I was selected to travel to Ft. Meade, Maryland to monitor U.S. Military Commission pre-trial hearings broadcast live via CCTV from Guantanamo Bay, Cuba to a secure Ft. Meade facility. I represented the Indiana University McKinney School of Law’s Military Commission Observation Project, which has been sending faculty, staff, students, and graduates to Guantanamo Bay and Ft. Meade to monitor these war crimes proceedings. The case I was dispatched to monitor was against Abd al-Rahim Hussein Muhammed Abdu al-Nashiri, who is alleged to have masterminded the 2000 attack on the U.S.S. Cole that killed 17 U.S. sailors, and wounded dozens more, off the coast of Yemen. I observed the hearings on October 18th and 19th.
Arriving at Ft. Meade
I arrived at Ft. Meade on Tuesday morning, October, 18 2016, and went to the base Visitor Center to pick up my badge that would permit me to enter the base. I encountered a slight delay there, as they could not locate my badge. After about fifteen minutes, one of the employees found the badge in a file on the front reception desk. She informed the other employee that all of the badges for the hearings are kept in a folder at the reception desk.
Note: If you arrive at the Ft. Meade Visitor Center and they can’t find your badge, ask if it is inside a folder at the reception desk!
After they found my badge, they took my photograph and handed me a paper badge that would allow me access to Ft. Meade for two days. The receptionist told me to exit through the left side of the parking lot and to proceed to the vehicle inspection area. After a brisk inspection of the vehicle, I was on the base and easily found the McGill Training Center, where the hearing would simultaneously broadcast from Guantanamo Bay, Cuba.
I parked in an apartment parking lot that is located across the street from the McGill Training Center. I made my way into the building and to the door of the viewing room, which was like a medium-sized high school classroom. The video feed was already being broadcast and there were four observers in the room, along with a person who I understand was a contractor hired to oversee the process.
In the back of the room is a big chest with individual small lockers where you can store cell phones. Knowing that cell phones were not allowed to be used in the room, I had left my cell phone in the rental car.
The video was clear, and the sound quality was generally good. At times the video feed or sound would cut out briefly but it was not often and generally only lasted for a couple minutes. The room was very cold both days. I would suggest that anyone observing hearings at the McGill Training Center to dress in layers and bring a light jacket.
al Nashiri Hearing Observations
I noticed that the prosecution’s military counsel, namely Chief Prosecutor Mr. Martins, wore a highly decorated uniform compared to the less decorated uniform of the Detailed Defense Counsel, Ms. Pollio. I have some concern that a jury may be influenced, whether consciously or subconsciously, into believing that Mr. Martin is more credible or knowledgeable because he is more highly decorated than Ms. Pollio. Although a jury may always form some judgment of an attorney’s capability or credibility by their appearance, attorneys in civilian courts do not display their achievements and accomplishments on their clothing. al Nashiri may be prejudiced by the prosecution counsel appearing to be a higher ranked and more qualified military member.
al Nashiri’s Presence in Court
al Nashiri was present for most of the court proceedings on October 18th and 19th.
However, al Nashiri was absent for a little over an hour of the hearing on October 18th. On October 18th, the court took a brief recess and when the court returned al Nashiri was absent. Mr. Kammen, the defendant’s civilian attorney, informed the court that al Nashiri was not feeling well and that he was in a backroom that had a video feed of the court. al Nashiri’s counsel confirmed with the court that he voluntarily absented himself from the court proceedings.
The prosecution said that there was an issue with al Nashiri’s absence because there had been no in court waiver. Specifically, Mr. Martin asked the judge to bring al Nashiri back to the courtroom until there was an in court waiver. The judge said that he was comfortable with al Nashiri’s absence from the court because al Nashiri’s counsel, Mr. Kammen, had spoken with al Nashiri and the absence was going to be brief (approximately thirty minutes). The judge made a finding that al Nashiri voluntarily removed himself from the court proceedings. The hearing went for another thirty minutes or so and then the court took recess for lunch. After the lunch recess, Al Nashiri was back in the courtroom and the judge questioned him regarding his prior absence from the court. al Nashiri confirmed that he was previously not feeling well and that he had voluntarily left the proceedings.
I felt that the judge made great strides to ensure that the record clearly reflected al Nashiri’s absence being voluntary and uncoerced. However, I do feel that the process would be more transparent if the video feed showed al Nashiri more often. Because the video was generally either showing the lectern or the judge, al Nashiri was not seen on the video very often. I would estimate that over the course of the two days I was in Ft. Meade, I saw al Nashiri on the video feed for a total of approximately ten minutes. I would have preferred a split screen that showed whoever was speaking and also showed the defense table. I think the public would benefit from being able to see that al Nashiri was present and engaged in his trial.
I hope we are not arguing about parking spaces
During most of the October 18th and 19th hearings, the days were spent hearing arguments regarding the defense’s claim that the prosecution may have attempted to unlawfully influence the Court of Military Commissions Review (“CMCR”). The defense had filed a motion to compel the prosecution to release all ex parte communications. The prosecution had put together a binder of emails, which they voluntarily provided to the judge for him to perform an in-camera review. The prosecution claimed that the emails were administrative in nature and non-discoverable. The prosecution further claimed privilege and judicial privilege for the emails. The judge informed the parties that the only emails at issue were two email chains–-exhibits 355e tabs 3 and 10. The judge stated “wouldn’t it be better for the public trust to hand them to the defense.” The judge said that he was keeping the public trust in mind. Many times throughout the hearing the judge asked if this was really something they wanted to spend time arguing about. It appeared to me that that judge thought that the two emails chains were not something that the court should be spending two days hearing arguments about.
The defense’s position was that the emails must be relevant and important because the prosecution was fighting so hard to keep them out of the defense’s hands. The prosecution seemed to be arguing that it was more about principle and that they were not legally required to turn the emails over. In this respect it appeared that the prosecution was less concerned with the public’s interest in having an open hearing. Although, the prosecution did argue that it was better for the public’s trust in the proceedings to follow the law and not turn over emails that are not discoverable. Mr. Kammen retorted by stating that secrecy destroys the public’s confidence, especially in a court where the rules are constantly changing. Mr. Kammen closed the defense’s argument by saying that he hoped that they had not spent all day arguing about emails that were related to where the prosecution was supposed to park.
The judge granted the motion, but only as to exhibit 355e tabs 3 and 10. The judge stated that one tab is about parking and the other tab is an administrative discussion about who is going to do a security review. The remainder of the discovery request was not granted and will stay under seal in the record. The judge appeared to be annoyed that two days had been spent arguing over emails that were administrative and generally unimportant. The judge stated that the emails are not privileged and not discoverable. However, because the prosecution had voluntarily provided them to the judge for an in-camera review, he was obligated to make a decision on them.
After the decision, Mr. Martin basically stated that he did not think that the judge had the authority to order the government to turn over the emails. The judge retorted that he was confident that he had the authority. The judge informed Mr. Martin that he had made a decision and had the authority to do so. He told Mr. Martin that the court was about to take a recess for lunch and that Mr. Martin should turn the emails over to the defense during the recess. The judge also told the defense counsel to think about what remedy they would ask for in case the prosecution did not turn over the emails. After the court returned from lunch, the prosecution turned over the exhibits 355e tabs 3 and 10, although Mr. Martin continued to argue that he did not believe that the government was required to do so.
I understand the need to follow the law. In this case, considering that the prosecution had voluntarily provided the emails to the court, I think it was proper to release them. If the emails were not released, it would have seriously eroded my confidence that the emails were only administrative in nature. The prosecution fought very hard to keep the emails out of the defense’s hands, and it seemed to me that the emails likely contained ex parte communication that was not just administrative. I was somewhat surprised when Mr. Martin agreed to turn over the emails after the lunch recess. However, his doing so made me feel that the proceedings were more transparent and that the prosecution was not concealing unlawful ex parte communications.
Repeated Defense Counsel Complaints
Unlike an Article Three court, the defense cannot simply call anyway witnesses that they would like to question. Mr. Kammen repeatedly stated that the prosecution must approve of any witness that the defense wishes to call. If a person’s testimony was going to be severely adverse to the prosecution, it appears, according to Mr. Kammen’s argument, that the prosecution could deny the defense the opportunity to call that person as a witness. This seems very unfair and it would certainly hinder the defense counsel’s ability to properly defend al Nashiri. Additionally, the ability to keep relevant witnesses out of the courtroom significantly hurts the transparency of the proceedings. If the Commission wishes to have transparent proceedings, all relevant witnesses should be allowed to testify. This is the only way to ensure that the proceedings will result in a just outcome.
Another claim by the defense is that al Nashiri’s housing during the hearings is inadequate. The defense wants to call two witnesses, both are employees at Guantanamo Bay, but the prosecution is not allowing them to call the witnesses. At the same time, the prosecution is stating that the defense has the burden to prove the claim. al Nashiri’s defense counsel, Mr. Kammen, complained that it is unfair for him to have the burden to prove a claim but not have the ability to call the witnesses that he needs in order to prove the claim.
At the end of the day, I feel that the judge was working hard to get past some of the petty arguments raised by both sides. He came across as being very aware that the process needed to be as transparent as possible. However, the case does not appear to be close to actually going to trial yet. Considering that this case has been going on for 16 years, there has to be a way for the Commission to act more efficiently, while also serving justice in a fair and transparent manner.
For those who are interested in being an observer, I highly encourage you to apply. The IU McKinney Military Commission Observation Project is a unique opportunity and has been designed to get observers up to speed quickly. I found that the Guantanamo Bay Fair Trial Manual was very helpful for gaining an understanding of the proceedings and the background information necessary to understand the hearings.
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