Gitmo Observer

Reporting from Guantanamo Bay: Commission Hearing in Limbo

Reporting from Guantanamo Bay

I am a recent graduate of the Indiana University McKinney School of Law (IU McKinney) and a representative of the IU McKinney Military Commission Observation Project (MCOP). I traveled to Guantanamo Bay, Cuba, this weekend to monitor hearings in a U.S. military commission against an alleged high-level member of al-Qaeda charged with war crimes.My mission at Guantanamo is to attend, monitor, be seen, analyze, critique, and report on the proceedings of the defendant, Mr. Nashwan al-Tamir / Abd Hadi al-Iraqi (hereinafter “Nashwan / Hadi”). Read more about the MCOP and Nashwan / Hadi through my earlier blog posts here.

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

The Only Thing Constant in Guantanamo

Three fellow non-governmental organization (NGO) representatives joined me this week in Guantanamo. On Monday morning (24 September 2018), my fellow NGO representatives and I walked from our residence tents located in Camp Justice to the courthouse complex, about one hundred yards away. I observed heavy equipment mobilizing around the courthouse complex as we walked. While I presume the U.S. employs this equipment according to a series of multi-million dollar expansions proposed for Guantanamo under the Trump administration in 2018, I am still determining.

After passing through a series of security checks to enter the courtroom site, we joined media representatives and military personnel in the Guantanamo courtroom viewing gallery to watch the proceedings. I entered the gallery around 8:30 a.m. and observed a nearly empty courtroom behind a double-paned glass wall separating the gallery from the well of the courtroom. Only a few uniformed military personnel sat along the right-hand courtroom wall while another conducted mic checks. I observed a 40-second delay between the live activities within the courtroom, the sound emitting from the gallery speakers, and the images displayed on five closed-circuit televisions (CCTVs) mounted within the gallery. I expected this delay through a prior review of the Know Before You Go To Guantanamo Bay guide. One of my escorts has since informed me that the delay seeks to ensure classified information is not released into the gallery and to the broader public.

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

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

My fellow NGO representatives and I remained near the court site as directed while waiting for further updates on the delayed proceedings. By 12:00 p.m. (noon), I became restless as we continued to wait for updates.

Clamoring for news, I fruitlessly searched through various web resources, including the Office of Military Commissions (OMC) website and the Miami Herald, which often feature reports and articles regarding commission proceedings published by Ms. Carol Rosenberg. Ms. Rosenberg is an award-winning and widely printed reporter of Guantanamo happenings and was among the media representatives present with me in the courtroom gallery when the internal security officer announced the hearing delay.

At 2:30 p.m., our escorts received notice that the hearings would continue and that we should immediately return to the courtroom gallery. However, upon our return, the court delayed its hearing again, now until 4:00 p.m.

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

Commission Hearing Resumes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Pleased stay tuned for future updates.

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Me working in the NGO Center located near Camp Justice.

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

Voter Protection Legal Fellow
Indiana Democratic Party

Jacob.Irven@gmail.com

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

Reporting from Andrews Air Force Base

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

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

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

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

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

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

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

Nashwan al Tamir / Abd Hadi al Iraqi

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

Reduced Hearing Schedule

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

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

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

Conclusion

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

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

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

Voter Protection Legal Fellow
Indiana Democratic Party

Jacob.Irven@gmail.com

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

Nominated for Travel

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

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

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

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

Previous Nomination

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

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

Background and Interest in Observing

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

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

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

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

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

Preparing to Observe

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

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

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

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

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

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

As always, please stay tuned for future posts.

Jacob Irven, J.D ‘18.

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

Program in International Human Rights Law

Indiana University Robert H. McKinney School of Law

My NGO Observer Trip to Guantanamo Bay Naval Base is Cancelled

Tamir / Hadi Hearings Cancelled

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

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

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

The Importance of NGO Observers

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

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

Guantanamo Bay Fair Trial Manual – Volume I (pink) and Guantanamo Bay Fair Trial Manual – Volume II: Appendices (blue)

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

Jacob Irven (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

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

Nominated for Travel

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

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

Background and Interest in Observing

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

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

Preparing to Observe

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

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

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

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

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

Please stay tuned for future posts.

Jacob Irven (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Reflections on my Previous Guantanamo Observation Trip

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

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

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

My Previous Guantanamo Observation

Lighthouse at Guantanamo

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

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

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

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

The Judge is awaiting decisions from two federal district courts.

Further Thoughts

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

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

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

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

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

Reasons for Wanting to Return

Flying over Cuba

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

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

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

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

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

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

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

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

Jessica Ayer (J.D. Candidate, ’19)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Second Day of the al Darbi Deposition in Hadi al Iraqi Guantanamo Bay Military Commission Case

NGO observers working in the NGO Resource Center after a day’s court session.

I have been in Guantanamo Bay, Cuba since Sunday, August 13th, 2017 serving as an NGO observer with the Indiana University McKinney School of Law’s Program in International Human Rights Law. The program is approved by the Pentagon to send observers to view proceedings that are a part of the military commission system. Other schools and organizations that have an interest in what goes on in GTMO also send observers. I am here with five other observers from four organizations and one other law school.

Morning Session Deposition – Day 2, Wednesday August 16, 2017

The prosecution called Guantanamo prisoner Ahmed al-Darbi to the witness stand to testify in the military commission case against Hadi al Iraqi, an alleged al Qaeda commander. al-Darbi pleaded guilty in 2014 to charges related to the 2002 attack on a French oil tanker, and as a part of that plea deal agreed to testify when called upon by the prosecution.

An issue of the direct examination on both days was that the prosecutor asked numerous complex and compound questions that appeared to be lost in translation and objectionable.

Unlike the first day of the deposition when Hadi al Iraqi was present, on the second day, he voluntarily waived his appearance and did not attend. al-Darbi looked very much like a business professional dressed in a dark gray suit, light gray tie, white shirt, and nice watch.

The second day of the deposition began with the prosecutor asking al-Darbi about Hadi’s alleged activities at a guesthouse/headquarters building in Kabul, Afghanistan. al-Darbi described about how Hadi would go to the communications room to check on the latest developments from the front and later go to the front himself to check on his fighters. The prosecution elicited from al-Darbi information in an apparent attempt to paint a picture of Hadi as an active al Qaeda commander, the extent to which he commanded the defense will most likely dispute. al-Darbi testified he last saw his former commander Hadi al Iraqi in the year 2000 at the guest house in Kabul.

Struggles in Recounting Torture

Camp X-Ray, the temporary detention facility at Guantanamo Bay, where the first 20 detainees were brought in January 2002. The camp closed in April 2002 and a court has ordered the preservation the camp to be potentially used as evidence in any future litigation. Though al Darbi arrived to Guantanamo after Camp X-Ray was closed, during his interrogation, he was allegedly threatened with being sent there where bad things would happen to him.

The afternoon session began with al-Darbi’s account of being taken in to U.S. custody, first at Bagram Airfield, Afghanistan, and later at Guantanamo Bay, Cuba. During this portion of the testimony, al-Darbi’s body language changed drastically. Instead of leaning towards the microphone when giving sometimes lengthy answers at a normal volume, when speaking of his captivity he leaned back in his chair and gave short answers at a low volume. The only time he gave a long answer during this portion of his testimony was when he stated that remembering the details about the things that happened to him after he was captured was more difficult than the experiences themselves.

al-Darbi appeared visibly to have had a difficult time recounting his treatment at Guantanamo Bay. He testified to having had to endure “stress positions,” sleep deprivation, physical assault (to include pushing, hitting, and having chairs thrown at him), humiliating tasks, and being forced to wear bunny ears and a diaper on his head.

The most difficult line of questioning came when al-Darbi described an incident while at Bagram Airfield in which his interrogator, Army Private First Class Damien Corsetti exposed his private parts and put them in al Darbi’s face. Though by all accounts he lived up to his nicknames as “The Monster” and the “King of Torture,” notorious interrogator Corsetti was acquitted of charges relating to his abuse of detainees.

The strategy of the prosecution in the latter portion of the second day seemed to be to bring out torture on direct examination because there is little doubt the defense will question his ability to recall the over 20 people he previously identified due to the time that has passed as well as the physical toll of the torture. The prosecution also attempted to blunt the impact of it later by asking questions reiterating the free and voluntary nature of his plea deal.

Meeting with Chief Defense Counsel, Brigadier General John Baker

Brigadier General John Baker assumed his duties as Chief Defense Counsel in July 2015.

The NGOs had the opportunity on Thursday, August 17, 2017 to meet with the Chief Defense Counsel, Marine Corps Brigadier General John Baker. Earlier in the week we had met with the Chief Prosecutor, Army Brigadier General Mark S. Martins. BG Martins released a statement on August 19th about the hearings that occurred the week of August 14th. That statement can be read here.

BG Martins appears to be very much hands on with the prosecution of each of the military commission cases his office is responsible for prosecuting. He plays a direct role in the direction the cases take both from a staffing standpoint as well as a legal strategy. In addition, because of his background as Rhodes scholar, instructor at the Center for Law and Military Operations, and being widely published in professional journals, his meetings are significantly more polished, though not necessarily better. He speaks much more fluidly and longer winded in a manner that shows he speaks about the military commission system and law in general in the political arena.

BG Baker on the other hand is, as he characterized his role, more of a manager. He views his job as getting the tools each of his defense teams state that they need to do their job. He does not personally represent any of the clients, though he does seem to meet with them on a regular basis. One of the challenges he spoke at length about was the personnel issues that both he and his adversary, BG Martins have to deal with unique to the military. Most military attorneys, or JAG officers, are assigned for 2-3 years. In order for military personnel to advance their careers they cannot stay in place for long periods of time, and because these military commission cases in some instances last for a decade or more, staff continuity in the case is a constant challenge. Ultimately, the client suffers when the staff members are constantly turning over and the careers of the staff members suffer if they stay in their positions for too long.

BG Baker responded to our questions much more candidly and off the cuff. He, unlike BG Martins, gave us explicit permission to attribute things to him, as well as quote him. BG Baker spoke frankly about how he views the military commission system as a “failed experiment” and how he sees no way in which these cases will survive appeal. Though he says he is a firm believer in the general idea of military commissions, he sees “zero benefit” to trying the cases in this iteration of the military commission system.

On Friday of last week, the judge in the Hadi al Iraqi case, Marine Corps Colonel P.S. Rubin issued an order suspending the CCTV feed of the al Darbi deposition to Fort Meade. I asked BG Baker directly if he had received an explanation about why feed was suspended. He offered a theory that the deposition was not a court proceeding and therefore not under the authorization of a protective order issued by the judge, to send the feed to Fort Meade. The issue of whether or not to allow a deposition to be transmitted to Fort Meade has come up before. In the al-Nashiri case, the judge ruled the deposition of al-Darbi was to be completely closed. This meant no NGO observers could be present and the CCTV feed was suspended. In the Hadi case, the judge ruled NGO observers could be present, but still no CCTV feed.

BG Baker recognized the unprecedented nature and importance of the presence of NGOs at Guantanamo Bay hearings. He said to tell the world of about what happened here. That’s a responsibility I felt like each NGO observer has taken seriously in this unique and fascinating week.

Defense Team BBQ

Sunset over Camp Justice at Guantanamo Bay, Cuba, August 13, 2017

Two members Hadi’s defense team invited all of the NGOs to the temporary house where they were staying for a BBQ. They cooked great burgers and hotdogs, and had a wide variety of beverages. Each NGO observer reported having a number of fascinating conversations with individual members of the defense team, to include the lawyers, intelligence personnel, investigators, and paralegals.

In September 2015, I traveled to Guantanamo Bay to observe a hearing for Hadi’s case in which he fired his military defense counsel. Fast forward to August 2017 and Hadi finally seems to have a solid defense team in place. According to members of this team, he chose Navy Commander Aimee Cooper to lead his defense, though she is not the highest ranking member of the team. The members of the defense team I spoke to report having a really good relationship with their client. This bodes well for his defense and seems to solidify the chance that he will have the rights afforded to him (as outlined in the Guantanamo Bay Fair Trial Manual) protected to the greatest extent possible.

Concluding Remarks

I want to thank each of my fellow NGO observers for an incredible week. Each shared their unique insights and made the experience one I will never forget.

I will continue to follow this case as it moves slowly forward in the hopes that someday justice will be served in a way that does not undermine the values America supposedly stands for.

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Deposition of Ahmad al-Darbi in the Guantanamo Military Commission case against Hadi al Iraqi

I have been in Guantanamo Bay Cuba since Sunday as an NGO observer as a part of Indiana University McKinney School of Law’s Program on International Human Rights Law to view the hearing session for the Military Commission case against Abd al Hadi al Iraqi (or Nashwan al Tamir).

NGO observers in front of the Camp Justice sign before the first day of the Ahmad al-Darbi deposition.

The court session yesterday (Monday) involved several defense motions. Two were argued in the public setting, in which the NGOs and victim’s family members were allowed to be present. A third motion was not heard at all, and the fourth was heard (along with classified parts of the first) in closed session, in which all members of the public (NGOs, victims, and media) were not allowed to be present for.

Morning Deposition Session – Tuesday, 15 August 2017

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Ahmad al-Darbi in an undated Red Cross photo obtained by the Miami Herald.

The prosecution called Ahmed al-Darbi, a Saudi born admitted jihadist to the stand to be deposed. al-Darbi pleaded guilty and promised to testify against Hadi, but because al-Darbi hopes to be repatriated to his homeland of Saudi Arabia soon, and will not be available to testify against Hadi in person at Hadi’s trial, his deposition testimony today will be preserved to be possibly used against Hadi at his trial. Hadi al Iraqi was present for the first day of testimony. al-Darbi, wearing a gray suit, white dress shirt, and tie, sat calmly speaking with a soft even tone. Unlike in the picture to the right, he was clean-shaven, wore nicer glasses, and had short slightly gray hair.

Hadi al-Iraqi was seated at the left end of the first defense table in the courtroom wearing a white robe, white turban, and black vest. From my vantage point, I did not see if the two men looked at each other before or at any point during the testimony.

Six of us NGO observers were present in the gallery, along with several military servicemembers, family members of some of the victims, news media, and numerous military police. Veteran Guantanamo Bay military commission reporter for the Miami Herald, Carol Rosenberg published a piece a few hours after the conclusion of Tuesday’s session. That article can be viewed here.

The deposition was recorded for possible use by the prosecution at trial of Hadi al-Iraqi. al-Darbi, testifying in Arabic, but seemingly understanding some English through his interactions with the deposition officer, had the assistance of four interpreters that rotated throughout the testimony.

After several hours of foundation and background, al-Darbi identified Hadi as his former commander and stated that he recognized Had al Iraqi from a guesthouse in Afghanistan.

Presiding judge, P.S. Rubin, served as the deposition officer responsible for ruling on any raised objections. Throughout the five-hour deposition session, the defense raised many standard objections to the form of the questions the prosecutor asked and the answer elicited from al-Darbi. The defense objected to the prosecution asking leading questions, speculative answers from al-Darbi, being unclear about the time frame in which he was speaking about, and the non-relevance of large portions of his testimony.

Osama bin Laden, notorious leader of al-Qaeda.

The narrative the prosecution tried to convey, though disjointed and hard to follow at times throughout the entire morning session, painted a picture of al-Darbi as a committed (at least initially) jihadist who had numerous interactions with high-level al-Qaeda and Taliban leaders, to include Osama bin Laden.

al-Darbi testified that as a young man from a troubled non-devout Muslim family, as a teenager he found reassurance, peace, and comfort at mosque. From there he became very much a believer in jihad, the highest rank of worship. He stated that to him jihad meant fighting infidels in self-defense, not giving into desires of soul, defense of home and property, and the defending of honor.

The Bosnian War (1992-1995) claimed the lives of over 62,000 Bosniaks, or Bosnian Muslims.

He testified that following his service in the Saudi army during 1992, with no other job in his hometown, he slowly began to find his calling as a jihadist. By 1994, he would find his first jihad fighting as part of a Bosnian Army unit against Serbian aggression towards his fellow Muslims. As a young jihadist, al-Darbi dreamt about becoming a martyr, and became depressed when he left Bosnia alive.

He stated that following his return from Bosnia, other jihadists recruited al-Darbi to go to
Afghanistan for training. By 1996, he received recommendations to finish his training at al-Qaeda camps, despite previously being unaware of al-Qaeda’s existence, but knew of Osama Bin Laden due to the prominent nature of his family. During this time he first met with Bin Laden. After several more months of training he was invited by al-Qaeda to fight with the Taliban.

Afternoon Session

Up until this point, the deposition focused on al-Darbi’s background and activities, as well as the identification of other fighters he interacted with, but made no mention, to my recollection, of Hadi al Iraqi. Much of the testimony in the afternoon finally began to focus on the nature of his interactions with Hadi.

al-Darbi testified that after he completed his training, he went to Kabul, Afghanistan. It is here at a guesthouse that he first saw Hadi al Iraqi. Despite all the training he had in advanced tactics and weaponry and his interactions with high level members of al-Qaeda, al-Darbi still appeared to be a fairly low level fighter, when he testified that his commander, Hadi al Iraqi, assigned him to be on a three-man tank crew. Al-Darbi saw Hadi on a daily basis during this period. In addition to the commander-subordinate relationship, they ate meals together while at the front lines.

One of the major purposes for the prosecution having al-Darbi even testify was to be able to positively identify the accused, Hadi al Iraqi. With all the background covered, the prosecution finally asked al-Darbi if he recognized the accused sitting at the defense table, to which he answered yes, though he looked older with a grey beard. When asked who he recognized the accused to be, he responded it was apparent to him that the accused is Hadi al Iraqi.

One of the strategies for the defense is to essentially say their client is not Hadi al Iraqi, but instead is Nashwan al-Tamir. During the deposition of al-Darbi, the prosecution specifically asked him if he ever heard Hadi al Iraqi go by any other name, or if he was aware of anybody else who had used that name. al-Darbi answered no to each of those questions and sated that he had never heard Hadi al Iraqi called Nashwan al Tamir.

This line of questioning and the questions dealing with al-Darbi’s interactions with Hadi made up a relatively small portion of the approximately four hours of today’s testimony. The prosecution introduced over 20 exhibits, most of which were photos of people he identified, other than Hadi al Iraqi. The NGOs, myself included, kept waiting for the prosecution to get to the point where al-Darbi would identify Hadi.

Unlike during a normal type of deposition when the deponent (the witness being deposed) is cross-examined immediately after direct examination, the defense will not have the opportunity to cross-examine al-Darbi at least until October. I would be interested to hear how the defense characterizes the name issue, as well as the relatively small number of interactions al-Darbi allegedly had with Hadi.

A transcript of the deposition is not available on the website of the Office of Military Commissions, and by all accounts it does not seem likely that it will be posted.

That concludes the summary of the first day of deposition of al-Darbi. The deposition will likely continue all day tomorrow. The next post will contain a summary of the day’s testimony as well as my overall thoughts on the two days.

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

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

NGO observers at Andrews preparing before the flight to Guantanamo Bay.

I traveled to Guantanamo Bay, Cuba to serve as an NGO Observer to view hearings for the military commission case against Abd al Hadi al Iraqi, or Nashwar al Tamir as the defense calls him. I am representing the IU McKinney School of Law’s Program on International Human Rights Law, and am joined by five other observers representing four organizations and one other law school.

The flight down here was on a chartered Miami Airlines plane lasting just over 3 hours. Once we debarked from the plane we got in a van and drove onto a ferry that crosses to the windward side of the bay.

First Day of Court

Welcome sign at the Passenger Terminal on the leeward side of Guantanamo Bay

Last time I came down here in September 2015, Hadi only had military counsel, unlike the other military commission defendants who had both private and military attorneys. At the hearing I viewed, he fired his chief defense attorney to make way for a private attorney. Today, I immediately noted that in addition to several different military counsel, he had a private attorney as well.

In addition to the 6 NGO observers in the courtroom gallery, a number of family members from two servicemen killed in Afghanistan in 2003 were also present.

Just before the start of the session, everyone in the gallery was made known about the approximate forty-second delay from the action in the actual courtroom to the audio and visual feed on the four monitors visible from the gallery. This delay is supposed to prevent those in the gallery from hearing potentially classified information. Practically speaking, the delay makes it almost useless to watch the actual happenings in the courtroom. This is especially prevalent when the hearing comes to a conclusion in the actual courtroom but is still going on the monitors that we can hear and see in the gallery. At the conclusion, everyone stands in the courtroom and we in the gallery are given the “all rise,” but the hearing hasn’t finished yet on the monitors. Despite this, watching and listening exclusively on the monitors causes little issue.

Morning Court Session

Four items were on the docket for the week, in addition to the deposition of al Darbi, a defendant in another military commission who agreed to testify against Hadi and al Nashari.

The session began with the judge giving a brief rundown of the meting (called an 802 conference) that occurred on Sunday evening between the judge, prosecution (trial counsel), and defense. The private attorney then spoke of several issues relating to the defense’s initial objection of the deposition, the camera angles for the deposition to be conducted this week, the defense team not receiving transcripts from al-Darbi’s deposition from a previous case, and the prosecution’s Friday afternoon delivery of thirty-five exhibits the defense claims to have had no knowledge of. Another issue the private counsel addressed was an issue of attorney-client confidentiality between al-Darbi and his counsel.

The page that shows up when one attempts to access a file not currently available for viewing by the public from the Office of Military Commission’s official website.

After those initial concerns and responses by the prosecution, the judge heard arguments on the first motion, Appellate Exhibit (AE) 091. This motion, like many of the most recent filings, is not available to be viewed by the public on the Office of Military Commission’s official website. Therefore, we could only go off what was said about it during the session.

In this motion, the defense requested the court compel the prosecution to allow their client to use a laptop to be able to view the 31,000-33,000 pages of documentary evidence.

The defense argued their client’s ability to access these documents in an electronic format would allow him to have meaningful access to the courts and facilitate effective assistance of counsel. The defense also argued that because of the massive amounts of documents, he has limited ability to store documents in his cell.

One member of the prosecution, Navy Lieutenant Commander David Lincoln, argued that Hadi should not be given a laptop due to security concerns, that he has six defense counsel that can represent him effectively in court without a laptop, and that he does not have the constitutional right to a laptop.

The second motion, AE 70CCC was only partially argued, limited by the potential for classified materials. This motion seeks to compel discovery of unredacted statements of Ahmed al-Darbi, a detainee who has traded his release from Guantanamo in exchange for testimony in several cases.

AE 085 is a motion to dismiss the charges, in which the defense argues that Congress lacks the authority under the Constitution to limit the jurisdiction of the law of war military commissions to non-citizens. This motion was not heard as the defense requested to hold off on having it argued before the commission.

A Shortened Court Session

The two motions discussed above were argued before lunch break. Shortly after finishing arguments for the second motion, the all of the attorneys and judge had a meeting, presumably in his chambers. The judge then dismissed the court for lunch. After the court reconvened for the afternoon session, the judge announced that the court was going to close the hearing to the public. The remaining motion, AE 070FFF and portions of the second motion, AE 070CCC were to be argued in a closed session due to concerns about classified material.

Accordingly, all of the victims and NGOs had to leave the courtroom and were done in court for the day. Our NGO escort informed us afterwards that we would have a chance to talk with the Chief Prosecutor after the conclusion of the closed session.

Chief Prosecutor of Military Commissions, Brigadier General Mark S. Martins was kind enough to pose with me following his briefing with the NGO observers in September 2015.

Meeting with Chief Prosecutor, Brigadier General Martins

The last time I traveled to GTMO in 2015, I had the pleasure of meeting the Chief Prosecutor of Military Commissions, Brigadier General Mark Martins when he sat down with all the NGO observers for a Q&A session. This time, he remembered me at the terminal in Andrews on Sunday and we briefly exchanged pleasantries.

We met him again for a Q&A session after the closed session on Monday. He was as gracious as he was last time. His intellect, legal knowledge, and scholarly demeanor are most impressive. The NGOs asked insightful and tough questions. He answered each with candor showing his firm belief in the rule of law.

I come away with the impression that he is unlikely to say anything other than that his personnel are doing the best job they can do under limiting circumstances. He seems to recognize that there are issues with how the proceedings occur. However, he is the best position to know the effort his staff exerts in trying the cases within the framework of the system they are given.

The military commission system is deeply adversarial. So far we have only heard one side. We are greatly interested in hearing the perspective of the defense counsel when we are given the chance.

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Prohibited from observing Guantanamo Bay hearing at stateside CCTV viewing facility

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”

Travel to Andrews/Public Hearing for August Hadi al Iraqi Session?

I’m on my way to Guantanamo Bay Cuba as a member of the Program on International Human Rights Law at the IU McKinney School of Law. This will be the second time I’ve traveled to view a session of hearings for the Hadi al Iraqi military commission case. This week is scheduled to address several issues, including the deposition of Ahmed al-Darbi, a detainee who has traded his release from Guantanamo in exchange for testimony in several cases.

First Attempt – Arrived One Day Early For My Flight

Andrews-Passenger-Terminal-e1455778259356

An empty Passenger (PAX) Terminal at Andrews.

After a very rainy drive to D.C. on Friday, I picked up copies of the Guantanamo Bay Fair Trial Manual: Excerpts and the Know Before You Go guide to give to my fellow NGO observers. These materials have been developed by the Program on International Human Rights Law at the IU McKinney School of Law, and serve as valuable resources to NGO observers.

Saturday morning, I arrived at Andrews Joint Air Base and was able, unlike initially last time, to gain entry on to the base. When I arrived to the terminal, I was slightly alarmed to only find the only two people in the entire terminal to be two Airmen cleaning the floor. They were quickly able to inform me my flight was to leave the next day, Sunday.

The email I received stated the flight would be the 13 (Sat), giving the correct date but wrong day. Misinterpretation and misinformation is a fairly common occurrence in my experience working for and with federal, state, and local governmental entities. No harm, no foul this time though. It was a good dry run. I know exactly how to get to the Passenger Terminal (PAX Terminal) and have the day to brush up on the available case documents and potential issues.

Public hearing?

Ahmad al Darbi, set to be deposed this week in the Hadi case, pled guilty in 2014 to the 2002 attack on a French oil tanker. He has yet to be sentenced.

On Friday, the military judge issued an order that effectively will deny public access to the deposition of al Darbi this week.

Ordinarily, the military commission proceedings are available for viewing via a secure feed at Fort Meade, Maryland. However, that may not be the case this week. I will confirm this tomorrow at the terminal.

If this is true, then the five of us NGOs will bear the responsibility alone to report on the deposition. We are the “eyes and ears of the outside world as to what happens at Guantanamo Bay.” This responsibility will greatly be enhanced if others cannot view the proceedings at Ft. Meade.

In 2012, the defense counsel for the U.S. v. Al-Nashari case summited a motion to request that the proceedings be available to media outlets in addition to the CCTV locations. In response to the motion, the government cited U.S. v. Moussaoui, a case in which the Court found that an audio-visual feed and online publishing of the transcripts “fully satisfy the constitutional requirements for openness and accessibility.”

The courtroom in the Expeditionary Legal Complex at Guantanamo Bay, looking from the gallery. (Photo credit: CBS News).

The suspension of a live feed of a deposition is different than not allowing live cameras in a military proceeding at issue in Moussaoui, but the suspension of the audio-visual feed seems to implicate a potential conflict with the constitutional requirements for openness and accessibility.

More research would need to be done to determine the legal impact of the feed suspension and I look forward to investigating further, should it turn out to be the case.

Second attempt – The Correct Day of My Flight

After my self-imposed delay, I successfully arrived at the Passenger (PAX) Terminal Sunday morning and met my fellow NGO observers. Five total NGO observers representing five different organizations are set to travel to GTMO. Those organizations include the New York City Bar Association, Georgetown University Law Center, National District Attorneys Association, and Judicial Watch. Each observer seems eager to get there and get to work.

The next blog post I make will be from Guantanamo Bay Cuba.

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Return trip to Guantanamo Bay- August Hearing for Abd al Hadi al Iraqi

I am a 2015 J.D. graduate of the Indiana University Robert H. McKinney School of Law and a 2017 LL.M. graduate of Notre Dame Law School.

This Pentagon approved sketch by court artist Janet Hamlin shows Hadi al Iraqi (aka Nashwan al-Tamir) during his arraignment in June 2014.

The upcoming hearing scheduled for Abd al Hadi al Iraqi (aka Nashwan al-Tamir) marks the third time I have been selected to travel to Guantanamo Bay, Cuba to view military commission hearings.

After one cancellation in March 2015, I was fortunate enough to have traveled to GTMO in September 2015. It was a short, but fascinating experience. I am grateful for the opportunity to potentially make the trip again. My previous blog posts can be found here.

The hearings I am scheduled to observe so far are still set for August 14-18.

Where the Case Stands

Detained in GTMO since 2007 and accused of war crimes related to his alleged conduct as an alleged al-Qaida commander, the U.S. charged Hadi al Iraqi in 2014. During my first trip to GTMO, he fired his lead military appointed defense counsel in an effort to retain a private attorney.

As of October 2016, the case also has a new military judge. Marine Corps Colonel P.S.

The current presiding judge Marine Corps Colonel P.S. Rubin

Rubin succeeded Navy Captain J.K. Waits without explanation.

August Hearing Session

According to the Docketing Order, dated July 21, 2017, the upcoming hearing session should consist of argument and the presentation of evidence related to four defense motions. The order can be found here.

Two of the motions deal with compelling discovery of statements made by a defendant in another military commission case, Ahmed Mohammed Ahmed Haza al-Darbi. Another motion is seeking to dismiss the charges against their client because the defense claims Congress lacks the Constitutional power to limit the jurisdiction of military commissions to non-citizens. In the fourth motion, the defense seeks the commission’s permission to allow the defendant to use a personal computer.

The last time I traveled to GTMO, I made a preliminary blog post going off of the docketing order as well, but all of that went out the window when everyone received word that Hadi wanted to fire his counsel. Therefore, if all of these issues are actually heard, then it will be a fair amount of progress.

Preliminary Thoughts

Logo of Joint Task Force-GTMO. This group of military personnel is responsible for the care and custody of the detainees.

I am driving to Joint Andrews Air Base tomorrow. I am looking forward to again experiencing the incredibly bureaucratic process of traveling to GTMO. Viewing the hearing last time had a significant impact on how I view certain institutions, such as the military and the justice system, that are built on notions of patriotism. I also may be able to see some of my fellow Indiana National Guardsmen who arrived in GTMO last summer, if they are still there.

Tyler J. Smith, J.D., LL.M.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Going Back to Guantanamo Bay Today

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

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

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

laptop and boarding pass -- april -- Andrews

Laptop, passport & boarding passcaption

Qaeda member who allegedly committed war crimes. These hearings were originally scheduled for two weeks — five days this coming week and five days next week — but next week’s hearings were cancelled.

Boarding Pass -- alone - Andrews -- April 2017

Boarding pass. Note the price.

We were meant to arrive at Andrews at 6:00 AM for a 10:00 AM flight — four hours in advance is standard. While waiting, there is time for me to meet the other 4 non-governmental organization observers (described below), and to see who else is scheduled to fly with us. There has not been much air traffic at Andrews on any of my trips to and from Guantanamo. On occasion, dignitaries on official planes will pass through the otherwise spartan Andrews Air Terminal.

The defendant — Nashwan al-Tamir / Abd al Hadi al Iraqi

The defendant – Tamir / Hadi

Tamir / Hadi is a high-value detainee who is an alleged high-ranking member of al Qaeda who served as liaison between al Qaeda in Iraq and the Taliban. He is charged under the U.S. Military Commissions Act with a series of war crimes, including attacking protected property, perfidy / treachery, denying quarter, and targeting noncombatants such as medical workers and civilians. Among other things, he is alleged to have helped the Taliban blow up the monument-sized Bamiyan Valley Buddha Statues, which were a UNESCO World Heritage site.

Tamir / Hadi was officially charged in the equivalent of an arraignment in a Guantanamo Bay courtroom in June 2014. I happened to be present at Guantanamo and in the courtroom for that proceeding.

Unlike most of the other detainees charged with international crimes, Tamir / Hadi is facing a maximum sentence of life imprisonment, rather than a death sentence faced by, for example, the five men charged with masterminding the 9/11 attacks on the World Trade Center and the Pentagon.

Our Pre-Trial Hearing Week at Gitmo

It is unclear what will transpire during this week of pre-trial hearings. I downloaded an official docket of motions originally scheduled to be argued in court this week. However, the amended docket is hidden behind a pentagon security firewall, beyond the reach of the small handful of “observers”, like myself taking today’s 3-hour flight to this remote outpost tribunal. Rumor has it that we will only have 2 days in the courtroom this week, though the hearings are scheduled morning and evening, Monday – Friday. This means that we may have plenty of time to explore non-courtroom endeavors, including research and writing. Time permitting, I will be able to focus on research for my new book, The Guantanamo Bay Reader: Voices of Those Living and Shaping the Gitmo Experience.

Inevitably, many of us on these trips find time to engage in recreational activities.

It’s good to see some familiar faces here in the terminal, weary as we all gear up for a solid week of Guantanamo work.

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

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

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

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

Updated Guantanamo Bay Fair Trial Manual & “Know Before You Go to Guantanamo” Guide

The Gitmo Observer has updated 4 draft documents useful for anyone interested in the Guantanamo Bay, Cuba U.S. Military Commissions, and for anyone traveling to Guantanamo Bay for hearings or other purposes.

Each document is in a preliminary draft stage, with further research, writing and editing underway. Nevertheless, the Gitmo Observer hopes that these materials are helpful.

The documents, which are available for free download below, are:

(1) Guantanamo Bay Fair Trial Manual (Volume I) – (pink cover – 344 pages) (27 February 2017)

Lists the international and domestic law applied at the Guantanamo military commissions, explains the law, and identifies how the law affects Guantanamo stakeholders, such as the defense, prosecution, victims and victims’ families, witnesses, U.S. military who guard the detainees, the media, and other stakeholders. Explores rights and interests of all stakeholders, not just rights of the defense.

Contains a useful Glossary for military and legal terms, and for items associated with Guantanamo Bay.

(2) Appendices to Guantanamo Bay Fair Trial Manual (Volume II) (blue cover – 268 pages) (27 February 2017)

Contains important law documents related to the proceedings, such as the charge sheets (indictments) of the 3 major pending cases, and excerpts from binding human rights and humanitarian law treaties (e.g., Geneva Conventions, Convention Against Torture, Civil & Political Rights Covenant, Race Convention), the U.S. Constitution, U.S. Supreme Court cases, the Military Commissions Act, Presidential Executive Orders, and military commission jurisprudence.

(3) Guantanamo Bay Fair Trial Manual Excerpts (yellow cover — 102 pages) (27 February 2017)

A selection of important sections of the Full Guantanamo Bay Fair Trial Manual. Provides background information on the military commissions, descriptions of the 3 active Guantanamo Bay hearings, list of previously convicted detainees, the status of current detainees, a schematic of the courtroom (identifying principal courtroom actors), and a Glossary of military and legal terms, and for items associated with Guantanamo Bay.

(4) Know Before You Go To Guantanamo Bay — Tips & Suggestions (green cover — 76 pages) (29 December 2016)

A guide for anyone traveling to Guantanamo Bay for military commission hearings, client visits, media trips, or other purposes. Contains substantial information geared towards non-governmental organization representatives traveling to observe Guantanamo hearings, but much of the information is useful for any traveler. Contains information about lodging, Guantanamo Bay restaurants, evening / weekend adult entertainment (bars), water activities (beaches, boating, swimming), outdoor activities (hiking, golf, tennis, etc), other sports (bowling, pool), movie theaters, gyms, religious activities (services, fellowships), and more.

If you have any comments or suggestions for our four documents, please feel free to let us know at GitmoObserver@yahoo.com.

We have received very positive, constructive feedback in the past, and we look forward to further input from you!

From Indianapolis City Employee to Guantanamo Bay Observer — Nomination, Confirmation, Preparation

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.

Duties and Responsibilities

One of the most important tasks of anyone traveling to Guantanamo Bay as part of the IU McKinney MCOP is to contribute to the Guantanamo Bay Fair Trial Manual. You can find the Manual here: https://gitmoobserver.com/military-commission-observers-manual/

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)

Program in International Human Rights Law

Indiana University McKinney School of Law

My travel to Ft. Meade to Monitor Guantanamo Bay Hearings for al Nashiri

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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)

Program in International Human Rights Law

Indiana University McKinney School of Law

At Joint Base Andrews Flying to Guantanamo Bay, Cuba

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.

My boarding pass for Gitmo, & my yellow Guantanamo Bay Fair Trial Manual: Excerpts.

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)

Program in International Human Rights Law

Indiana University McKinney School of Law

(Posted by G. Edwards on behalf of S. Willard)

Preparing for my mission to Guantanamo Bay, Cuba

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)

Program in International Human Rights Law

Indiana University McKinney School of Law