Reporting from Guantanamo Bay
I am a recent graduate of the Indiana University McKinney School of Law (IU McKinney) and I am a representative of the IU McKinney Military Commission Observation Project (MCOP).
I traveled to Guantanamo Bay, Cuba this weekend to monitor hearings in a U.S. military commission against an alleged high-level member of al-Qaeda who is charged with war crimes.
My mission at Guantanamo is to attend, monitor, be seen, analyze, critique and report on the proceedings of the defendant, Mr. Nashwan al-Tamir / Abd Hadi al Iraqi (hereinafter “Nashwan / Hadi”). More about the MCOP and Nashwan / Hadi may be read through my earlier blog posts found here.
The Only Thing Constant in Guantanamo
Three fellow non-governmental organization (NGO) representatives join me this week in Guantanamo.
On Monday morning (24 September 2018), my fellow NGO representatives and I walked from our residence tents located in Camp Justice to the courthouse complex, about one hundred yards away.
I observed heavy equipment mobilizing around the courthouse complex as we walked. While I presume this equipment is being employed pursuant to a series of multi-million dollar expansions proposed for Guantanamo under the Trump administration in 2018, I cannot say with certainty.
After passing through a series of security checks to gain entry into the courtroom site, we joined media representatives and military personnel in the Guantanamo courtroom viewing gallery where we would watch the proceedings.
I entered the gallery around 8:30 a.m. and observed a nearly-empty courtroom behind a double-paned glass wall separating the gallery from the well of the courtroom. Only a few uniformed military personnel sat along the right-hand courtroom wall, while another conducted mic checks throughout. I observed a 40-second delay between the live activities within the courtroom, the sound emitting from the gallery speakers, and the images displayed on five closed circuit televisions (CCTVs) mounted within the gallery. I learned to expect this delay through the Know Before You Go To Guantanamo Bay guide, and have since been informed by one of my escorts that the delay seeks to ensure that classified information is not released into to the gallery, and in turn to the public at large.
At 8:57 a.m., a U.S. Army internal security officer briefed those of us in the gallery on proper gallery decorum and standard emergency protocol. He informed us that we were visible to the rest of the court attendees, that we were otherwise visible through gallery cameras, and that we were not to cause any distractions during the hearing. He told us that we were free to exit the gallery during proceedings (or during recess), but that we should take our personal belongings with us when we left. He told us that the Office of Military Commissions (OMC) would not assume responsibility for our possessions, and that all materials left in the gallery after court ended would be destroyed. The courtroom remained nearly-empty during this time, with only a few military personnel moving throughout.
At 9:02 a.m., another Army internal security officer informed us that the day’s scheduled hearing was delayed indefinitely, “if it is to occur at all”. He told us that we were free to exit the court site and return later should the hearing be rescheduled. As we exited the gallery, I confirmed with the announcing officer that Nashwan / Hadi was not present at the court site. I began to accept the possibility that I may not have a chance to monitor live proceedings while at Guantanamo.
My fellow NGO representatives and I remained near the court site as directed while we waited to receive further updates on the now delayed proceedings. By 12:00 p.m. (noon), we had yet to hear anything, and I became restless. Clamoring for news, I fruitlessly searched through various web resources, including the Office of Military Commissions (OMC) website, and the Miami Herald, which commonly features articles published by Ms. Carol Rosenberg. Ms. Rosenberg is an award-winning and widely-published reporter of Guantanamo happenings, and was among the media representatives present with me in the courtroom gallery when the delay was announced.
At 2:30 p.m., our escorts received notice that the hearings would continue, and that we should immediately return to the courtroom gallery. However, upon our return, we discovered that proceedings were yet again delayed, this time until 4:00 p.m.
“The only thing constant in Guantanamo is change,” one of my escorts declared with a chuckle.
Commission Hearing Resumes
Finally, at 4:03 p.m., the recently detailed Marine Lt. Col. Michael Libretto took the bench for the first time as the presiding military judge over the Nashwan / Hadi case. Mr. Adam Thurschwell spoke as the lead defense attorney for Nashwan / Hadi, while Mr. Vaughn Spencer spoke as the prosecuting attorney for the U.S. Government.
Libretto began the Monday 24 September 2018 hearing by stating that Nashwan / Hadi would not be present for the day’s proceedings. Libretto said that today’s proceedings were delayed because Nashwan / Hadi “refused to attend…and refused to expressly waive his presence via a written waiver.”
Next, Libretto stated that a recently detailed U.S. Army Senior Medical Officer or “SMO” (whose duties began on 17 September 2018) conducted a medical examination of Nashwan / Hadi following Nashwan’s / Hadi’s “refusal” to attend. Libretto then stated that that today’s hearing was being held “for the limited purpose of hearing testimony from the [SMO]”.
Next, prosecuting counsel (Spencer) and defense counsel (Thurschwell) took turns questioning the SMO. The crux of their questions regarded Nashwan’s / Hadi’s health concerns, and whether or not it would be reasonable for this week’s remaining commission hearings to proceed in Nashwan’s / Hadi’s absence.
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.
My first day of monitoring hearings at Guantanamo required great patience and flexibility.
Pleased stay tuned for future updates.
Jacob Irven, J.D. 2018
Military Commission Observation Project
Program in International Human Rights Law
Indiana University McKinney School of Law
Voter Protection Legal Fellow
Indiana Democratic Party