Exchange

It was a hot 87 degrees and humid  when I arrived at Guantanamo Bay. I exited the plane, removed my sweater and immediately wished I could change into shorts. I made it to Guantanamo Bay and it felt good. I had little time to relish the feeling as our escort Mark corralled the observers and told us we would need to rush as the plane had arrived late. We were in danger of missing our ferry across the bay from the airport to Camp Justice. The tents we are sleeping in and the Expeditionary Legal Complex, where the Military Commissions are held, are at Camp Justice.

 

Our passports were checked prior to leaving the airport (yes, a passport is required to travel to Guantanamo Bay) and we were hurried to a van to drive us to the ferry. Our bags were loaded directly from the plane to a box truck and followed us onto the same ferry. The breeze on the second level of the ferry from the airport to Camp Justice felt great and we had a nice view of the Guantanamo Bay Naval Base as we approached from across the bay. About 10 vehicles and a dump truck accompanied us on the same ferry.

We were told on the way to the ferry to be very careful what pictures we take as many areas are off-limits for photography and the military police on the base are very serious about enforcing rules against photography. Mark suggested we ask him or our assigned driver prior to taking any pictures if we weren’t sure whether or not it is allowed in that area. Given that I need to provide several photos for each of these posts, that made me a little nervous, but Mark continued by giving us a short-list of places and things to not take pictures of. Over the next 24 hours we were reminded several times of various places we should not take pictures of.

Day 1: Arrival at our Tents

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The tent I share with three other NGO Observers at Camp Justice

After exiting the ferry we made our way to our tents. The area that was formerly McCalla Airfield is now the part of Camp Justice that houses visiting media and observers in tents. Before arriving I knew that the tents had some amenities, but I was pleasantly surprised by all they did have. I share my tent with three other fellow observers. The tent has seven beds with twin size mattresses and wood frames, wooden floors, dressers and side tables, couches for lounging, a table and chairs, electricity, a refrigerator and air conditioning (set very cold to keep out unwanted critters).

 

We were given some time to unpack and settle in before we all went to obtain our badges. The badges are government property and we were told we should not take photos of them. We were also advised regarding the specific procedures of when and where we should and should not wear them. This was my first time visiting a secure facility of this nature and I I actually expected more security hoops to jump through. Given the potential risks inherent in conducting a trial of persons who are allegedly members of al Qaeda, I understand the need for strict rules and restrictions. We were told that previously observers were far more restricted and could not leave Camp Justice at all. I feel fortunate that I will be able to see much of the base and travel relatively freely to most areas without an escort.

Day 1: Venturing out from Camp Justice

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The Navy Exchange and Commissary

After a brief visit to the Navy Exchange (like a supermarket and department story rolled into one) we returned to our tents for a brief rest before attending a barbecue hosted by the defense counsel for the 9/11 hearings. Meeting the defense counsel for each of the defendants at the barbecue was exciting and a little overwhelming at first. These attorneys are the defense counsel in what one of the attorneys present described as the most significant capital case in United States History. After a year of reading the transcripts of their arguments and their quotes in news stories, it felt surreal to meet them in person. I was very grateful that they were willing to take the time to host an events such as this on our behalf. We were told that the weekly barbecue for observers started as a way to get observers out of the Camp Justice complex in the past when the rules prevented observers from leaving. At the end of the evening, the defense team answered questions and I learned much about the Military Commissions, the hearings in the 9/11 case from last week and regarding expectations for the hearings we will view this week.

 

AE 400 Tomorrow and Expected Motions this Week

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Supplies and resources available to all observers in the NGO lounge at Gitmo provided by IU McKinney’s Program in International Human Rights Law’s U.S. Military Commissions Observation Project

We expect that the hearing tomorrow, February 22nd, the hearing will begin at 9:00 am with motion AE400. Motion AE400 is unusual as it was filed by a group of members of the press (17 news groups) rather than the defense or prosecution. The press is seeking to unseal the transcript of the public hearing of the Military Commission hearing that took place on October 30, 2015. That hearing and the later redacted testimony was heard by observers, the members of the press and victims families in the observation area, but the transcript was later heavily redacted. The movant argues that the redaction after the public hearing is contrary to the Office of the Military Commissions claims of providing transparency. The prosecution is expected to argue that redacting the transcript after the information was made publicly available is currently and has historically been within the government’s authority to protect sensitive information.

We were informed that other motions that may be heard this week may include:

AE254Y and AE254YYY concerning the use of female guards during confinement,

AE396 regarding the classification of documents requested in discovery, and

AE397 regarding the consolidation of the defense’s discovery motions.

Both AE397 and AE 396 were discussed last week as well.

 

 

Travel to Guantanamo Bay

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My passport and boarding pass. The boarding pass destination originally said New Orleans, but the gate agent was able to change it to NBW (Guantanamo Bay)

This morning I traveled from Andrews Air Force Base (Andrews) to Camp Justice at the Guantanamo Bay Naval Base to attend hearings in the 9/11 case. I arrived at the terminal at Andrews at 6 AM this morning. I was bleary eyed, but excited to finally get a chance to travel to Guantanamo. My last three trips were cancelled prior to departure and I told my wife when she dropped me off to make sure her cell phone was on in case we found out that the hearings were cancelled or delayed. I walked in and found five or six people in the waiting room. I was a little nervous that I was in the wrong place (the e-mail we received said to arrive at 6 and no later than 7) and the first thing I did is to confirm with at the check-in desk that this was the the passenger terminal (it was). About 30 minutes later, our escort, Mark, arrived with most of the observers. Everyone else had been dropped off at the visitor center and had been waiting there for Mark to bring them to the terminal.
After introducing myself to the other 10 observers, I distributed copies of the Guantanamo Bay Fair Trial Manual and I has happy to see most of the observers reading through the Manual over the next hour or so until it was time to check-in. I am proud that the Gitmo Observer and Professor George Edwards created the Manual as I believe it is an excellent resource for anyone who wishes to better understand the Military Commissions and to ascertain whether a fair trial is being had, has been had or can possibly be had under the Military Commision judicial system. In the short-time prior to the flight, several observers mentioned that they skimmed the Manual and believe it will be useful throughout this upcoming week.

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Prior to departure after being dropped off at Andrews Air Force Base. The brown bag is full of copies of the Guantanamo Bay Fair Trial Manual

My fellow observers are roughly 60% law students and 40% practicing attorneys hailing from everywhere from California to Virginia and, based on our brief conversations thus far, seem an interesting mix of backgrounds including a deputy prosecutor, former members of the military and and a lawyer that works in poverty law. A few folks napped while we waited in the terminal for our 10am departure. My excitement was tempered only slightly by my drowsiness.

 

We checked our bags at around 8:15 AM and other than a prohibition against open-toed or open heeled shoes on the flight, the check-in process was similar to previous flights I have taken. We took a shuttle bus out to the tarmac and boarded our chartered Sun Country Airlines 737-800 plane at roughly 10am and left shortly thereafter. While boarding one of the observers asked whether the first class seats were available. We were told they are reserved for victim’s family members. I later found out that there were 10 victim’s family members that traveled with us to view the hearings.

The flight was pleasant, with a large meal and plenty of space as there were enough empty seats that everyone got their own row (and there were still empty rows left over). I estimate that there were roughly 60 people on flight. I had never heard of Sun Country Airlines, but according to their flight map in my seatback pocket, almost all of their flights depart from Minnesota. I spent most of the roughly three hour flight reviewing the fair trial manual and a summary of the motions for the upcoming week from an e-mail I received a few days ago.

My next post will cover my arrival at Guantanamo Bay, summarize my second day and provide a brief introduction to the AE400 motion scheduled for tomorrow.

 

 

Guantanamo defendant Hadi al Iraqi Fires His Legal Counsel

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

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

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

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

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

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

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

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

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

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

Candid Meeting with Hadi’s Former Defense Counsel LTC Jasper

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

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

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

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

Post Hearing Activities

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

One of the many beautiful beaches at Guantanamo Bay, Cuba

One of the many beautiful beaches at Guantanamo Bay, Cuba

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

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

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

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

Finally headed to GTMO for Hadi al Iraqi Hearings

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

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

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

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

JAB to GTMO

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

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

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

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

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

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

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

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

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

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

Tour of the Expeditionary Legal Complex

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

 Tomorrow’s Hearings

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

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

Hadi’s Guantanamo hearings delayed two days

We are 6 NGO Observers on this trip to Guantanamo Bay, along with our Military Commission escort. Next time we wont stand in the shade for our photos!)

We are 6 NGO Observers on this trip to Guantanamo Bay, along with our Military Commission escort. Next time we wont stand in the shade for our photos!)

The Hadi al Iraqi Guantanamo Bay hearings begin tomorrow (Wednesday, 22 July), two days late due to an issue that apparently arose on Sunday the 19th, our first day in Cuba.

I came to Cuba to observe these war crimes hearings, and though the hearings were postponed, I and the other Observers had a very full two days.

On Monday I went for a 4:00 a.m. run with a fellow Observer. We ran early to avoid the daylight heat and humidity. As required, we carried our base identification card and wore reflective gear.

We then met with the other Observers and our escorts for breakfast at the base dining hall. This gave us a chance to get to know each other and learn about the different non-governmental organizations we represent. At the dining hall we saw members from every branch of the U.S. armed forces. As for the food, well, it was pretty decent.

I'm sharing this tent with the two other male Observers. the 4 female Observers are sharing their own tent.

I’m sharing this tent with the two other male Observers. the 4 female Observers are sharing their own tent.

Who are the Guantanamo Observers this week?

I am representing the Military Commission Observation Project of the Indiana University IU McKinney School of Law (MCOP), founded by Professor George Edwards. Five other NGO’s sent representatives to attend this round of Hadi hearings. NGOs generally are tasked with attending, observing, analyzing, critiqueing and reporting on the military commission proceedings. Our Indiana project, which is also known a the “Gitmo Observer”, is specifically looking at the rights and interests of the full range of Guantanamo Bay military commission stakeholders, including, for example, the defendants, the prosecution, the victims and their families, the witnesses, the media, and the military personnel who guard the prisoners and run the detention facilities.

My 3rd of the men's tent.

My third of the men’s tent.

Our group of Observers consists of two attorneys, four law school students from four different law schools, and one representative from an NGO that focuses on human rights. The diverse backgrounds of this group will help provide different points of view from which to observe the proceedings and, thus, hopefully lead to a fuller review of the hearings.

Internet Access

After breakfast, I met with the other Observers for an informal discussion. We met outside near a particular restaurant so that several of the Observers could use the free wifi available at that particular location.

Internet access is quite an issue at the base. Internet access through a wired ethernet connection costs $150/week. This cost is prohibitive to some NGO’s and to some Observers. The Observers who cannot afford to pay for the wired connection must rely upon free wifi. This service, which is only available at select locations is both slow and unreliable due. This, in turn, runs the risk of limiting timely reporting from Observers.

The NGO Library

I then went to the NGO library to learn what resources were present to aid us in our observations. A number of NGO’s, including the Military Commission Observation Project through Indiana’s IU McKinney School of Law, stocked the library with helpful written material.

The MCOP most notably included two resources (1) a briefing book that includes the Manual for Military Commissions and (2) a copy of the 500 page Executive Summary from the Senate Select Committee on Intelligence’s Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program.

To understand the rights of stakeholders, it is important to understand the legal framework in which stakeholders exercise their rights. As such, the Manual for Military Commissions is a great resource as it sets forth how military commissions, such as the one handling the al-Hadi al-Iraqi case operate, both in and outside of court hearings. This includes, for example, discovery issues, trial rules, and sentencing procedures.

The second document will be helpful as the Hadi defense team has made numerous references to this study through many of its pleadings. This document is important as it is referenced by the defense in many of its pleadings.

Big Day Tomorrow

It is hard to believe that the hearings begin tomorrow. I’m excited about this opportunity to watch the hearings, analyze the proceedings, and then report to you.

I and other Observers have been using the Guantanamo Bay Fair Trial Manual, that provides insights as to what we might wish to look for as we assess whether stakeholders are receiving a fair hearing.

Greg Loyd – Guantanamo Bay, Cuba

Guantanamo USS Cole Case Day 2 — Hearings To Resume April

USS Cole on 1st deployment after 2000 suicide bomb killed 17 US sailors and wounded dozens more

USS Cole on 1st deployment after 2000 suicide bomb killed 17 US sailors and wounded dozens more

Yesterday, Monday (March 2) was a very interesting day at the court dealing with Unlawful Influence and hearsay evidence in the al Nashiri case against the alleged mastermind of the 2000 U.S.S. Cole bombing in Yemen. Judge Spath ruled that a pentagon official (General Ary, retired) had exercised the Unlawful Influence over the case, and disqualified Ary from acting as “Convening Authority”, who is the person who organizes resources for the Military Commission case. The USS Cole case no longer has a Convening Authority, and Judge Spath declared that there  would be no further evidentiary hearings this week and that court will reconvene in first week of April 2015.

End of March USS Cole Session

Judge Spath addressed the next set of hearings, which happen to be scheduled to fall on the Easter holidays (first week of April). This was initially scheduled to be for two weeks but will be a one-week hearing after the Unlawful Influence “debacle”. The judge stated that in order to show that there was no pressure on him, he would truncate this April session. There is a possibility that travel to Guantanamo may be delayed to allow people to celebrate Easter, with the hearings possibly beginning on Monday or Tuesday, and extend into Saturday.

Al Nashiri’s “grooming”

There were several motions heard today, and I mention them in a separate post. I will discuss one here, related to the defendant’s “grooming”.

Mr. Rick Kammen, who is al Nashiri’s “Learned Counsel”, brought to the attention of the court the issue of al  Nashiri’s grooming. Mr. Kammen said the issue had still not been resolved and within the last 10 days, the policy had changed three times.

The prosecution said that the Joint Task Force – Guantanamo Bay (JTF-GTMO), which is responsible for the detention facilities, has endeavored to amend their Standard Operating Procedures to address this and the accused will have access to grooming before court and attorney-client meetings.

The judge added (emphasizing that this was not a ruling) that he expects that no prisoners will be in shackles in court if they don’t have to be, or in prison uniform before the members of the court, regardless of who the accused is.

It is not clear what falls into the category of “grooming”. It seems to deal with issues such as what clothes al Nashiri is able to wear to court, access to bathing facilities, haircuts, and the like. And, shackles in court also was mentioned in the context of this grooming discussion. I find myself wondering what exactly what “grooming” involves.

Whereas I am certain they must have very stringent rules on the Base, grooming  to me seems a basic right, entrenched in the right to humane treatment as espoused in domestic and international law.  The Guantanamo Fair Trial Manual considers the right to humane treatment and humane conditions of detention on page 114.

Furthermore, grooming ties in with the right to be presumed innocent, which is also covered in the Guantanamo Fair Trial Manual. The defendant’s physical appearance in the courtroom may affect the impressions of the jury, the press, the NGO Observers, the victims and their families, and others who may see the defendant. If he is dressed in “prison clothes”, appears to be unclean or unkempt, or is shackled at his hands and feet, an impression might be formed that is different than if he appeared clean and tidy wearing a 3-piece business suit.

Sunset at Girls Cout Beach,  Guantanamo Bay, Cuba

Sunset at Girls Cout Beach, Guantanamo Bay, Cuba

After hearings – The Beach & a Jamaican Dinner

The NGO Observers were taken on a short tour of several beaches on the island by a logistics specialist, Petty Officer Second Class Archie, and then had dinner at the Jerk House. I had authentic Jamaican Jerk Chicken served by a Jamaican (I think), with Jamaican reggae music playing in the background. The only thing that could have made this better is if I had saved room for dessert.

Meeting with the Prosecution; Departure for GTMO

Tomorrow (Wednesday, March 4) we will meet with the prosecution team at 2:00 p.m. and the defense team at 4:30 p.m.

We will depart Guantanamo Bay for Andrews Air Force Base at 10 a.m. Thursday.

It certainly feels like we have been here longer than three days.

The next blog will be list more motions from today, and the blog after that will deal with the life of an NGO Observer at GTMO’s Camp Justice.

(Avril Rua Pitt, NGO Observer Lounge, Camp Justice, Guantanamo Bay, Cuba, Wednesday, 4 March 2015)