I was scheduled to travel to Ft. Meade, Maryland, the week of Monday, 14 August 2017 to monitor pre-trial hearings in the Guantanamo Bay U.S. Military Commission case against an alleged high-level al Qaeda member. The hearings were to be broadcast via-closed circuit television (CCTV) from Cuba to the Ft. Meade army base, where I have monitored hearings in all the active Guantanamo Bay cases. The U.S. government has stated that Guantanamo Bay (a/k/a Gitmo) proceedings should be open and transparent, and that CCTV broadcasts to Ft. Meade promote openness and transparency.
Now, unexpectedly, it is unclear whether the CCTV will operate this week, and whether I and others will be able to observe this week’s proceedings at Ft. Meade.
I was informed that the military judge in charge of the case has reversed an earlier ruling, and has now prohibited this week’s proceedings from being broadcast to Ft. Meade. His new ruling apparently permits 5 monitors who traveled to Guantanamo this weekend to observe / monitor the hearings while sitting in the spectator section of the Guantanamo courtroom. However, monitors such as myself who planned to observe from Ft. Meade are effectively banned from observing this week’s proceedings.
In addition, presumably members of other stakeholder groups – such as victims and their families (VFMs), media, and the public at large — are likewise banned from observing this week’s proceedings at Ft. Meade. And, again, the only observers permitted to monitor are those who happened to be on the plane to Guantanamo Bay this weekend.
What are this week’s hearings about?
The defendant in this week’s case is Mr. Hadi al Iraqi (Mr. Nashwan al Tamir), who is an alleged high-level member of al Qaeda who allegedly perpetrated war crimes. This week’s hearings are out of the ordinary in that they would not consist primarily of prosecution and defense lawyers arguing about a range of issues that are typically resolved pre-trial. Instead, this week would consist of testimony by a different Guantanamo detainee, Mr. al Darbi, who pleaded guilty and is cooperating with the government as a witness against Hadi. Ordinarily, a government witness would testify at the actual trial, and not during the pre-trial hearing stage. However, al Darbi is set to be repatriated to his home country soon, and is not expected to be available to testify live during the trial. This week’s testimony is in part a stated attempt to “preserve” al Darbi’s testimony (in the form of a deposition), which could be introduced against Hadi at trial.
My interests in this week’s hearings
I am a professor of international law, and founded the Guantanamo Bay U.S. Military Commission Observation Project / Gitmo Observer at Indiana University McKinney School of Law. (www.GitmoObserver.com) The Pentagon granted our Project status that permits us, as a non-governmental organization (NGO), to send observers / monitors to Guantanamo Bay and Ft. Meade to observe / monitor hearings.
Our Indiana Project is a independent and objective. We are not aligned with any side or party associated with the military commissions.
Among other things, we have developed the Guantanamo Bay Fair Trial Manual,* which independently and objectively examines rights and interests of all categories of Gitmo stakeholders, not just the rights of the defendants. The Manual explores rights and interests, under international and U.S. law, of the following stakeholder groups: defendants (as mentioned), the prosecution, victims and their families, media, witnesses, the Court and its employees, the Guantanamo Bay guard force, other detainees, NGO observers, and others.
Many of our Indiana observers have traveled to Ft. Meade and Guantanamo Bay to monitor hearings. We publish, among other things, blog posts on http://www.GitmoObserver.com.
The judge’s earlier ruling – Yes, NGOs can view at Ft. Meade this week.
The judge in the Hadi case initially ruled that the taking of al Darbi’s testimony, in the form of a deposition, would be open to the public. For purposes of this blog post, that meant at least two things:
NGO representatives would be permitted to fly to Guantanamo Bay, Cuba to be present in the courtroom’s spectator gallery so they can observe / monitor the deposition live; and
NGO representatives, and other members of the public, would be permitted to travel to Ft. Meade, Maryland where they could observe / monitor the deposition via close circuit television.
NGOs being permitted to observe at both Gitmo and Ft. Meade has been standard for hearings for years.
The Judge’s most recent ruling – NGOs are prohibited from observing at Ft. Meade this week
This past week, word circulated that the judge had issued an order prohibiting NGOs (and presumably prohibiting other stakeholders) from viewing the al Darbi deposition via CCTV at Ft. Meade. Apparently NGOs who traveled to Guantanamo this weekend could still observe the deposition live in the courtroom.
I have not actually seen the judge’s ruling, as his rulings, like all filed pre-trial hearing motion papers, are not ordinarily released to the public until the papers undergo a security check, a process that takes at least 14 days. However, word of the ban reached me and others.
Options for me to observe / monitor the hearings this coming week?
I had the opportunity to apply for an NGO observer slot to travel to Guantanamo Bay to monitor the hearings live this week from a seat in the courtroom’s spectator gallery. But, I decided not to apply in part because I believed I would be able to observe this week’s hearings at Ft. Meade.
Had I known that the judge would reverse his ruling and ban NGOs from observing the hearings at Ft. Meade this week, would I have applied for an observer slot to travel to Gitmo for the deposition? Most probably yes.
Though I had a law lecture scheduled in Australia for the week following the Hadi hearings, I would have sought harder to figure out a way to get to Gitmo for the deposition and still arrive in Australia for my lecture. I had figured out that I could do both – fly to Gitmo and fly to Australia, and that would have been my preferred course. But, again, I decided that I could observe at Ft. Meade this time and avoid scheduling issues.
When I learned that the judge prohibited CCTV feed at Guantanamo this week, I thought about how I could get to Gitmo this weekend. It turned out to be an unsurmountable challenge, because, for example, timing was short for the paperwork that needed to be completed before Gitmo travel.
My plans for the al Darbi hearing / deposition
At the moment, I plan to travel to Ft. Meade on Monday morning, 14 August 2017. Though I have been informed that the feed has been cut to Ft. Meade for Monday, the possibility exists that the judge will change his mind and re-open the hearings at Ft. Meade, making it possible for me, other NGO representatives, and other stakeholders to observe / monitor there – again, if the judge orders the CCTV to go forward for Ft. Meade and if any of us is able physically to be present at Ft. Meade this week.
George Edwards
* The full title of the Manual is “Guantanamo Bay Fair Trial Manual for U.S. Military Commissions: An Independent & Objective Guide for Assessing Human Rights Protections and Interests of the Prosecution, the Defense, Victims & Victims’ Families, Witnesses, the Press, the Court, JTF-GTMO Detention Personnel, Other Detainees, NGO Observers and Other Military Commission Stakeholders”
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.
From my perch as an Indianapolis city employee working in economic development, I don’t often receive an email inquiring about the seriousness of my interest in traveling to Guantanamo Bay, Cuba.
But that’s exactly what happened on January 31, 2017.
Indiana University McKinney School of Law Professor George Edwards, an International Human Rights Law Professor of mine and who was also my third-year law school research paper faculty supervisor, emailed me with a simple question: “Are you available for a quick phone call?”
I was puzzled. I had, years ago, inquired about the law school’s then new Guantanamo Bay Military Commissions Observation Project (MCOP), but after a few exchanges with Professor Edwards and other inquiries, I realized it was simply bad timing on my part.
That said, it turns out I had been in contact with Professor Edwards on an unrelated matter, and renewed my interest in traveling to Guantanamo Bay to monitor military commissions. Professor Edwards and I discussed the project, and he impressed upon me the gravity of the undertaking.
Professor Edwards asked If I really want to travel to Guantanamo Bay to do the work; which includes lots of preparation, work once you’re there, and work once you return.
He reminded me of the importance of the work of our law school’s Program in International Human Rights Law generally, and about the importance of its Guantanamo Bay work which began more than a decade ago.
It was quite clear this wasn’t a passive trip to Cuba; this was to be taken very seriously and the hard work required of each individual would ideally result in substantive and value add contributions to the policies and procedures Professor Edwards and his partners have worked hard to create.
After a discussion with my spouse, I was officially committed.
Background and Experience
For some background, I was not deeply involved with human rights when I was a law student, and I am not a human rights attorney. Since graduating from McKinney law school in 2010, I have worked in the private sector for a global aerospace company and in the nonprofit sector for a disabilities services organization. I currently work for the City of Indianapolis managing real estate transactions and economic development projects and strategy.
In short, I did not think that I was an obvious candidate for a mission to Gitmo as part of a legal proceedings observation effort. But, it is my hope that my outside viewpoint and fresh set of eyes can be beneficial and offer a different perspective as I observe and try to contribute to the understanding of existing guidelines and procedures.
Back to the Storyline
Once I told Professor Edwards I was committing to the assignment, it was time to better understand the process and the various entities involved.
The Indiana University McKinney School of Law Program in International Human Rights Law (PIHRL), under the leadership of Professor Edwards, established the Military Commission Observation Project (MCOP). After the Pentagon Guantanamo Bay Convening Authority granted MCOP Non-Governmental Organization Status, affiliates of Indiana University McKinney became eligible to travel to Guantanamo Bay, Cuba to monitor U.S. military commissions which were established to try alleged perpetrators of war crimes. Specifically, as observers or monitors, our 5 principal responsibilities are to: (a) attend; (b) observe; (c) analyze; (d) critique; and (e) report on hearings of detainees at Gitmo.
My process began by submitting certain personal information for consideration by the MCOP Advisory Council. Once approved for advancement by the Council, my name was then submitted to Pentagon as a nomination. At this point, the Pentagon can confirm you or deny you. Fortunately, on February 9, 2017, I was “CONFIRMED” by a Pentagon representative.
To be specific; from the Pentagon:
“You have been CONFIRMED to observe the March 18-25 9/11 Week ONE military commission in-person at Guantanamo Bay, Cuba. Currently, the flight schedule is as follows:
Departing from Joint Base Andrews to Naval Station Guantanamo Bay on 18 Mar (SAT) at 1000
Departing from Naval Station Guantanamo Bay back to Joint Base Andrews on 25 Mar (SAT) at 1000.”
I then had to fill out various forms and agreements. In some ways, this has been the most complicated part so far, since each of the documents is different, and each document must be completed following very specific guidelines. Professor Edwards sent my “completed” documents back to me numerous times for me to modify my original entries to comply with Pentagon requirements, and with requirements of the Indiana University administration including IU lawyers who review some of the forms before we observers are permitted to return them to the Pentagon. The templates that I was given to follow were helpful, but it was nevertheless still a challenge.
Finally, all the documents were reviewed by Indiana University officials (including the IU Treasurer) and by the MCOP, I sent all requisite information to the Pentagon in the hopes that they would grant me full clearance.
What Hearings will I monitor?
There are three sets of hearings ongoing at Guantanamo Bay now. During the week of my scheduled monitoring (19 – 25 March 2017), hearings will be held in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. I remember where I was on September 11, 2001, and I cannot escape the impact it had on me. Pictured in this blog is Khalid Shaik Mohammed, the alleged mastermind himself, who was, among other things, waterboarded 183 times.
This is Actually Going to Happen?!?
At this time my focus has turned to the nuts and bolts of traveling from Indianapolis to Cuba. Easy right? Yeah… I plan to fly to Washington, DC then snag a Lyft and drive to a hotel near Andrews Air Force Base in Maryland, which is around a thirty-minute trip. I will stay overnight there, in anticipation of my morning flight from Andrews in a military airplane directly to Guantanamo Bay, Cuba.
While at Guantanamo Bay, among other duties, I plan to provide updates via this blog site.
I hope to offer unique insights contributions to the existing body of work relating to legal proceedings, policies, and guidelines. I see this as an occasion to provide transparency from an “on the ground” perspective. Very few have had the chance to travel to Gitmo to monitor military commission proceedings; I intend to make the most of this opportunity, for the benefit of all concerned.
This Manual is the product of the hard work performed by Professor George Edwards and other student and legal partners who have been observing at Gitmo for years. It provides many of the policies and procedures that govern the treatment of detainees and the trial and legal proceedings. It is an objective and independent document that is used by observers from other institutions and others as they form their own judgments as to whether Guantanamo Bay stakeholders are being afforded all rights and interests they are owed.
I feel it an honor to be able to observe and contribute to this important document.
I am proud to be an Indiana McKinney School of Law alum, and thankful for the opportunity provided by the MCOP and the Program in International Human Rights Law.
Brent M. Pierce, J.D. ’10
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
I travelled to Ft. Meade, MD to monitor a US Military Commission in the case of Al Nashiri, as I was representing the Military Commission Observation Project, of the Program in International Human Rights Law. The following are a few charges brought by the government: Murder in Violation of the Law of War and Attempted Murder in violation of the Law of War. al Nashiri is the alleged mastermind for the bombing of the USS Cole and other maritime attacks.
Indianapolis to Ft. Meade:
I chose to view the al Nashiri hearings at Ft. Meade during the week of 12/12/2016 and view via CCTV. I flew United Airlines from Indianapolis to Dulles Airport on Sunday, 12/11/2016, where I rented a car and drove an hour to Laurel, Maryland. I stayed at the Days Inn in Laurel, which is fifteen minutes (7 miles) from Ft. Meade. The hotel rates were lower in the area, so I did not mind a 15 minute drive, which is easy to navigate during rush hour.
Arrival to Visitors Center at Ft. Meade:
The hearings were originally scheduled to being at 9:00 AM on Monday, but I learned via email from Prof. Edwards, that the hearings would be delayed for two hours. It was recommended that I arrive at Ft. Meade’s visitors center two hours before the start time of the hearing, so I arrived at 9:00 A.M., so that I could pick up my Ft. Mead Badge to permit entry to the base each day. I went to the Ft. Meade Visitors Center to pickup my badge, I had two show two pieces of ID for them to Issue my Ft. Meade Credential and an easy process (since I had a background check completed through my the Observation Project prior to travel). The line was short at 9AM, but it should be expected for there to be longer lines at 7AM, since that is the time the Visitors Centers open and anyone visiting the base would need to obtain credential prior to entering. I drove through an inspection point, the entry point is directly behind the Visitors Center, which was an easy process. The guards request to see a form of ID with the permit that was obtained at the Visitors Center. The guards will randomly search vehicles, follow instructions of the guards and all will go smoothly. If you are driving a personal vehicle, the guards may request to see insurance paperwork with your credentials and ID. I was driving a rental guard, so I provided the proof of insurance that was purchased through the rental car agency. Federal Law requires that all vehicles have updated insurance coverage when on base.
Observation Day 1
The al Nashiri hearings were broadcast by CCTV into a classroom at Ft. Meade’s McGill training center. When you arrive at the training center, be prepared for security to do a quick wanding, then lock up your cell phone in a small locker in the classroom. It is advisable to leave other devices and laptops in your hotel room or the trunk of your vehicle.
I attended three days of hearings, and each day there was only one other person in the room. That person was responsible for ensuring all phones were stored in the lockers. One the large screen in the font of the classroom, I could see different views of the courtroom at different times. The camera seemed to be pointed at the person who was speaking at the time, whether it was Judge Spath (the military judge), the prosecution or defense lawyers, or the Defendant al Nashiri himself.
At the beginning of the Day 1 hearings, Judge Spath advised al Nashiri that he had the right to be present for all hearings, if he chose not to attend it would not have impact on decision-making regarding rulings to motions. al Nashiri nodded and waved to the judge suggesting that he understood these rights. al Nashiri also waived his right to have the court stop proceedings for specified times throughout the day for prayers.
Whenever I saw al Nashiri, he was sitting in a chair at the far end of the defense table, facing the court. He wore a white flowing shirt, but I was told later that he would wear the suit jacket of his interpreter, who was seated next to him throughout the hearing. Al Nashiri’s hands and legs did not appear to be cuffed, and I was told later that he was not cuffed. I could not see guards on the screen, though I was told that at all times there were at least four or five guards within several feet of al Nashiri at all times, though the guards were not visible to me. As mentioned, an interpreter was visible sitting beside al Nashiri and both wore headsets during the proceedings.
The defense called former assistant deputy of the Convening Authority. Edward Sherran to testify. The questioning by the defense focused on his role as assistant deputy and those of the advisors within the Convening Authority. The defense also called Lt. Col. Lewis, again to offer insight to actions of the Convening Authority at the time Gill was the only advisor that was qualified to work on the Al Nashiri case.
Day 2:
Day 2 focused on a host of motions. The first motion was by the defense, which was to compel witnesses to support the defense claim of the Convening Authority’s unlawful influence. The defense would like to compel three former Convening Authority personnel to testify – Gill, Tull and former deputy Quinn. The defense claims testimony is necessary, as the government continues to not respond with items requested in discovery motions.
The hearings then moved towards what is referenced as the “Kuwaiti Files”. The defense requests intelligence relating to the drone strikes of Al Fahdi, as there is knowledge that there was a connection between Al Fahdi and al Nashiri. The defense argued that the fact the Department of the Treasury placed Al Fahdi on a watch list for his role in the Linberg attack is evidence that there is a connection between al Nashiri and Al Fahdi, and that the evidence is relevant and necessary to a robust, effect defense of al Nashiri. The defense claims that only 20 pages has been handed over by the government, that this is insufficient and that definitely more intelligence must be available, since the U.S. would not have killed Al Fahdi in a drone strike based on 20 pages of documents. The defense argued that the motion to compel government agencies to provide evidence is necessary, as the agencies have not been forthcoming.
The court discussed that the al Nashiri case has been in the discovery phase for five years, that it is necessary to move forward in a timely manner. The remainder of the Tuesday hearing focused on the defense arguing that there would be a violation of Brady and Giglio rulings, which could lead the defense to request a mistrial. Judge Spath stated the Brady and Giglio arguments are available during the appeal process, not during the discovery phase. The defense then argued that the court should still grant the motion to compel, to ensure that a record is established and that a record is necessary for the appeals court to consider post-trial.
After a lunch recess, the afternoon hearings focused on “505” matters, which meant that there were classified hearings that were closed to the public. It became clear that Friday hearings would also be classified and closed to the public.
On Tuesday, at lunch, I found the Ft. Meade food court, that offered several food options, including – Burger King, Boston Market, Philly Steaks, and Starbucks.
Day3:
Day 3, Wednesday morning hearings, were again open to the public and the Afternoon hearings were closed to cover classified matters.
In the morning, the defense raised additional motions to compel the CIA to provide information, especially relating to Black Site interrogations. The CIA claimed that tapes, containing footage of al Nashiri being exposed to enhanced interrogation techniques and these tapes were important for an adequate defense. The defense cited four other witnesses that should also be called to testify; these witnesses would provide information to the black site interrogations. One witness identified was Mitchell, who recently released a book relating to the Black Site operations.
The morning hearing was shorter than the first two days, but it was full of defense arguments as to why government agencies should be compelled to provide evidence, while the prosecution arguments that evidence relevant to the case has always been provided.
Conclusion:
It was fascinating to observe arguments presented by both the defense and prosecution, especially in a case that has been in the discovery phase for five years. I was able to understand the motions in the proceedings, as I reviewed the case summary that is available on the Observation Project’s website and the government web site, which provides transcripts and motion history/rulings. I learned a great deal about the matter regarding enhanced interrogation techniques, which is relevant to the defense of al Nashiri and I am curious as to how the court will approach this matter. Will the court compel a witness, like Mitchell, to testify?
I look forward to the opportunity of attending more hearings in the future, as being a student in the Masters of Jurisprudence program, it was relatively easy to understand the flow of the hearings and fascinating to how a court of law is operating in Guantanamo.
Heather Wilhelmus, MJ Student,
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Sunrise over the snowy Joint Base Andrews Airstrip.
[Posted on behalf of S. Willard]
This morning (Sunday the 8th of January) I am traveling to Guantanamo Bay, Cuba to serve as an observer / monitor of criminal hearings in a U.S. military commission case against Abd al Hadi al Iraqi, who is an alleged high ranking member of al Qaeda Iraq and liaison with the Taliban. The U.S. has charged with war crimes resulting in deaths.
I am an Indiana University McKinney School of Law student on mission representing the Indiana University Program on International Human Rights Law’s (PIHRL) Military Commission Observation Project (MCOP). As an observer / monitor, my role is to attend, observe, analyze, critique and report on the military commissions – both the substance and the process.
My passport and Gitmo flight boarding pass.
I arrived at Andrews Air Force Base, just outside of Washington, DC, at 5:00 a.m. for my flight to Cuba, which is supposed to depart at 8:00 a.m. I checked in for my flight, presenting my passport, my Military Orders, and my APACS (which I explain in an earlier blog). It looks like the flight is on schedule this morning.
I met my fellow NGO observers from different human rights groups (NGOs), and we are almost ready to board our plane to take off for Guantanamo Bay, Cuba from Andrews Air Force Base (which is the home of Air Force 1). We were told that the travel will be about 3 hours and 15 minutes.
I have my boarding pass in hand (see the photo) and my yellow Guantanamo Bay Fair Trial Manual: Excerpts copies of which I distributed to the other observers.
I took a few photos at Andrews this morning. I will post additional photos and substantive posts when I arrive at Guantanamo Bay. Because I am having trouble with wifi at Andrews, I am asking Professor Edwards (the Indiana program founding director) if he will post this Andrews Post for me.
Sheila Willard (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
I was nominated by the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law and confirmed by the Pentagon to travel to Guantanamo Bay, Cuba to monitor military commission hearings in the case against Abd al Hadi al Iraqi, who has requested to be called Nashwan al Tamir, from 9 – 14 January 2017. Hadi is an alleged senior member of al-Qaeda responsible for war crimes.
My earlier monitoring at Ft. Meade
Last month I traveled to Ft. Meade, Maryland to monitor military commission hearings in the Guantanamo case against the 5 alleged masterminds of he 9/11 attack on the World Trade Center and Pentagon. The hearings were held at Guantanamo, but broadcast live into a secure facility at Ft. Meade.
Standing at the entrance to the Visitor Center at Ft. Meade, MD after a long day of observation.
Experiencing the hearings first-hand through live feed at Ft. Meade was intriguing in the sense that it seemed surreal. Watching the alleged 9/11 masterminds as one would any defendant on trial was incredibly interesting, considering that until then, the news was my only source of information regarding these men. Seeing Khalid Sheikh Mohammed’s red beard, and hearing the defendants speak in their native language, followed directly by broken English tinged with what appeared to be annoyance made these larger than life figures come to life.
My Guantanamo Bay travel nomination
When I monitored at Ft. Meade, I was excited, and had an enlightening experience.
But when I was nominated to travel to Guantanamo Bay, I could not believe my eyes, or my fortune. The nomination email came from the program on the night before my first final exam of the fall semester, and I couldn’t wait to finish finals so that I could focus on preparing for my mission. Having had the experience at Ft. Meade and now gaining the experience of witnessing the hearings first-hand at Guantanamo Bay will enable me to contribute to Indiana’s project in a better, more informed way.
I was truly honored to represent Indiana at Ft. Meade, and am truly honored to represent Indiana at Guantanamo Bay.
My Background
My journey to this precise moment has been a long, eventful one.
My mother and father came to the United States in the late 1970’s to escape a military regime in Argentina. They ended up in Texas, where I would be born. When I was at the age of 3 months, my mother returned to Argentina with me in tow to finalize her Visa paperwork, and we were unable to return to the U.S. because the lawyer had not completed the paperwork properly. I was raised for 3 years in Argentina, while my mother and father tried desperately to reunite. Eventually, my mother and I were able to return to the U.S. and the family was reunited.
I moved from Texas to Indiana a couple of decades later to join my husband who is a native Hoosier. Indiana has given me so many incredible opportunities that I never imagined!
Indiana -> Andrews Air Force Base -> Guantanamo Bay, Cuba
Paperwork
The nomination to travel to Guantanamo arrived in the middle of law school finals, but I was determined to see the requirements through.
The Pentagon sent me an e-mail containing 4 documents to complete and return in just a couple of days. The documents required by the Pentagon are 1) Hold Harmless Agreement, 2) Invitational Travel Worksheet, 3) Navy Base Access Pass Registration, and 4) NGO Ground Rules, along with a biography and picture.
I completed the paperwork using templates provided by Professor Edwards, since lawyers and Administrators at Indiana University have specific requirements as to how Indiana University affiliates must complete the paperwork.
I submitted my completed draft paperwork to Professor Edwards who sent it back to me once for revisions. I believe that he wanted to make certain that the completed paperwork met Indiana University requirements so that Indiana officials would endorse the paperwork, and he wanted to make certain that the paperwork met the Pentagon’s standards. The Pentagon has rejected paperwork that was not completed properly, so a second pair of eyes was necessary to make certain I was sending accurate, completed paperwork.
Professor Edwards tracked the documents through the appropriate IU channels for approval. Once I received the stamped endorsed documents from IU, I forwarded these to my Pentagon contact, who quickly approved them the same day.
Preparation: The Game Plan
As I prepare for the holidays with my family visiting from Argentina and Texas, I am also preparing for my mission to Guantanamo. I am paying careful attention to a 76-page document titled “What Human Rights Non-Governmental Organization (NGO) Observers and Others May Want to Know Before Traveling to Guantanamo Bay, Cuba”. The guide may be downloaded by visiting this link (includes 76 pages, 2 Appendices). This document, of which Professor George Edwards is the principal author, provides all of the information necessary to successfully prepare for and complete a mission to Guantanamo. Without this guide, preparing for my mission would be near impossible. I have communicated with previous IU McKinney observers Justin Jones and Aline Fagundes, but having a script to fill in the rest of the details that one may forget has been invaluable in my preparation.
[The Know Before You Go guide (76 pages, 2 Appendices) may be found as a standalone document, or, it is included in the Excerpts (158 pages, Know Before You Go starts on page 75 of the Excerpts), which is a digest of the full and complete Manual (over 500 pages).]
I have also been reading other people’s accounts of travel to Cuba on the Gitmo Observer blog (Justin Jones’ and Aline Fagundes’ account of their mission to Guantanamo), and will continue reading where I left off from my trip to Fort Meade, Maryland in October, where I observed the hearings in the case against Khalid Shaik Mohammed.
I will also begin to prepare my travel arrangements to Andrews Air Force Base in Maryland, where I will depart to Guantanamo Bay.
Sheila Willard (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Today, after 14 years imprisonment at Guantanamo Bay, Cuba, a Yemeni detainee named Mohammad Ahmad Abdallah al Ansi asked the U.S. Government to transfer him from Cuba to a third country. If released, 58 detainees would remain at Guantanamo, down from a record high of 780 detainees.
This parole board like hearing is called a Periodic Review Board (PRB), and was convened pursuant to President Obama’s 2011 Executive Order calling for PRBs to ascertain whether detainees pose a continuing threat to the national security of the U.S. If a detainee does not pose such a threat, he may be repatriated to his home country or transferred to a third country. It is unknown whether the next President will rescind this Executive Order and cease Period Reviews, and whether any of the 5 dozen remaining detainees will be released after January 2017.
President Obama’s 2011 Executive Order calls for three types of PRBs: (a) an Initial PRB for all detainees, involving a hearing at which the detainee may appear and speak on his own behalf; (b) a file PRB, held 6 months after a detainee is denied release following an initial PRB and which detainees are prohibited from attending; and (c) a full PRB, held if after a file review the Board finds that the detainee is a “continuing” risk to US national security.
Al Ansi, who is also known as prisoner number YM – 029, had his initial PRB in February 2016, a file PRB in September 2016, and a full PRB today. This article discusses the initial, file and full reviews.
al Ansi’s initial PRB
At al Ansi’s initial PRB on 23 February 2016, he appeared in person. On 23 March 2016, a month after the initial PRB, the Board made its final determination as follows:
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 significant derogatory information regarding the detainee’s past activities in Afghanistan. Further, the Board noted the detainee’s lack of candor resulting in an inability to assess the detainee’s credibility and therefore his future intentions.
The Board looks forward to reviewing the detainee’s file in six months and encourages the detainee to continue to be compliant, continue taking advantage of educational opportunities and continue working with the doctors to maintain his health. The Board encourages the detainee to be increasingly forthcoming in communications with the Board.
al Ansi’s file review PRB
After his initial PRB, al Ansi had a file review PRB, which he was not permitted to appear, with a Board determination based only on his written “file”. His file review was held on 13 or 14 September 2016 (according to http://www.prs.mil), and on 14 September 2016 (according to the written file review final determination) the Board ruled as follows:
MEMORANDUM FOR THE RECORD
SUBJECT: Periodic Review Board File Review – Muhammad Ahmad Abdalla al-Ansi (YM- 029)
On 14 September 2016, the PRB conducted a file review for Muhammad Ahmad Abdalla al Ansi (YM-029) 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 23 March 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.0. 13567.
I watched al Ansi’s PRB broadcast live from Guantanamo Bay into a nondescript Pentagon conference room this morning, with a handful of human rights advocates and one member of the media.
al Ansi’s Full PRB
Today’s PRB (6 December 2016) as Ansi had a “full” PRB review.
Today’s full PRB, like all the other PRBs, was held at Guantanamo Bay. Today’s session was broadcast by live close circuit TV (CCTV) to a secure location at the Pentagon for viewing by non-governmental organizations and the media.
I observed the hearing in a modest Pentagon conference room, joined by representatives of non-governmental organizations (Judicial Watch, Heritage Foundation, ACLU, and Human Rights First) and the media (Courthouse News). When we watched these proceedings piped in from Guantanamo, we also had 2 to 3 military or civilian escorts or technicians in the room with us, but I will not reveal further information about the identities, ranks or affiliations of these individuals (all of whom are always very friendly and nice!).
Members of the PRB Board – which comprises one representative each from the Departments of Homeland Security, State, Justice and Defense; the Joint Chiefs of Staff; and the Office of the Director of National Security – were not physically at Guantanamo Bay, but watched the proceedings from the D.C. area, presumably from their respective offices.
It is unclear when the Board is expected to make a final determination on this full PRB, and whether that determination will be made before the Obama Administration ends on 20 January 2017.
Some of the words spoken during the hearing were in Arabic, and were spoken by an on-camera interpreter.
An off camera voice, presumably from but not necessarily from Guantanamo, advised in English on the nature of the hearing, the format, and the short agenda.
Another off camera voice read aloud the government’s “unclassified summary statement”, in English, of behavior that al Ansi allegedly engaged in, both before he arrived at Guantanamo and after he arrived.
After the government’s unclassified summary statement, the personal representative read an opening statement in English.
Then, al Ansi’s private counsel read a statement, also in English.
After the statements, an off camera voice asked if anyone had any questions. There were none.
The unclassified portion of hearing ended roughly 15 minutes after it started. Observers were invited to leave the conference room, since Observers are not permitted to observe classified portions of the PRB hearings.
Who is Mohammad Ahmad Abdallah al Ansi?
He is 40 or 41 years of age, born in Yemen. The government paints a picture of him as an avowed war criminal member of al Qaeda, as being loyal to Osama bin Laden, and as a person slated for an aborted hijacking in Asia meant to coincide with 9/11. The government has kept al Ansi in prison at Guantanamo Bay for over 14 years, and has on multiple occasions affirmatively ruled that he posed a threat to the national security of the U.S. Indeed, this same PRB ruled twice this year (February and September 2016) that al Ansi should not be released.
al Ansi’s personal representative and private counsel painted a different picture of al Ansi. The private counsel spoke about al Ansi’s suitability for release, and what he might do constructively upon release. Though the personal representative did not directly speak to the issue of whether he thought al Ansi posed a continuing threat to U.S. national security, the personal representative did not speak against release.
Today’s hearing itself
Today’s full PRB hearing commenced about 9:06 and ended 15 minutes later at about 9:21.
al Ansi sat at the head of a small white rectangular table that appeared to be in a Guantanamo Bay “trailer” (and not in a Guantanamo Bay courtroom). On the long side of the table to his left sat his personal representative in a U.S. military uniform. Directly across from him, to al Ansi right, sat the linguist. Next to the linguist was the private counsel, sitting closest to the camera.
Throughout much of the hearing, al Ansi, who was dressed in white non-descript attire, sat with his elbows resting on the table, hunched a little forward, flipping through documents in front of him, possibly reading through the documents. It was impossible for us to see on the screen what the nature was of the pages in front of al Ansi, or in what language the pages were written. At times he would rest his forearms on the table, with his hand clasped, eyes cast downward.
Government’s unclassified statement
An off-camera woman’s voice read aloud the Government’s “unclassified statement” in which the Pentagon contended that al-Ansi
traveled to Afghanistan in 1999, where he joined al-Qa’ida, swore bayat to Usama Bin Ladin, and served as Bin Ladin’s bodyguard. Judging from other detainee statements and corroborating information [al-Ansi] may have been selected to participate in an aborted hijacking plot in Asia intended to coincide with the 9/11 attacks. He was captured by Pakistani authorities after the battle of Tora Bora in 2001. [al-Ansi] has been mostly compliant with the detention staff at Guantanamo, and his last disciplinary infraction was in June 2014. He has not expressed support for extremist causes or maintained contact with terrorists at large.”
Private Counsel Arguments supporting al Ansi’s request for transfer
al-Ansi’s was represented at this PRB by private counsel Beth Jacob who is a partner at the New York law firm Kelley Drye & Warren, where she represents generic pharmaceutical companies. Before she joined Kelley Drye & Warren, she represented the Port Authority of New York & New Jersey in litigation arising out of the 9/11 attacks, representing 9/11 victims who sought compensation. She had previously been an assistant district attorney i n New York, prosecuting fraud and official corruption.
She only began representing al Ansi since after his initial PRB ruling finding that he continued to pose a threat to national security of the United States.
She pointed out that al Ansi showed her some of the artwork created at Guantanamo Bay, and she showed it to a New York-based artist, who “was struck by his ability and innate talent , as she has written in her letter to this Board”.
In arguing that al Ansi should be released from Guantanamo Bay, she noted that the New York artist and Reprieve said that. “Mr. al Ansi’s art will stand him in good stead if he is deemed transferrable” for several reasons, including: (a) ‘it will give him something to do and a means of expression, in the first days and weeks after his transfer”; (b) “he will be part of the community of artists, which will provide stability and social contacts; and (c) “there i s the possibility of earnings from his art.” She went further to state that “Mr. al Ansi is planning for more practical ways to make a living – he told me he would like a construction job, and among the many classes that he is taking here at GTMO is one about small business.”
In support of her arguments supporting al Ansi’s transfer, his private counsel argued that his: “family still has resources which they are completely willing to use to help their brother start a new life after Guantanamo , as shown by the statements the family submitted to the first board and this panel. His family will be a stabilizing force when he is transferred.
Further, she argued that his health situation supported transfer, though the details of his health situation were not revealed, as a portion of her letter was redacted. She wrote:
The second factor [supporting transfer] is his health. [Redacted][Redacted][Redacted][Redacted] He knows that managing these chronic conditions takes much time, effort and attention, and that he must follow a strict diet and exercise regimen , in addition to his medications.
She argued that if released, he will also have support of the Carter Center, founded by President Carter, and Reprieve’s Life After Guantanamo project, which has helped over three dozen former detainees.
Personal Representative Statement
al Ansi’s personal representative, who was a military officer in fatigues, read a simple, prepared 1-page statement that noted that
al-Ansi has intensely participated in the PRB process”, has “maintained a record of perfect attendance for meetings with his Personal Representative (PR) and Private Counsel (PC) despite the constant change in schedulling”, and that his “professional manner throughout all engagements with his PC and PR has not wavered.
The personal representative noted that:
He continues to enthusiastically maintain his compliant behavior with the Joint Task Force (JTF) Guard Force and continues to engage with the JTF Medical Staff in order to deal with chronic health issues. In addition, Mr. Al-Ansi has not ceased to passionately take advantage of the educational opportunities to include courses in Mathematics , Science, English, Spanish, Life Skills, Computers, Art, and recently started the Arab British Academy for higher education studies. Since July of 2016, he has created an additional 150 quality works of art. Seven additional works of art are included in his case submission. Recently, he has enrolled i n Small Project Management , Business Administration, Accounting and Ledgers classes.
Unlike other personal representatives in other cases, this Personal Representative did not say whether or not he believed that al Ansi is or is not a threat to the security of the United States”.
By George Edwards,
Professor of Law, Indiana University McKinney School of Law
Faculty Director (Founding), Guantanamo Bay Periodic Review Board (PRB) Project
Faculty Director (Founding), U.S. Military Commission Observation Project
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
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.
Today I traveled to Ft. Meade, Maryland to observe pre-trial hearings in the criminal case against 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon. The hearings are being broadcast live from Guantanamo Bay, Cuba, into the Post Theater at the Fort Meade Army Base, and can be viewed there by media, human rights non-governmental organizations (NGOs), victims and victims’ families, and other stakeholders.
I traveled there as an official NGO Observer sponsored by the Military Commission Observation Project (MCOP), which Professor George Edwards founded at Indiana University McKinney School of Law. Our Project, which is also referred to as the Gitmo Observer, has sent dozens of IU McKinney Affiliates — faculty, staff, students and graduates — to Guantanamo Bay, Cuba and Ft. Meade to attend, observe, analyze, critique and report on these hearings.
My trip to Maryland – Sunday
I flew to Maryland last night, and had time to re-review the wealth of background material the Project provided. One important resource is the Guantanamo Bay Fair Trial Manual – with lead author Professor Edwards, and whose researchers have included many IU McKinney affiliates. The Manual provides significant information — general and basic, as well as highly specialized information — about the military commissions. It summarizes the applicable law, explains the charges, identifies the individuals and entities who have rights and interests associated with the tribunal, describes a plan that Observes might follow as they carry out their observation mission, and even provides a chart of a who’s who in the courtroom. The Manual is a must read for anyone interested in Guantanamo Bay hearings.
We are in front of the McGill Training Center, the new site for Guantanamo video viewing.
Closed hearing – Monday morning
Early this morning I met Professor Edwards at the hotel, and discussed final details before we went to the army base, which happens to be the home of the National Security Agency (NSA) and other intelligence entities.
We were forced to modify our plans to observe hearings of Khalid Shaikh Mohammad (who was waterboarded 183 times) and the other 4 defendants accused of planning the September 11th attacks. We learned that the military judge decided that today’s hearings would be “closed”, meaning that Observers were not permitted to observe. I was disappointed that I would not have a chance to witness today’s hearings. But, it was still a very worthwhile trip.
What we did at Ft. Meade – hurdles & highlights
The day had highlights and hurdles. I’ll mention some below.
First, Fort Meade recently instituted security procedures that require new visitors to stop at the Visitor Center at the base’s Main Gate (Reece Road Gate) and collect a hard plastic badge. Ordinarily Observers would submit their personal information 10 days before they arrive for a hearing, and can pick up their sturdy badges quickly at the Visitor Center. These procedures apply not only to military commission observers, but also to anyone with business on the base, and includes civilians visiting family.
We arrived at the Visitor Center to pick up my badge. We had quite a wait. There were dozens of other people also seeking to get badges. I was grateful that Professor Edwards had a permanent Ft. Meade badge, which made it easier for me to get processed in. The good news is that once you get cleared, you can swipe your badge at any of the gates and drive onto the base, directly to the viewing site.
A word to the wise for IU McKinney Affiliates who plan to observe Guantanamo Bay hearings at Fort Meade: Bring your drivers’ license and passport, and arrive early.
The Guantanamo Bay Fair Trial Manual is an invaluable tool to help prepare for an Observation mission.
Second, after I gained clearance to enter the base, Professor Edwards and I went to the McGill Training Center, which will soon be the new permanent site for video observations of Guantanamo proceedings. (Until now, all the video hearings were broadcast into a large auditorium at the Post Theater, where they show feature films in the evenings and on weekends.) A staff member escorted Professor Edwards and me through the training center, and explained that the site change had been made for several reasons, including the ability to move hearings to a variety of different rooms to enhance security by keeping exact screening locations unknown until the hearings take place. Most of the rooms at the training center are also much smaller than the Post Theater auditorium, which may make sense since at times only a small number of Observers attend hearings on the base.
Outside the Post Theater, where “Central Intelligence” was being screened — $6.00 for adults, and $3.50 for children.
Third, Professor Edwards and I went by the Post Theater, where many IU McKinney Affiliates have viewed Guantanamo proceedings. Unfortunately, the doors were locked and we couldn’t go inside. But, based on what I have heard about the actual theater – that happens to be showing the PG film “Central Intelligence” now (see photo) – it’s very much like a Broadway theater with a big screen set up on the stage to show the Guantanamo Bay feed.
Fourth, Professor Edwards was able to brief me on the status of the Khalid Shaikh Mohammad 9/11 hearings, the substance of some of the upcoming motion hearings that I had hoped to observe today, other cases pending for trial, and the one convicted detainee who is awaiting sentencing. He also briefed me on the Periodic Review Board (PRB) that he observed at the Pentagon on Thursday the 14th, in which a Libyan detainee asked the Board to send him back to Libya or to a third country for resettlement. That PRB observation is through the IU McKinney Periodic Review Board Project.
Fifth, it was good to tour the facilities mentioned above. It was also interesting to drive around the base, appreciate its size and the breadth of work performed there.
Another shot in front of the Post Theater
Conclusion
Although I was disappointed that I could not observe a hearing today, I am glad that I made the trip, and I am proud that the McKinney School of Law and our Military Commission Observation Project provides this very special opportunity to members of our community.
Every IU McKinney Affiliate – faculty, staff, student, graduate — is invited to register for the possibility of undertaking an Observer mission to Ft. Meade, or to Guantanamo Bay, Cuba, itself. Details about this process can be found here.
Ismael Ali Faraj Ali Bakush, Guantanamo Prision # ISN 708, asked Board to release him
This morning, Ismael Ali Faraj Ali Bakush (ISN 708), who is a Guantanamo Bay detainee from Libya, pleaded to a group of U.S. officials that he is not a threat to U.S. national security, and he should be repatriated to Libya or resettled in a 3rd country. Bakush is around 47 or 48 years of age, and has been held at Guantanamo Bay for a month shy of 14 years. Today he argued for his freedom from the prison, where he has lived for almost a third of his life.
This hearing, which is called a Periodic Review Board (PRB), was conducted pursuant to a 2011 Executive Order which has required most detainees to have a “periodic review” of their detention status. Though Bakush has had similar reviews under now defunct processes, this is his “initial review” (or “initial PRB”) under the 2011 procedure.
If a detainee is cleared for release after his initial review, he would have no additional hearings. If he is not cleared for release he would have a “file review” every six months. If he remains uncleared, he would have a “full review” every three years.
About 60 the 76 men remaining captive at Guantanamo are entitled to PRBs per the rules, and about 55 have had an initial review. Many who have had initial reviews were subsequently cleared for release, and many of those have actually been released post-initial review.
PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings.
Getting to the PRB hearing; the other observers
Bakush’s initial review today was likely similar to the 55 or so initial reviews held since the 2011 Executive Order was implemented in 2013. Today’s PRB was my first, having multiple times been denied permission to observe. I had some sense of what to expect, having read reports from media and non-media representatives who had viewed earlier PRBs, but I also believe that the more qualified people who observe the proceedings first hand, the greater the transparency.
I was up early to take the Metro from DC to the Pentagon, which is where PRB observation takes place now, rather than its earlier viewing location at a Virginia building near the Pentagon. It was suggested that we arrive at the Pentagon not long after 7:00 a.m., to be certain that all security and other formalities would be completed so we could adjourn to a special conference room before the 9:00 scheduled PRB start.
When I was at the Pentagon a few months ago, the new Visitor Entrance was under construction, and it was cramped and unwieldy to gain access to the mammoth facility. The new Visitor Entrance is markedly updated and spacious, with significantly more x-ray machines and other security measures in place. Though no clear signage instructed visitors to the appropriate queues (e.g., no sign for the uniformed military personnel line or the “other” line), it was still quite easy and quick to be processed – at least at that hour on a Thursday morning.
After clearing security, I entered into the Visitor Waiting Area (after another guard made certain that I still had the Visitors Badge that had been handed to me just a few yards before I passed through the airport-like metal detectors), where I was soon joined by what appeared to be contractors, uniformed military personnel, a high school group, an ROTC group, a group of dozens of Japanese military personnel clad in crisp white uniforms, and others – waiting to be escorted into the Pentagon proper.
Two representatives from the Periodic Review Secretariat (PRS) came to collect the 5 non-media observers, and we all processed into the main complex and walked down multiple hallways in the Pentagon maze. Though I know the names of our escorts, and the name of the offices that housed the conference room where we observed, out of an abundance of caution, I will not provide details of them.
The 4 other observers consisted of a an undergraduate intern from a different DC-based organization, a person who had graduated from law school a year or so ago and was working for a DC-based organization, an investigator from a DC-based organization along with that person’s undergraduate intern. I did ask myself about the observer selection process, taking into account the rounds of application submission / denial / application supplements I went through to get cleared for 2 specific hearings only.
Coincidentally, I knew one of the other observers from another organization with which she had been previously affiliated.
Reaching the Pentagon hearing room
We observers and our military escorts snaked our way down multiple, high-ceilinged corridors in the complex, passing pale nondescript doorways and archways that led to seemingly reinforced entry points into high-security areas. We arrived at the door of an office that looked like a typical government office like those I had seen in any number of other Departments or Agencies – standard desks and chairs, file cabinets and computers, and clutter.
Off to the side of that office was a door leading into what I would learn was the conference room where we would observe the hearings. Before reaching that conference room door, we had to relieve ourselves of our electronic devices – phones, laptops, iPad, Fitbit – anything with an on / off switch. We placed all of our items on a table.
Several of us went on a Starbucks run, down to the Pentagon’s expansive restaurant area. It was like any other Starbucks, except that while standing in line our group could not fiddle with our mobile phones, as we had already been liberated of them. It gave me a chance to become reacquainted with the young lawyer observer whom I had met before.
Getting situated in the hearing room
After refreshments, we winded our way back to the nondescript office. It was almost 9:00, the time for the PRB to begin.
We filed past the table that held our electronics, and entered the conference room. We sat around a conference room table that seemed to have just enough seats for the 5 observers, our escorts and a couple of other Department of Defense people who joined us, both uniformed and non-uniformed.
The observers all were required to sign another document (in addition to the Ground Rules we previously signed), this one swearing that we knew the rules related to SCIFs — sensitive compartmented information facilities – and that we were complying with those rules, including not having recording devices in our possession. Another reminder to us to double-check our pockets for extra mobile phones, etc.
This conference room was very small, packed with the conference table and chairs, and lots of other equipment occupying almost every square inch of the room’s real estate, including, as I recall, the walls.
There was a big screen on one wall, positioned such that almost no one in the room had a natural, straightforward view of it. I chose a seat from which at least I didn’t have to turn my body to see the screen.
As 9:00 got closer, the Observers shared small talk. Others in the room sat quietly doing their jobs related to the technical aspects of the hearing, or maybe perhaps observing the observers–I’m not sure.
The Guantanamo side of the camera – the PRB begins
Initially I sought to absorb the environment of the room, but I also focused on signing the SCIF form and exchanging pleasantries with fellow observers (Have you attended a PRB before? You’re a college junior – do you plan to go to law school? What issues are you working on as a summer intern at your organization?)
All of a sudden, we began to hear distant voices over the web-shaped speaker nestled in the center of the conference room table. Audio checks.
Almost precisely on time, the screen came to life. We could see a small, barren-walled claustrophobic room in which sat a very small rectangular table with 3 chairs, which was surrounded by 3 men.
For all PRBs the detainee is physically in Guantanamo Bay. During the hearing, he sits at the head of the rectangular table on the Guantanamo Base, flanked by a linguist who sat at a place setting on one side of the table. The linguist sits directly across from the detainee’s Government-appointed personal representative. Seated on 3 sides at the end of a rectangular table, the arrangements would have been suitable for a shared meal among the 3, or board games. Had Bakush had private counsel, perhaps that person would also have sat at the table.
A video camera is pointed towards the three sitting at the Guantanamo table. The camera faced Bakush head on, and captured the right side of the face of the linguist’s and the left side of the face of the personal representative. The linguist and the personal representative had to turn their heads slightly to see and speak directly into the camera.
At 9:08, a few minutes past the appointed hour, the hearing began.
Eyes naturally gravitated to the focus of the hearings – on Bakush. He appeared hunched forward over the stack of white papers on the table, dressed in white gown flannel-like top that may have been local to Libya. His full, long, seemingly dark beard appeared to touch the table as he leaned forward. The screen appeared to be a little fuzzy, so I cleaned my glasses. The screen was still fuzzy, with the faces a bit blurred.
Bakush’s facial expressions appeared not to change dramatically throughout the 13-minute hearing. It was impossible to know whether he understood what was being said or read, as virtually the entire hearing was conducted in English, and I do not know if he understands English. He waived reading of the unclassified government document in Arabic.
Was Bakush emotionless during the PRB? Was he detached or interested? It is impossible to know what was going on in his mind, and it does not do justice to try to read what could be made out of his expressions, his mannerisms, or his posture.
As documents were being read into the record in English, Bakush from time to time would flip through white papers sitting in front of him on the table. I do now know what, if anything, was written on those sheets, or what language any text might have been. Perhaps those pages contained his own personal statement that he would read into the record later? The observers were not permitted to stay in the room while he, through his own mouth, made his personal plea for release from Guantanamo.
A distant voice was heard listing out the titles / roles of various people who were present at the hearing, either at Guantanamo in the hearing room, or elsewhere.
Others present for the hearings 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. Presumably each of those representatives watched remotely in his or her office in the DC area. Also present for the hearing were the Legal Advisor to the Board; the Case Administrator; a Hearing Clerk; and a Security Officer, though it is not clear where these individuals were located at Guantanamo Bay or elsewhere.
The PRB hearing itself
The PRB hearing itself lasted a total of about 13 minutes. The clock on the wall had a time different from the time announced by the distant voice piped in through the speakers, and those times were different from the time on my watch. I didn’t catch the precise number of minutes. I thought I would be able to see the time on the transcript, but the Pentagon posted a notice indicating that Bakush requested that the public transcript of his hearing not be posted online.
Suffice it to say that the hearing was very short.
After the roll call of attendees that began the hearing, a voice said something like this — “This board is called to order. This board is convened to determine whether continued law of war detention is warranted for detainee [Ismael] in order to protect against a continuing significant threat to the security of the United States.” [Quote based on notes and was not verified as the transcript was not available on the PRS website online after the hearing.]
The first document read into the record, in English, was the Government’s Unclassified Statement. It was read by a woman who did not appear on camera. It answer the question of who does the U.S. Government believe Bakush is and what does the U.S. Government believe Bakush did. Essentially, the Statement summarized reasons that the U.S. believed that Bakush poses a continuing threat to U.S. National Security.
Government views on “Who is Bakush”?
First, it should be noted that the allegations that the government made against Bakush in its unclassified summary are not criminal charges. That is, the government has not levied any criminal charges against him in the Guantanamo Bay U.S. Military Commissions. These allegations related to the Government’s assessment as to whether Bakush is a threat to US national security and whether he should be released from detention.
The unclassified summary document alleges that Bakush alleges in definite terms that Bakush “was a Libyan Islamic Fighting Group (LIFG) explosives expert who trained al-Qaida members”, and he “developed close relationships with several al Qaida leaders and provided explosives training to LIFG and al Qaida operatives, including some who later conducted attacks in Kuwait and Morocco”.
A number of other allegations against Bakush were couched in more tentative terms, such as “probably” – he “probably” “associated with and provided operational support to” key al Qaida figures. He “probably” was in Afghanistan from 1991 – 1994, and again starting in 1998.. He “probably helped” al Qaida, and “communicated regularly with prominent” al Qaida figures, including “possibly” Abu Zubaydah and “probably” senior al Qaida leader Abu Faraj al-Libi. However, using stronger language, one allegation was that he “almost certainly” “plotted to kill Libyan leader Moammar Qadhafi”
The full text of the Government’s Unclassified Statement follows:
Bakush’s Government Appointed Opening Personal Statement
Bakush’s U.S. Government-Appointed Personal Representative, dressed in fatigues, said in his Opening Statement that he was “presenting “Bakush’s case this morning”. He said that Bakush had “been cooperative and receptive while meeting with me”, and that Bakush “is eager and excited to begin a new chapter in his life.” He said that Bakush “has learned to be more opened minded [sic], tolerant and accepting to others while living in a communal living setting”, and that Bakush “believes that his communal living arrangement allows him more opportunities to gain exposure for himself to other detainees’ cultural and religious backgrounds”, and as a result, Bakush “now respects and values the opinions of others from various cultural backgrounds”.
The Personal Representative said that he “was not able to contact [Bakush’s] family, but understand from our discussions that his mother has properties that would enable her to offer [Bakush] financial support. His cousin is employed and is also willing to help [Bakush] financially”. It was not mentioned why the Personal Representative was unable to contact Bakush’s mother, to find out firsthand about the “properties that would enable her to offer [Bakush] financial support”, or could not contact the employed cousin who “is also willing to help [Bakush] financially. Would it be practicable to release Bakush based on his being able to receive family assistance, if the Personal Representative is unable to contact these family members?
The Personal Representative spoke about how Bakush “enjoys watching and playing many sports such as soccer and swimming”, has taken classis in health and life skills, and enjoys cooking for others. Bakush “would like to work in the restaurant industry”. He looks forward to having his own family, and to raising children of his own. He would prefer to live in an Arabic speaking country, but “is willing to relocate to a country that provides him opportunities for a successful future”. He is “willing to participate in a rehabilitation or reintegration program as well”.
Then, the Bakush’s US Government-Appointed Personal Representative of Bakush read the Personal Representative’s Opening Statement, the full text of which follows:
The following document appeared on the PRS website following the hearing, and indicates that Bakush requested to not have his own written PRB statement published to the website:
The following document appeared on the PRS website following the hearing, and indicates that Bakush requested to not have the transcript of his PRB published to the website.
I’m scheduled to fly to Guantanamo Bay, Cuba on Monday, 16 May 2016, as a non-governmental organization (NGO) observer of proceedings in the U.S. Military Commission case against detainee Hadi al Iraqi.
Hadi is a high-value detainee who is an alleged high-ranking member of al Qaeda who served as liaison between al Qaeda in Iraq and the Taliban. He is charged under the Military Commissions Act with a series of war crimes, including attacking protected property, perfidy / treachery, denying quarter, and targeting noncombatants such as medical workers and civilians. Among other things, he is alleged to have helped the Taliban blow up the monument-sized Bamiyan Valley Buddha Statues, which were a UNESCO World Heritage site.
Hadi was officially charged in the equivalent of an arraignment in a Guantanamo Bay courtroom in June 2014. I happened to be present in the Guantanamo courtroom for that proceeding.
Unlike most of the other detainees currently facing trial, Hadi is facing a maximum sentence of life imprisonment, rather than a death sentence faced by, for example, the five men charged with masterminding the 9/11 attacks on the World Trade Center and the Pentagon.
Delays
For the last 2 years, since formal charging, Hadi’s pre-trial hearings that have been plagued with disruptions related to, for example, conflict of interest issues, and his “releasing” his counsel.
Recently, Hadi’s defense counsel made a motion to continue (postpone) the 17 – 18 May hearings. The Military Commission website (mc.mil) indicates that the Military Judge has ruled on this motion to continue, but the contents of the ruling have not yet been posted because the ruling must be cleared before posting for public view. Apparently the Judge denied the motion, as all systems appear to be go for the proceedings this week.
Two Days of Hearings Scheduled for This Week
My flight to Guantanamo is set to leave from Andrews Air Force Base, just outside of Washington, DC. I’m due at Andrews at 6:00 a.m. on Monday the 16th, along with defense counsel, the prosecution, the judge and the court staff, the media, other NGOs, and others associated with the case against Hadi. We are all set to fly on the same plane.
We travel down on Monday, get situated, with court scheduled to begin Tuesday morning and run through Wednesday. Then, everyone who flew down to Guantanamo on Monday gets back on a plane to fly back to Andrews.
Unfortunately, details of the nature of the 2 days of hearings are not readily available to observers such as myself, since many of the motion papers are not released yet. At times it takes many days for unclassified motion papers to be made available for public view on the Military Commission website.
Papers that were recently filed that may perhaps be covered on Tuesday and Wednesday include a Trial Counsel Detailing Memorandum (filed 13 May 2016), a Supplemental Defense Notice to Commission IAW Order (filed 27 April 2016), and the Defense Notice of Excusal of Detailed Defense Counsel (filed 20 April 2016). All of these papers are listed on the website, but the contents of these papers have not been made available for public view.
Brigadier General Mark Martins, who is the U.S. Military Commission’s Chief Prosecutor, is typically great about briefing NGOs upon arrival at Guantanamo Bay. papers. That will be very helpful, particularly for Observers who are not familiar with intricacies of each Guantanamo Bay case.
More to come
Please stay tuned for more reports from Guantanamo Bay. Among other things, I plan to talk about the Guantanamo Bay Fair Trial Manual, produced by the Guantanamo Bay Military Commission Observation Project of the Indiana University McKinney School of Law, and share information about the 6 other NGO representatives scheduled to observe this week’s proceedings with me. I will also talk about my new book, The Guantanamo Bay Reader.
Paul Schilling reading the Guantanamo Bay Fair Trial Manual, published by Indiana’s Military Commission Observation Project. The Manual, which comes in 2 Volumes, provides insights into rights and interests of all stakeholders in the Guantanamo Bay U.S. Military Commission process.
Paul Schilling is traveling to Guantanamo Bay, Cuba, today (13 February 2016) to monitor U.S. Military Commission hearings in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon.
Schilling is representing the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law’s Program in International Human Rights Law. I am the founding faculty director of this program, and because Paul had technical issues in posting from Andrews, I am posting a few photos on his behalf.
Schilling was selected from Indiana McKinney Law School affiliates, which includes faculty, staff, current students and alumni. Our Program has sent dozens of Affiliates to Guantanamo Bay, Cuba to monitor Military Commissions live, and to Ft. Meade, Maryland, where Affiliates can monitor hearings broadcast via a secure videolink into a theater on the Ft. Meade base.
View of Andrews Air Terminal from the tarmac.
Schilling currently serves as Deputy Attorney General of Indiana, and is a veteran of Afghanistan. You can read his posts on this page: GitmoObserver Blog. Schilling is blogging in his personal capacity and not on behalf of his employer or his law school, with his opinions being his own.
Main Gate of Ft. Meade, where I am scheduled to attend hearings this coming week.
In a few days, I will travel to Ft. Meade in Maryland to observe, analyze, and report on the upcoming hearings for Khalid Shaik Mohammad and 4 other alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. The U.S. Government has alleged that Mohammed was the “principal architect of the 9/11 attacks”, as reported by the 9/11 commission report. While at Ft. Meade, I will be viewing a secure live feed that links directly to Guantanamo Bay, Cuba, where the defendants have been detained since at least 2006.
My role with the MCOP
I have been participating in the IU McKinney School of Law’s Military Commission Observation Project (MCOP) program for over a year now. I have had the opportunity to research on our Guantanamo Bay Fair Trial Manual, which observers and others can use to help them ascertain whether the rights and interests of all stakeholders have been afforded to them. The Manual examines rights and interests not only of the defendants, but also of the prosecution, victims and their families, the media, observers / monitors, and others.
I have also registered for multiple trips to Guantanamo Bay to view hearings live in the courtroom. However, all of those sets of hearings were cancelled in the days prior my departure. The repeated delays have given me a sense of the monumentally sluggish pace at which these trials move.
Who am I?
I am a 3L law student at IU McKinney, and am set to graduate in December 2015. Until recently I was a human rights intern with the Universal Rights Group, which is a Human Rights think tank in Geneva, Switzerland. My ongoing interest in the Guantanamo Bay is driven in large part by my passion for human rights work, combined with my ongoing interest in criminal law.
Luke Purdy in front of the UN Building (Palais des Nations) in Geneva, Switzerland (Fall 2015).
Next week’s hearings
I am particularly excited about the fact that judge is scheduled to engage in a colloquy with the defendants on Monday morning the 7th, which will give me a chance to view and report on the spoken words of the accused.
I am also interested to hear evidence/testimony on the defendant’s request to prevent female guards from having direct contact with the defendant for religious reasons.
The hearings are scheduled to begin on Monday, December 7 and run until Friday the 11th. I will continue to blog about my observations at the base. I am expected to be joined at Ft. Meade by IU Affiliates Bob Masbaum (a J.D. graduate) and Professor George Edwards (founder of the Military Commission Observation Project). IU McKinney Professor Catherine Lemmer, who is an international librarian, is scheduled to travel to Guantanamo Bay this weekend to attend these 9/11 hearings live.
By: Luke Purdy, 3L, Indiana University Robert H. McKinney School of Law
Right to left — Mr. Tex Boonjue, Ms. Hee Jong Choi, and me. We’re standing in front of the Post Theater at Ft. Meade.
I was at Ft. Meade, Maryland today to monitor hearings in the Guantanamo Bay Military Commission case against an alleged high-ranking al Qaeda member, Hadi al Iraqi. Hadi faces war crimes charges in the court, located in a remote area of Cuba. The U.S. military broadcasts the hearings live to a Ft. Meade base movie theater (the Post Theater) via a secure video-link.
Indiana students at Ft. Meade
I was joined by two Indiana University McKinney School of Law students, both of whom have strong interests in human rights and international criminal law. They are both representatives of Indiana’s Military Commission Observation Project (MCOP).
Ms. Hee Jong Choi is a rising third year student who is an intern in Indiana’s Program in International Human Rights Law. She has been working on North Korean human rights issues, while she was based in South Korea for the first half of the summer, and while based in Washington, DC at an NGO (HRNK – The Committee for Human Rights in North Korea) for the second half of the summer.
Fort Meade’s Post Theater is screening Guantanamo Bay war crimes hearings during the day, and San Andreas in the evenings.
Defendant’s opportunity to speak today – Conflict of interest
Today’s hearings were notable, in that the defendant had an opportunity to speak more than defendants typically speak at military commission hearings. Typically, at the beginning of a hearing week, the military judge will ask the defendant whether the defendant understands his rights. The judge lists our numerous rights, and the defendant is given a chance to answer as to his understanding of those rights. Generally, after that, the lawyers do the rest of the talking, along with the judge.
Today, an issue was presented regarding the possibility that the lawyer who represented Hadi for a year may have a conflict of interest that could have a negative impact on Hadi. The judge asked Hadi series of questions, in open court on the record, and Hadi replied. Hadi and the judge entered into a discussion about these issues.
Hearings suspended, again
Ultimately, due to questions concerning the possible conflict, the judge suspended the hearings, indefinitely.
The hearings for July 2015 had been scheduled for two weeks, beginning Monday, 20 July. The night before, this conflict issue was raised in special conference, and the judge postponed the hearings until today, Wednesday the 22nd. Today, we had about 3 hours of court time, including the time that the defendant and the judge conversed, and including pauses and a long break.
The two weeks of hearings could be over as of lunch time today.
In the meantime, many dozens of people associated with the hearings boarded a plane this past Sunday at Andrews Air Force Base, bound for 2 weeks at Guantanamo Bay. The plane may be forced to return to Andrews more than a week early, with only 3 hours of court.
At the Ft. Meade Commissary today
Who else was at Ft. Meade today?
Also in the Post Theater observing today’s hearings were 7 law student interns from the Office of the Chief Prosecutor of the Military Commissions, along with one of their supervisors, Major Chris Hartley (Army JAG, International Law Advisor). Two law student interns from the Human Rights First National Security section were present, as was another gentleman who did not identify himself. A DoD contractor was there to help ensure that no one brought cell phones into the Theater. And a technician and another administrator popped in from time to time to check up on things.
It was an early lunch day at Ft. Meade.
Greg Loyd, our Indiana McKinney representative who is in Guantanamo Bay this week, reported that there is plenty to keep him and observers busy down there, even with the hearings being suspended. He, and the rest of us, are spending time working on the Guantanamo Bay Fair Trial Manual.
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.
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 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 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.
I’m on the left, with Professor George Edwards who founded the Military Commission Observation Project at Indiana. This photo was taken in Washington, DC the day before my departure for Guantanamo.
I’m set this morning to go to Guantanamo Bay to monitor Military Commission hearings. On my plane, which leaves from Andrews Air Force Base, will be the judge, prosecution and defense lawyers, victims’ families, press, court reporters and interpreters, and other hearing observers. For 10 days we will be involved in pre-trial hearing in a case against alleged war criminal al-Hadi al-Iraqi, an alleged high-ranking al Qaeda member.
I graduated from Indiana’s law school over a decade ago, and I have worked as both a defense attorney and a Deputy Prosecuting Attorney. I have worked with many categories of individuals emotionally vested in cases – criminal defendants scared for their future due to charges against them, detectives who sink their nights and days investigating a case, family members who grieve for a loved one, and fellow attorneys who spend sleepless nights worrying upcoming hearings. I hope this balanced lense will aid me in better understanding each Guantanamo Bay stakeholder’s point of view and lead to reporting that readers find helpful.
My Role
As an Observer, I will watch, listen, and ask questions about the rights of stakeholders in the al-Hadi al-Iraqi case. Obviously, one such stakeholder is the defendant who has significant rights and interests in the matter. Yet, so too do the families of victims. The press. NGO’s. Yes, even the prosecution. When evaluating the military commissions, it is important to consider not just the rights of any one stakeholder, regardless of who or what this stakeholder is, but rather, the analysis must be global in nature. Given that much has been written about the defendant’s rights, I will try to pay close attention to another stakeholder — the rights of the Guantanamo Bay prosecution — in an effort to contribute to a full discussion.
A helpful starting point is to ensure an understanding of the charges filed against a defendant.
Abd al-Hadi al-Iraqi
What are “Charges”?
Charges are the formal method that the government uses to accuse an individual (the defendant) with having committed a crime. The charges are not evidence and the filing of a charge does not mean that the defendant is guilty. Rather, it is the Government’s responsibility to prove at trial that the defendant is guilty. The Government filed fives charges against Hadi al-Iraqi.
Charges Against Hadi al Iraqi
Here is a brief explanation of the charges filed against the defendant.
Denying Quarter
In short, the Government alleges that Hadi al Iraqi ordered his combat forces in Afghanistan and Pakistan that when they engaged in combat, they were to take no prisoners, even if the opposing forces attempted to surrender.
Attacking Protected Property
Here, the Government alleges that the defendant attacked a military medical helicopter as it attempted to evacuate a U.S. military member from a battlefield and that the defendant knew the helicopter was a medical helicopter.
Using Treachery or Perfidy
The Government asserts that the defendant detonated explosives in a vehicles that killed and injured German, Canadian, British, and Estonian military personnel.
Attempted Use of Treachery or Perfidy
Hadi al-Iraqi is charged in this count with attempting to detonate explosives in a vehicle to kill or injure U.S. military members.
Conspiracy
The Government contends that the defendant entered into an agreement with Usama bin Laden and others to commit terrorism, denying quarter, and murder (among other acts), and that he took at least one step to accomplish the purpose of the agreement.
Conclusion
I’m looking forward to monitoring the upcoming hearings. In applying my experiences, I hope to share a thoughtful analysis regarding my observations at Guantanamo Bay that contributes to the exploration of the rights of all stakeholders.
I am up early this Monday morning for my first visit this year back to Ft. Meade, Maryland to monitor Guantanamo Bay, Cuba hearings in the U.S. Military Commissions case against al Nashiri. He is the alleged mastermind of the U.S.S. Cole suicide bombing in 2000 that killed 17 U.S. sailors.
What, Guantanamo Bay proceedings in Maryland?
Yes. The Pentagon runs a secure videolink direct from the Guantanamo Bay courtroom to select viewing sites in the U.S. where press, NGO Observers, victims and their families, and others may view the proceedings. The only site in the U.S. at which NGO Observers and members of the public may see what’s happening in the courtroom is at Ft. Meade, Maryland, about 35 miles outside of Washington, DC.
It’s kind of like watching a Court TV show, except that the viewing venue at Ft. Meade is an actual live theater, where they screen first run movies on a huge commercial theater-sized screen, and host live plays, lectures and other activities on a stage. Its concession stand sells buttered popcorn, Milk Duds and Skittles, and fountain drinks. This week’s feature film is Selma, screened in the evenings after the Guantanamo courtroom goes dark.
Sketch of al Nashiri from a previous court session. Today in court he wore a similar casual white short sleeve shirt. His hair appeared to be a little longer than in this sketch, but it appeared equally as kempt. (Sketch by Janet Hamlin)
Al Nashiri’s February 2015 hearings
The al Nashiri case is in the pre-trial hearing stage. Every month or two they schedule two weeks of court time in which defense and prosecution lawyers argue about logistical, substantive, or technical issues to be resolved before the actual trial begins. For the February 2015 hearings, the lawyers are arguing whether the prosecution must provide the defendant certain information, whether al Nashiri will face the death penalty, and the relevance of the U.S. Senate’s 2014 Torture Report.
But before they reach those issues, they are arguing over whether certain Pentagon officials are exercising “unlawful influence” over the al Nashiri judge, who like other Guantanamo Bay judges was ordered permanently to relocate to Guantanamo Bay and surrender all non-Guantanamo judicial responsibilities, as these changes purportedly would help speed up the trials. U.S. law clearly provides that judges are to be in control over their trials, including the speed at which their trial proceed, and outside U.S. government officials are not meant to intervene.
I won’t know what will happen in today’s hearings until 1:00 p.m., since the morning session, which was scheduled to begin at 9:00, is closed to NGO Observers. I have over four hours of out-of-court time to catch up on reading al Nashiri court documents, blog writing, and working on the Guantanamo Bay Fair Trial Manual.
Driving to Ft. Meade
Getting to Ft. Meade is not easy.
I woke up this morning before 6:00, and took a taxi from my downtown DC hotel to Washington National Airport, where I rented a car to drive to Ft. Meade. The taxi ride to the airport was historically scenic, passing the Watergate, the Washington Monument, and Arlington Cemetery.
Driving from the airport to Ft. Meade was slow, not because of rush hour, but because much of the 35 miles to the base is on narrow, two lane roads with many stop lights. I will try another route back to DC this afternoon. Perhaps it was a GPS problem? It might be an advantage driving into DC when most of the traffic is driving out at the end of the day. All said, it was a pretty uneventful trip, which took about an hour from airport to the Ft. Meade Visitor’s Entrance.
I remembered from last time I was here where the Ft. Meade Visitor’s Entrance is, off of Reese Road, and pulled up to the base security checkpoint. But I’d forgotten about the separate vehicle inspection line, just to the right before base security. So I had to make a quick U-turn, adding 30 seconds to my journey. The vehicle inspector asked me a few questions about my Indiana drivers license, my rental car contract, and whether I was a member of the press. He was easily convinced that I was a credentialed NGO Observer, and very generously gave me a Ft. Meade color map, on which he traced lines to the Post Theater, where I am now.
I arrived here just before 8:30 a.m., took a couple of selfies in front of the Post Theater sign, and then bumped into Bev, who is a Department of Defense contractor who I believe supervises this viewing site. She announced to me that court was commencing at 9:00 a.m., but that the morning session would be closed to NGO Observers. They close the proceedings when they are discussing classified information that NGO Observers, victims and their families, press, and others are not permitted to hear. So, none of us can be in the courtroom or on a video-link, whether we are in Guantanamo Bay or Ft. Meade.
I wondered why those of us at Ft. Meade were not warned in advance that the unclassified, open proceedings would not commence until early afternoon. At the very least, none of us would have had to wake at the crack of dawn, only to hurry up and wait all day. (As it turns out, two people in the Observation room received notification last night at 10:00 that the open session would start at 1:00 p.m., and they arrived at the Post Theater at 12:45, well-rested after a good night’s sleep and a 50 mile drive.)
So, what do I do for the next four hours from 9:00 – 1:00 waiting for the open hearing? I could drive back to Washington, and come back this afternoon. But that would be a wasted time.
So, of course, I immediately thought that this would be a great time to catch up on Gitmo Observer blog writing, to review court documents in the al Nashiri case, and to brush up on the Guantanamo Bay Fair Trial Manual.
Drug sniffing dog Axa and her handler at Post Theater today, after finding all the drugs planted by the MPs.
Canine Patrol
A little while after I entered the Post Theater, a group of Military Police (MP) Canine Patrol staff came in, asking whether the Guantanamo Bay hearings were on. I told them that the hearings were closed until 1:00 p.m., and that there would be no live broadcast until then. In fact the screen was showing the morning news, with stories about al Shabaab and threats to U.S. shopping malls and the weather.
The MPs said that they wanted to do some training with some of their dogs.
The next hour or so was extremely interesting, watching 5 different dogs successfully sniff out planted explosives and illegal drugs that the MPs planted in different parts of the theater.
The first dog, a black lab, was an explosives expert. She found three different satchels of explosive powder and other incendiary material, hidden inside a trash can, underneath a movie theater seat, and high above the arch of a doorway. All in record time. After each find the shiny, fine-coated lab received an award, a tug and tussle with a “kong”, which is a plastic toy attached to a colorful twisted heavy rope.
The next two explosive expert dogs performed equally as well, quickly finding all the planted explosives and receiving well-deserved treats.
Then came Axa, the first of two drug-sniffing dogs. She was a small dog, with a rugged black and grey fluffy coat. The
Fram – A drug sniffing dog and his handler this morning, after the 9-year old canine gracefully located all of the drugs planted by the MPs.
MPs had hidden the drugs on the opposite side of the theatre from the explosives. Axa’s handler gently waved her open palm towards the trash can next to the door leading from the lobby into the theater, and Axa did not react. The handler repeated the hand gesture, called a presentation (the hand wave gesture), this time towards the door frame. Axa stood on her hind legs and leaned against the door frame, circled around beneath the frame, stood up again, and excitedly sat on her hind legs. Axa found the 5 grams of marijuana hidden in the frame above the door. She was rewarded with a yelp by the handler who tossed Axa a kong for finding the pot.
Axa then found cocaine in a trash can in front of the theater, and ecstasy underneath a seat in about row 8. Axa is only 2 years of age and has been working as a canine sniff dog only since October 2014. Well done.
Finally, Fram, the senior sniffer, was brought into the theater.
Fram was 9 years of age, lived his first 7 years in Germany, and arrived at Ft. Meade only 2 years ago. He was seasoned, he knew the drill, and he was very good at what he does.
Today Fram earned his kongs, and hugs from his handler who said “I’m going to adopt Fram when he retires”. Several other handlers chimed in “No you’re not! I’m going to adopt him”! So, we’ll see who ends of with a handsome, smart and talented dog who even at the ripe old age of nine did not look like he was anywhere near retirement.
Dog Handlers are gone — What Next?
The dog handlers have left, and I’m back to full concentration on my work (despite interruptions by a person stopping in to ask for directions to a base office, a guy coming in to turn on the bathrooms’ water which had been turned off over the weekend to prevent frozen pipes during the snow storm, and a guy changing lightbulbs above the concession stand.
I was scheduled to travel to Ft. Meade, Maryland, the week of Monday, 14 August 2017 to monitor pre-trial hearings in the Guantanamo Bay U.S. Military Commission case against an alleged high-level al Qaeda member. The hearings were to be broadcast via-closed circuit television (CCTV) from Cuba to the Ft. Meade army base, where I have monitored hearings in all the active Guantanamo Bay cases. The U.S. government has stated that Guantanamo Bay (a/k/a Gitmo) proceedings should be open and transparent, and that CCTV broadcasts to Ft. Meade promote openness and transparency.
I was informed that the military judge in charge of the case has reversed an earlier ruling, and has now prohibited this week’s proceedings from being broadcast to Ft. Meade. His new ruling apparently permits 5 monitors who traveled to Guantanamo this weekend to observe / monitor the hearings while sitting in the spectator section of the Guantanamo courtroom. However, monitors such as myself who planned to observe from Ft. Meade are effectively banned from observing this week’s proceedings.
What Hearings will I monitor?
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.
