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
Me speaking during the Program in International Human Rights Law 20th 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 20th 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.
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
I’m at Andrews Air Force Base waiting for a plane to take me to Guantanamo Bay, Cuba, to monitor hearings in the case against Khalid Sheikh Mohammed (KSM) and four other alleged masterminds of the 9/11 attacks (the “9/11 case”). The hearings are scheduled to occur from 28 April through 5 May 2018.
I arrived in Washington, D.C. on Thursday, April 26 and have been preparing for my final exams that I am taking the week after I return from Gtmo.
This week’s hearings may likely include the following issues, including motions regarding CIA black site location information, access for the Defense to interview current or former members of the CIA, the Trump administration’s influence on military justice process, access to further evidence through discovery, current confinement issues, and procedural issues regarding the speed at which unclassified pleadings are released publicly.
I will report back after my observation this week.
Sheila Willard (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
I was confirmed by the Pentagon to attend, observe, be observed, analyze, critique, and report on military commission hearings at the Guantanamo Bay Naval Base (GTMO) in the case against Khalid Sheikh Mohammed (KSM) and four other alleged masterminds of the 9/11 attacks (the “9/11 case”). The hearings are scheduled to occur from 28 April through 5 May 2018.
Meeting fellow NGO observers in Gtmo during my last observation, October 2017.
This will be my fourth military commission observation. My first observation was at Ft. Meade, Maryland, where I observed hearings in the 9/11 case via CCTV in October 2016. My second observation was in January 2017 at Guantanamo Bay, Cuba, where I observed hearings in the case against Hadi al Iraqi / Nashwan al Tamir, an alleged high-ranking member of al Qaeda. My third observation took me back to Guantanamo Bay where I attended the 9/11 hearings in October 2017.
Background and Interest in Observing
I became interested in the MCOP during the fall of my second year of law school after hearing about the program and other students’ experiences in observing the hearings. Stemming from my interest in human rights, I applied to participate in the MCOP observations.
Touristing in a bell tower while working with refugees at an NGO in Prague.
In the summer of 2017, I worked in Lisbon, Portugal and Prague, Czech Republic at non-governmental organizations (NGOs) through the Program in International Human Rights Law (PIHRL), which is the program that administers the MCOP. During my time in Prague, I had the incredible experience of working with people seeking asylum in Czech Republic.
The PIHRL recently celebrated 20 years of successful internship placements around the world. I was also a research assistant to the program director of PIHRL in the fall of 2017. This coming fall, I will be working abroad in an area of international human rights law.
Preparing to Observe
Even though my observation is a few weeks away, I am preparing now so that I am fully informed and updated on the hearings. I am paying careful attention to a document developed and written by MCOP participants titled What Human Rights Non-Governmental Organization (NGO) Observers and Others May Want to Know Before Traveling to Guantanamo Bay, Cuba. 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 not be complete, even though I have traveled to Ft. Meade and Guantanamo in the past. It is a resource that is full of information not only for the first-time participant, but also for the seasoned observer.
I have also been keeping up-to-date on the hearings and goings on at Guantanamo by following the Miami Herald online, as journalist Carol Rosenberg keeps close watch on the proceedings and reports on the hearings and beyond. I have also found Twitter to be instrumental in keeping informed about the hearings.
I will soon begin to prepare my travel arrangements to Andrews Air Force Base in Maryland, where I will depart to Guantanamo Bay.
NGO Coins
The MCOP has developed a special coin for distribution. I will have a few coins available during this observation.
Sheila Willard (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
I am preparing to depart for Guantanamo Bay on my final observer mission as a student at the Indiana University McKinney School. I will be traveling for the Hadi al Iraqi/Nashwan al Tamir hearings taking place on 17-18 April 2018. Although the hearings were initially scheduled to last the entire week, observers were informed that the 14-21 April hearing week has been shortened to 16-19 April 2018. Two travel days are normally allotted for in person missions to Guantanamo. The schedule change is not atypical as my last trip to Guantanamo was initially expected to last a few days longer than originally scheduled, and although we ended up returning on the originally scheduled date, we did not learn this until we were already in Guantanamo.
How I Got Involved
I learned of the Military Commission Observation Project at McKinney before I applied to the Law School and the Program did play a role in my decision to apply. During my first year I was determined to become involved in the program and I applied using the link on the Law School’s web site. Before I considered traveling to Guantanamo Bay I attempted to travel to Fort Meade, Maryland to view hearings via closed-circuit video stream on the military base. Unfortunately, the hearings were cancelled when I was first scheduled to travel to Ft. Meade, so I tried again. Poetically, the first set of hearings that I was able to view at Ft. Meade were the Hadi al Iraqi/Nashwan al Tamir hearings, the same case that I am scheduled to travel to Guantanamo for next month on my last mission. When I traveled to Ft. Meade, I met Professor Edwards and a few other students on the base and Professor Edwards explained what was going on during short court recesses. The military commission is different from civilian courts in the United States. I learned about concepts such as: the convening authority, sensitive compartmentalized information facilities (SCIF), the prisoner/detainee distinction, unusual chain of custody rules, accusations of violations of attorney client privilege, and many more. I cannot begin to account for the volume of knowledge that I acquired through my travels to Ft. Meade, Guantanamo Bay, and attending law school events. When I was eventually allowed to travel to Guantanamo Bay, I knew a little of what to expect because I had already seen the courtroom, although nothing can substitute for being there in person.
Observers from Indiana at Ft. Meade monitoring a Guantanamo Bay Military Commission hearing in 2016.
Developments in Guantanamo Bay
As I prepare to depart for Guantanamo I am cognizant of changes that are occurring in the Bay. Secretary Mattis fired the Convening Authority, the case involving the U.S. Cole bombing has been abated, a new attorney client meeting building is in the works, and a contract was awarded to construct a new school. Further, Joint Task Force Guantanamo is examining prisoner/detainee capacity and what it would take to increase capacity and bids are requested for a mental health facility with padded cells . Staying up-to-date is essential to the role that we have as observers. I will continue to update this blog through my return so that others will know the goings-on during my travels.
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.
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)
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)
I am scheduled to fly to Guantanamo Bay, Cuba to monitor hearings in the U.S. Military Commission case against Mr. Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri. Mr. al Nashiri is facing war crimes charges as the alleged mastermind of the October 2000
bombing of the USS Cole off the coast of Yemen, killing 17 sailors and wounding many more. I am a second-year student at Indiana University McKinney School of Law, and was nominated by our school’s Military Commission Observation Project (MCOP) and confirmed by the Pentagon’s Office of Military Commissions (OMC) for this monitoring role, from 11 to 18 November 2017.
Current Case Status
Mr. al Nashiri’s case is in a position no other Guantanamo case has been in before.
Several weeks ago, Mr. al Nashiri’s defense team consisted of Navy Lieutenant Alaric Piette, Ms. Rosa Eliades, Ms. Mary Spears, and Mr. Rick Kammen. Since Mr. al Nashiri faces the death penalty, he has, “to the extent practicable”, the statutory right to have a “Learned Counsel” — or an attorney who is qualified to serve in capital cases. Mr. Kammen served as Mr. al Nashiri’s Learned Counsel since 2008.
On 11 October 2017, Brigadier General John Baker, chief defense counsel for the Military Commissions, released Mr. Kammen, Ms. Eliades, and Ms. Spears for what he described as “good cause” due to “lack of confidence in the confidentiality of their privileged conversations with [al Nashiri] at Guantanamo” according to the release memo singed by General Baker.
Judge Spath ordered Mr. Kammen, Ms. Eliades, and Ms. Spears to appear in court at Guantanamo on 30 October 2017, however the three attorneys did not board the plane to go down there. Judge Spath said the hearings will continue and that General Baker’s release of the three attorneys was “null and void.”
On 1 November 2017, Judge Spath held General Baker in contempt for “willfully refus[ing] to obey the commission’s order to testify” and for “willfully refus[ing] to obey the commission’s order to rescind [his] excusal of [Mr. Kammen, Ms. Eliades, and Ms. Spears].” On 3 November 2017, a Defense Department lawyer agreed to defer General Baker’s punishment, and General Baker was released from confinement to his quarters.
BG Baker after being released from confinement to his quarters. Picture from Miami Herald.
Judge Spath has said that he intends on continuing with the hearings on “things that don’t relate to capital issues” through next week. It is still unclear whether the hearings will continue the week of 13 November 2017, when I am scheduled to be at Guantanamo.
Preliminary Thoughts
I am still hopeful I will have the opportunity to travel down to Guantanamo. I am currently scheduled to depart from Joint Base Andrews on 11 November. I am looking forward to attending, observing (and being observed), analyzing, critiquing, and reporting on the military commissions as a neutral stakeholder, and ultimately having this incredible potential opportunity that, unfortunately, not many people get.
Jessica Ayer (J.D. Candidate, ’19)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
I was nominated by the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law and confirmed by the Pentagon to travel to Guantanamo Bay, Cuba to monitor military commission hearings in the case against Abd al Hadi al Iraqi, who has requested to be called Nashwan al Tamir, from 30 September – 7 October 2017. Hadi is an alleged senior member of al-Qaeda responsible for war crimes.
My earlier monitoring at Ft. Meade and Guantanamo
This will be my third time to observe in the war crimes pre-trial hearings. I traveled toFt. Meade, Maryland in October 2016 to observe the hearing in the case against Khalid Sheikh Mohammed and 4 other alleged masterminds of the 9/11 attacks, and to Guantanamo Bay, Cuba in January 2017 to observe hearings in the case against Hadi, the same defendant in the upcoming hearings.
Possible hearing delay
As of last Thursday, 14 September, Carol Rosenberg reported in the Miami Herald that Hadi has been referred for neck surgery after a period of time of known health issues. It was reported that he had lower back surgery earlier this month. There is no official word yet from the Pentagon as to the status of the hearings slated to begin 2 October and run through 6 October. The Miami Herald reported that Pentagon spokesman Air Force Maj. Ben said the hearings were still on (as of Friday, 15 October) and that any request for delay would only be considered in the event that the defense file the appropriate motion.
As of today, Monday 18 September, the defense filed a motion regarding Hadi’s current medical status to request an emergency motion to abate the proceedings until he is physically competent to stand trial, per the filing listing available on the Military Commissions website. The most recent motion regarding the emergency abatement was filed today and is still being processed under security review and not available to read by the public. Once it has gone through the security review, the document will become available here.
Another hurricane?
The National Oceanic and Atomspheric Administration (NOAA) has announced that a category 5 hurricane is heading towards the Caribbean. Hurricane Maria is a 160mph storm that recently made landfall on Dominica and is now headed towards Puerto Rico, which is officially on national alert after President Trump issued an emergency declaration for federal assistance for the territory. If it continues on its current trajectory, it may narrowly miss Cuba as it veers north towards the Atlantic.
Preliminary thoughts
I am grateful to have the opportunity to travel to Guantanamo again to observe the Hadi hearings, but am aware that the hearings may be canceled and rescheduled to allow for a lengthy recovery period of the defendant. I will continue to prepare for the hearings as if they were to go forward so that I am fully prepared in case I am able to travel next week to Guantanamo.
Observers representing various organizations posing in front of our sleeping quarters in January 2017 at Camp Justice in Guantanamo Bay, Cuba.
Observers from Indiana at Ft. Meade monitoring a Guantanamo Bay Military Commission hearing. Observers were permitted to see / hear the video / audio feed from the Guantanamo courtroom. (file photo)
Public observers at Ft. Meade, Maryland were banned today from watching satellite broadcasts of a hearing being conducted in the Guantanamo Bay courtroom, even though public observers physically at Guantanamo were permitted to view the same hearing.
Pentagon pledge of open and transparent hearings
For many years U.S. Military Commissions have been held at Guantanamo Bay, Cuba, to try individuals charged with war crimes. The Pentagon has stated that these criminal proceedings should be open and transparent, and that to facilitate transparency the Pentagon permits a small number of Observers to travel to Guantanamo to monitor hearings. Observers typically represent human rights or advocacy groups, or academic programs. Observers serve as eyes and ears for the general public, who do not have the opportunity to travel to Guantanamo Bay to witness hearings.
The Guantanamo Bay Military Commission Courtroom, viewed from the spectator gallery. (file photo)
Observers sit in an enclosed spectator gallery in the rear of the Guantanamo courtroom, separated from the lawyers, prosecutors and defendants by a double-paned glass. Observers can see what is going on in the courtroom, and hear what is said.
The Pentagon also permits Observers to view Guantanamo proceedings by close-circuit television (CCTV) in a secure facility at Ft. Meade, Maryland. Observers at Ft. Meade can see what the cameras are pointing at in the Guantanamo courtroom, and hear what he Observers at Guantanamo hear.
Today, in what appears to be the first time, Observers were permitted to be present in the Guantanamo courtroom spectator gallery and monitor proceedings live, but Observers were not permitted to view those same proceedings by CCTV at Ft. Meade.
Thus, NGOs in the U.S. were effectively banned from monitoring today’s proceeding.
Why the ban?
It is unclear why Observers in the U.S. were banned from monitoring the hearings by CCTV at Ft. Meade today, while Observers could view the hearings live at Guantanamo.
Lawyers for the prosecution and defense apparently argued yesterday and over the weekend about the Ft. Meade ban. But, at least some of those arguments were held behind closed doors, with no Observer being permitted to hear. Though motion papers were filed related to the ban, those documents are subject to a security review and are not releasable to the public until after 14 days, and may not be released even then.
There are 5 Observers at Guantanamo this week, and they were able to hear some arguments about the Ft. Meade ban. Indeed, they were in the courtroom able to witness today’s hearings – the same hearings from which the Fort Meade Observers were banned.
Again, it is unclear what the convincing argument is that Observers can watch today’s proceedings live in the Guantanamo courtroom, but other Observers cannot watch today’s proceedings by CCTV at Ft. Meade.
My Ft. Meade experiences today
I arrived at Ft. Meade well before the scheduled start time of today’s hearing. The staff member who oversees the Ft. Meade viewing room was there, the lights were on in the room, and the miniature lockers were in place in the rear of the viewing room so Observers could store their cell phones which can’t be used during the CCTV broadcasts.
The minutes ticked away, and soon I learned that an official message had been received that the hearings would not be broadcast to Ft. Meade today, and that was by order.
Nevertheless, I waited to see if the hearing would open, with an announcement of closure made, before the transmission stopped.
Also, was there still a chance that the hearing would be transmitted in full? Just as an order is made, an order can be reversed.
In today’s case, the initial order regarding this week’s hearings was that Observers could monitor at Guantanamo Bay and at Ft. Meade. A subsequent order reversed the portion of the former order that permitted transmission to Ft. Meade. That reversal prohibited the transmission to Ft. Meade. That reversal could very well have been, and could still be, reversed, and transmission could have occurred today. It appears that it would only take a flip of a switch to begin transmitting from Guantanamo to Ft. Meade, and that such transmissions could be started at any point.
I continued to wait. The large video screen in front of the viewing room stayed dark and blank.
The person at Ft. Meade who oversees the technical side of the transmission sits in a different room of the same building where the viewing room is. I checked with that person, and was informed that there was no sign that the transmission would commence.
I left about 90 minutes into the hearing, with the screen still dark and blank, witnessing none of today’s testimony.
Options?
Yesterday I discussed in a blog post what my options were for being able to observe today’s hearings, particularly since I (and other Observers) chose not to travel to Guantanamo Bay this week in part because we were initially permitted to observe at Ft. Meade. We were informed 4 days ago (Friday) that NGOs would be banned from viewing the hearings at Ft. Meade. By then it was too late to catch the Sunday flight to Guantanamo Bay to view the hearings in person, sitting in the spectator gallery, along with the 5 Observers who are there. There are 14 seats reserved for Observers in the Guantanamo courtroom, so they had room for 9 more Observers this week.
Had I known last week what I know today, I definitely would have requested travel to Guantanamo Bay for this week’s hearings.
I am scheduled to deliver in Australia early next week, and I could have delivered (and still could deliver) that lecture by video rather than in person, freeing me to be at Guantanamo Bay for this entire week. Indeed, if I could go to Guantanamo tonight or tomorrow for the remainder of this week’s hearings that are not being transmitted to Ft. Meade, I would do so and deliver the Australia lecture by video.
Perhaps the Military Commission will permit Observers who were banned from viewing this week’s proceeding at Ft. Meade to view the videotape? The videotape cannot be classified, because if it were, then the 5 Observers at Guantanamo this week would not have been permitted to be in the courtroom for the hearing.
If the reason for the Ft. Meade ban was security associated with transmitting it stateside – maybe the possibility of interception / hacking – then I and other interested Observers could watch the videotape in a secure room at the Pentagon, or in a secure facility when we are next at Guantanamo Bay – and even possibly watch the video in the courtroom itself.
Also, if any victims and family members of victims (VFMs) are interested in watching the video, maybe they will be permitted to do so as well. Several FVMs were present in the Guantanamo courtroom for today’s hearings, but VFMs were denied the opportunity to observe today’s hearing at Ft. Meade, just as Observers were denied the opportunity to observe. Indeed, any member of the general public, aside from Observers, were similarly denied the opportunity to observe at Ft. Meade, though members of the general public are entitled to observe at Ft. Meade, as are Observers, VFMs, and media.
This morning, in a dark, locked, secure Pentagon conference room, I attended a hearing in which Guantanamo’s oldest detainee, 69-year-old Mr. Saifullah Paracha, asked the U.S. government to set him free. I was joined by Judge Aline Fagundes, who is a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, and several other carefully screened civilian monitors.
The hearing was held pursuant to a 2011 Executive Order issued by President Barack Obama that provides detainees periodic reviews to determine if the detainees are a threat to U.S. national security. If the Periodic Review Board (PRB) finds that the detainee is a threat, he remains detained. If he is found not to be a threat, he may be repatriated to his home country or resettled in a third country.
Mr. Paracha argued for his release. The government alleged that Mr. Paracha was a “businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners”.
The PRB is expected to render a decision in Mr. Paracha’s case in about a month.
Today’s hearing – Who? Where?
Today at the Pentagon we had 6 observers from non-governmental organizations (NGOs) and the media. Two of us were from the Guantanamo Bay project I founded at Indiana University McKinney School of Law (GitmoObserver.com). Our project sponsors Indiana Affiliates to travel to hearings at Guantanamo, the Pentagon, and Ft. Meade, Maryland.
We were met by 2 military and one civilian escort in the Pentagon’s Visitor Center, and escorted to a conference room where we talked amongst ourselves and listened to the Military History Channel, waiting for the hearing to commence.
Others present for the hearing included members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. These individuals were not with us at the Pentagon, but were at a separate, undisclosed location in the DC area. It is believed that also present for the hearing, also at one or more undisclosed locations, were the Legal Advisor to the Board, the Case Administrator, a Hearing Clerk, and a Security Officer.
The detainee – Mr. Paracha – was present, by close circuit TV.
Mr. Paracha was joined by a “personal representative”, who is a military official dressed in uniform, who has been spending time with the Mr. Paracha and helping him present his case. The personal representative is not a lawyer or other sort of legal professional, and communications between Mr. Paracha and his personal representative are not protected by attorney client or similar privilege.
The hearing begins
The hearing was scheduled to begin at 9:00 a.m., but what appears to have been a technical glitch resulted in a delay. Some of us were concerned, since at the last PRB we attended the audio feed was great from Guantanamo Bay but there was no visual feed so the screen was blank. Today’s visual feed was blurry, but at least we could see the Guantanamo hearing room and its occupants, unlike at the last PRB.
Mr. Paracha
At 9:14 a.m., a picture appeared on the almost ceiling-height screen.
In our dimly lit conference room, we saw on the screen the dimly lit Guantanamo room where the detainee sat at the end of a rectangular table, facing the camera, with a stack of papers in front of him. They were in one of Guantanamo’s trailer-like, austere, rooms that had plain walls, floor, and table.
In contrast to the bland surroundings, the hearing room had high back office chairs, that looked like high-quality leather chairs one might see in a law associate’s office. Aside from air conditioner units, seemingly from the 80s, hanging window-height on the wall behind Mr. Paracha’s head, there was nothing else on the walls.
On the table in front of Mr. Paracha’s seat was a table-top name plate that said in large, bold, all capital letters “DETAINEE”.
Mr. Paracha wore a white top, with somewhat short sleeves that appeared bunched at the elbows. His attire was clearly not a detainee “uniform”. Through the blur it appeared as though he had a white beard and a bald head.
The personal representative sat at the table on Mr. Paracha’s right, perpendicular to him, and not directly next to him.
The hearing began with a male, off-camera voice announcing that the hearing was commencing, mentioning some hearing rules, identifying who was present – boiler point.
Next came a female voice, again off camera. This voice read the Government’s Unclassified Statement, as follows:
Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them.
Mr. Paracha appeared to be paying close attention to whichever person happened to be speaking at the time – one of the off-camera narrators or his personal representative. The hearing was conducted in English, as a voice in the background stated that Mr. Paracha had waived his right to an interpretation of the hearing in another language of his choice.
While the personal representative spoke, Mr. Paracha would from time to time glance at her. At other times he appeared focused on the papers in front of him, appearing to follow along in English, flipping pages as the script was being read. At times he would place his left open palm firmly on the stack of papers, as though holding them down from a breeze.
The hearing ended at 9:19 — just 5 minutes after it began. This was the shortest PRB I have attended. They typically begin at 9:00 and run no longer than 30 minutes.
No private counsel of Mr. Parach attended today’s PRB, and no statement was read by any private counsel for Mr. Paracha’s today. That was one reason that the PRB was shorter than usual. It is unclear why private counsel did not appear today. A statement by the private counsel Mr. David H. Remes had been posted on the Perriodic Review Board websitehere. But, that statement was the same statement submitted under Mr. Remes for Mr. Paracha’s file review PRB in 2016. That statement ended with this sentence:
For these reasons, I respectfully encourage the Board to convene a full review and hope that it will conclude that Mr. Paracha’s continued detention is unwarranted.
David H. Remes
Approved for Public Release
UNCLASSIFIED
That statement asked the Board to convene a “full review”, and today’s hearing was the “full review” requested. If Mr. Remes submitted a private counsel statement for today’s hearing, that statement was not posted on the PRB website (as of tonight — 8:55 p.m., Tuesday, 21 March 2017), and was not read at today’s hearing. What was posted online under Mr. Remese name was from last year.
Mr. Paracha’s background
Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.
Uzair Paracha, Mr. Paraha’s son, is serving a 30 year sentence in a U.S. federal prison on terrorism-related convitions.
The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.
Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.
Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.
The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.” Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.
Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.
Paracha’s 3 PRB hearings — summary
Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.
Initial Review.Paracha had a PRB initial review on 8 March 2016, and on 7 April 2016 the Board concluded:
The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States. In making this determination, the Board considered the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.
File Review.Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:
On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.” The PRB previously conducted a full review of the detainee and on 7 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States. After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to Whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.O. 13567.
Full Review.It was Mr. Paracha’s full review that was held today. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will repatriate him to Pakistan or send him to a 3rd country – outside the U.S.
The Board will likely publish a decision on this full review in a month or so.
More on this hearing?
The initial part of the PRB was unclassified, and that is the portion of the PRB that Judge Fagundes, the other monitors and I observed. During that portion of the PRB, we were sitting in a secure Pentagon viewing room watching Mr. Paracha and his personal representative live from Guantanamo Bay.
PRBs v. Military Commissions
Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.
PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.
Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.
Professor George Edwards & Judge Aline Fagundes at the Pentagon before the Periodic Review Board (PRB) held on 21 Marh 2017
Judge Fagundes’ observations
Judge Fagundes is the first student from Indiana University McKinney School of Law to participate in all three types of hearings our Indiana Guantanamo Bay Military Commission Observation Project / Gitmo Observer may send affiliates to observe:
She traveled to Guantanamo Bay, Cuba to monitor U.S. Military Commissions live, in the courtroom.
She traveled to Ft. Meade, Maryland, to monitor U.S. Military Commissions via a secure videolink from Guantanamo.
She traveled to the Pentagon to monitor Guantanamo Bay Periodic Review Board (PRB).
Judge Fagundes is researching and writing a paper that focuses on international law requirements for transparency in the U.S. Military Commission system. She has described some of her experiences on this blog – www.GitmoObserver.com.
On Tuesday Guantanamo’s oldest detainee, Mr. Saifullah Paracha, will likely plead at a hearing that he is not a threat to U.S. national security. He will ask to be repatriated to his homeland of Pakistan or resettled in a 3rd country.
During the parole-like hearing, Mr. Paracha will be located in a small, bare trailer at Guantanamo. The proceeding will be videocast live to a small Pentagon room where I plan to watch it with a handful of other carefully screened observers, including two of my Indiana law students (Judge Aline Fagundes and another Master of Laws student).
Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.
Mr. Uzair Paracha, Mr. Paracha’s son, who is serving a 40 year U.S. terrorism sentence
The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.
Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.
Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.
The hearing – a Periodic Review Board – PRB
This hearing at which Mr. Paracha will argue is called a Periodic Review Board (PRB), and will be conducted pursuant to a 7 March 2011 Executive Order (number 13567) which has required most detainees to have a “periodic review” of their detention status.
The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.” Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.
Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.
Paracha’s 3 PRB hearings
Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.
Initial Review. Paracha had a PRB initial review on 8 March 2016, and on 7 April 2016 the Board concluded:
The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States. In making this determination, the Board considered the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.
File Review. Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:
On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.” The PRB previously conducted a full review of the detainee and on 7 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States. After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to Whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.O. 13567.
Full Review. It is Paracha’s full review that is scheduled for this Tuesday. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will repatriate him to Pakistan or send him to a 3rd country – outside the U.S.
The Board will likely publish a decision on this full review in a month or so.
Below is more information about what Tuesday’s full PRB may be like.
Judge Aline Fagundes, a Master of Laws (LL.M. student at Indiana) is expected to attend Mr. Paracha’s PRB at the Pentagon. She was at the Pentagon earlier this month for a different PRB.
What will Paracha’s PRB be like on Tuesday?
Who will be present?
I suspect that other representatives of Non-Governmental Organizations (NGOs) (including 2 students from Indiana University McKinney School of Law) will be present with me at the Pentagon on Tuesday, and possibly some media. This is the third PRB to be held under the Trump Administration.
Others present for the hearing will include members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. Presumably each of those representatives will watch remotely in his or her office in the DC area. Also likely to be present for the hearing are the Legal Advisor to the Board; the Case Administrator; a Hearing Clerk; and a Security Officer, though it is not clear where these individuals would be located at Guantanamo Bay or elsewhere.
Who will make statements made at the PRB?
1. First, U.S. military official will read an “Unclassified Statement”. The statement for Tuesday is already posted online, and is as follows:
Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them.
2. Mr. Paracha’s Pentagon-appointed personal representative may make a statement. The text of this statement has not yet been posted online.
3. Mr. Paracha’s private counsel may make a statement. The text of this statement has not yet been posted online.
More on this hearing?
The initial part of the PRB will be unclassified, and that is the portion of the PRB my students and I will observe. During that portion of the PRB, I will be sitting in a secure Pentagon viewing room watching the hearing live, which will be happening at Guantanamo Bay.
It is possible that the Pentagon will post a statement by Mr. Paracha and the other statements mentioned above (statement by his Pentagon-appointed personal representative and by his private counsel). If these are posted on the PRB website, I will plan to post them on this blog later.
PRBs v. Military Commissions
Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.
PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.
Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.
Conclusion
So far as we can tell, Paracha’s PRB is still scheduled to go forward on Tuesday. That is, the Pentagon has not notified us that it will not go forward. If it does go forward, it seems likely that Mr. Paracha will attend, as there has been no suggestion that he will miss his first full review.
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:
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.
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.
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.
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 my perch as an Indianapolis city employee working in economic development, I don’t often receive an email inquiring about the seriousness of my interest in traveling to Guantanamo Bay, Cuba.
But that’s exactly what happened on January 31, 2017.
Indiana University McKinney School of Law Professor George Edwards, an International Human Rights Law Professor of mine and who was also my third-year law school research paper faculty supervisor, emailed me with a simple question: “Are you available for a quick phone call?”
I was puzzled. I had, years ago, inquired about the law school’s then new Guantanamo Bay Military Commissions Observation Project (MCOP), but after a few exchanges with Professor Edwards and other inquiries, I realized it was simply bad timing on my part.
That said, it turns out I had been in contact with Professor Edwards on an unrelated matter, and renewed my interest in traveling to Guantanamo Bay to monitor military commissions. Professor Edwards and I discussed the project, and he impressed upon me the gravity of the undertaking.
Professor Edwards asked If I really want to travel to Guantanamo Bay to do the work; which includes lots of preparation, work once you’re there, and work once you return.
He reminded me of the importance of the work of our law school’s Program in International Human Rights Law generally, and about the importance of its Guantanamo Bay work which began more than a decade ago.
It was quite clear this wasn’t a passive trip to Cuba; this was to be taken very seriously and the hard work required of each individual would ideally result in substantive and value add contributions to the policies and procedures Professor Edwards and his partners have worked hard to create.
After a discussion with my spouse, I was officially committed.
Background and Experience
For some background, I was not deeply involved with human rights when I was a law student, and I am not a human rights attorney. Since graduating from McKinney law school in 2010, I have worked in the private sector for a global aerospace company and in the nonprofit sector for a disabilities services organization. I currently work for the City of Indianapolis managing real estate transactions and economic development projects and strategy.
In short, I did not think that I was an obvious candidate for a mission to Gitmo as part of a legal proceedings observation effort. But, it is my hope that my outside viewpoint and fresh set of eyes can be beneficial and offer a different perspective as I observe and try to contribute to the understanding of existing guidelines and procedures.
Back to the Storyline
Once I told Professor Edwards I was committing to the assignment, it was time to better understand the process and the various entities involved.
The Indiana University McKinney School of Law Program in International Human Rights Law (PIHRL), under the leadership of Professor Edwards, established the Military Commission Observation Project (MCOP). After the Pentagon Guantanamo Bay Convening Authority granted MCOP Non-Governmental Organization Status, affiliates of Indiana University McKinney became eligible to travel to Guantanamo Bay, Cuba to monitor U.S. military commissions which were established to try alleged perpetrators of war crimes. Specifically, as observers or monitors, our 5 principal responsibilities are to: (a) attend; (b) observe; (c) analyze; (d) critique; and (e) report on hearings of detainees at Gitmo.
My process began by submitting certain personal information for consideration by the MCOP Advisory Council. Once approved for advancement by the Council, my name was then submitted to Pentagon as a nomination. At this point, the Pentagon can confirm you or deny you. Fortunately, on February 9, 2017, I was “CONFIRMED” by a Pentagon representative.
To be specific; from the Pentagon:
“You have been CONFIRMED to observe the March 18-25 9/11 Week ONE military commission in-person at Guantanamo Bay, Cuba. Currently, the flight schedule is as follows:
Departing from Joint Base Andrews to Naval Station Guantanamo Bay on 18 Mar (SAT) at 1000
Departing from Naval Station Guantanamo Bay back to Joint Base Andrews on 25 Mar (SAT) at 1000.”
I then had to fill out various forms and agreements. In some ways, this has been the most complicated part so far, since each of the documents is different, and each document must be completed following very specific guidelines. Professor Edwards sent my “completed” documents back to me numerous times for me to modify my original entries to comply with Pentagon requirements, and with requirements of the Indiana University administration including IU lawyers who review some of the forms before we observers are permitted to return them to the Pentagon. The templates that I was given to follow were helpful, but it was nevertheless still a challenge.
Finally, all the documents were reviewed by Indiana University officials (including the IU Treasurer) and by the MCOP, I sent all requisite information to the Pentagon in the hopes that they would grant me full clearance.
What Hearings will I monitor?
There are three sets of hearings ongoing at Guantanamo Bay now. During the week of my scheduled monitoring (19 – 25 March 2017), hearings will be held in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. I remember where I was on September 11, 2001, and I cannot escape the impact it had on me. Pictured in this blog is Khalid Shaik Mohammed, the alleged mastermind himself, who was, among other things, waterboarded 183 times.
This is Actually Going to Happen?!?
At this time my focus has turned to the nuts and bolts of traveling from Indianapolis to Cuba. Easy right? Yeah… I plan to fly to Washington, DC then snag a Lyft and drive to a hotel near Andrews Air Force Base in Maryland, which is around a thirty-minute trip. I will stay overnight there, in anticipation of my morning flight from Andrews in a military airplane directly to Guantanamo Bay, Cuba.
While at Guantanamo Bay, among other duties, I plan to provide updates via this blog site.
I hope to offer unique insights contributions to the existing body of work relating to legal proceedings, policies, and guidelines. I see this as an occasion to provide transparency from an “on the ground” perspective. Very few have had the chance to travel to Gitmo to monitor military commission proceedings; I intend to make the most of this opportunity, for the benefit of all concerned.
This Manual is the product of the hard work performed by Professor George Edwards and other student and legal partners who have been observing at Gitmo for years. It provides many of the policies and procedures that govern the treatment of detainees and the trial and legal proceedings. It is an objective and independent document that is used by observers from other institutions and others as they form their own judgments as to whether Guantanamo Bay stakeholders are being afforded all rights and interests they are owed.
I feel it an honor to be able to observe and contribute to this important document.
I am proud to be an Indiana McKinney School of Law alum, and thankful for the opportunity provided by the MCOP and the Program in International Human Rights Law.
Brent M. Pierce, J.D. ’10
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Sunrise over the snowy Joint Base Andrews Airstrip.
[Posted on behalf of S. Willard]
This morning (Sunday the 8th of January) I am traveling to Guantanamo Bay, Cuba to serve as an observer / monitor of criminal hearings in a U.S. military commission case against Abd al Hadi al Iraqi, who is an alleged high ranking member of al Qaeda Iraq and liaison with the Taliban. The U.S. has charged with war crimes resulting in deaths.
I am an Indiana University McKinney School of Law student on mission representing the Indiana University Program on International Human Rights Law’s (PIHRL) Military Commission Observation Project (MCOP). As an observer / monitor, my role is to attend, observe, analyze, critique and report on the military commissions – both the substance and the process.
My passport and Gitmo flight boarding pass.
I arrived at Andrews Air Force Base, just outside of Washington, DC, at 5:00 a.m. for my flight to Cuba, which is supposed to depart at 8:00 a.m. I checked in for my flight, presenting my passport, my Military Orders, and my APACS (which I explain in an earlier blog). It looks like the flight is on schedule this morning.
I met my fellow NGO observers from different human rights groups (NGOs), and we are almost ready to board our plane to take off for Guantanamo Bay, Cuba from Andrews Air Force Base (which is the home of Air Force 1). We were told that the travel will be about 3 hours and 15 minutes.
I have my boarding pass in hand (see the photo) and my yellow Guantanamo Bay Fair Trial Manual: Excerpts copies of which I distributed to the other observers.
I took a few photos at Andrews this morning. I will post additional photos and substantive posts when I arrive at Guantanamo Bay. Because I am having trouble with wifi at Andrews, I am asking Professor Edwards (the Indiana program founding director) if he will post this Andrews Post for me.
Sheila Willard (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
I was nominated by the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law and confirmed by the Pentagon to travel to Guantanamo Bay, Cuba to monitor military commission hearings in the case against Abd al Hadi al Iraqi, who has requested to be called Nashwan al Tamir, from 9 – 14 January 2017. Hadi is an alleged senior member of al-Qaeda responsible for war crimes.
My earlier monitoring at Ft. Meade
Last month I traveled to Ft. Meade, Maryland to monitor military commission hearings in the Guantanamo case against the 5 alleged masterminds of he 9/11 attack on the World Trade Center and Pentagon. The hearings were held at Guantanamo, but broadcast live into a secure facility at Ft. Meade.
Standing at the entrance to the Visitor Center at Ft. Meade, MD after a long day of observation.
Experiencing the hearings first-hand through live feed at Ft. Meade was intriguing in the sense that it seemed surreal. Watching the alleged 9/11 masterminds as one would any defendant on trial was incredibly interesting, considering that until then, the news was my only source of information regarding these men. Seeing Khalid Sheikh Mohammed’s red beard, and hearing the defendants speak in their native language, followed directly by broken English tinged with what appeared to be annoyance made these larger than life figures come to life.
My Guantanamo Bay travel nomination
When I monitored at Ft. Meade, I was excited, and had an enlightening experience.
But when I was nominated to travel to Guantanamo Bay, I could not believe my eyes, or my fortune. The nomination email came from the program on the night before my first final exam of the fall semester, and I couldn’t wait to finish finals so that I could focus on preparing for my mission. Having had the experience at Ft. Meade and now gaining the experience of witnessing the hearings first-hand at Guantanamo Bay will enable me to contribute to Indiana’s project in a better, more informed way.
I was truly honored to represent Indiana at Ft. Meade, and am truly honored to represent Indiana at Guantanamo Bay.
My Background
My journey to this precise moment has been a long, eventful one.
My mother and father came to the United States in the late 1970’s to escape a military regime in Argentina. They ended up in Texas, where I would be born. When I was at the age of 3 months, my mother returned to Argentina with me in tow to finalize her Visa paperwork, and we were unable to return to the U.S. because the lawyer had not completed the paperwork properly. I was raised for 3 years in Argentina, while my mother and father tried desperately to reunite. Eventually, my mother and I were able to return to the U.S. and the family was reunited.
I moved from Texas to Indiana a couple of decades later to join my husband who is a native Hoosier. Indiana has given me so many incredible opportunities that I never imagined!
Indiana -> Andrews Air Force Base -> Guantanamo Bay, Cuba
Paperwork
The nomination to travel to Guantanamo arrived in the middle of law school finals, but I was determined to see the requirements through.
The Pentagon sent me an e-mail containing 4 documents to complete and return in just a couple of days. The documents required by the Pentagon are 1) Hold Harmless Agreement, 2) Invitational Travel Worksheet, 3) Navy Base Access Pass Registration, and 4) NGO Ground Rules, along with a biography and picture.
I completed the paperwork using templates provided by Professor Edwards, since lawyers and Administrators at Indiana University have specific requirements as to how Indiana University affiliates must complete the paperwork.
I submitted my completed draft paperwork to Professor Edwards who sent it back to me once for revisions. I believe that he wanted to make certain that the completed paperwork met Indiana University requirements so that Indiana officials would endorse the paperwork, and he wanted to make certain that the paperwork met the Pentagon’s standards. The Pentagon has rejected paperwork that was not completed properly, so a second pair of eyes was necessary to make certain I was sending accurate, completed paperwork.
Professor Edwards tracked the documents through the appropriate IU channels for approval. Once I received the stamped endorsed documents from IU, I forwarded these to my Pentagon contact, who quickly approved them the same day.
Preparation: The Game Plan
As I prepare for the holidays with my family visiting from Argentina and Texas, I am also preparing for my mission to Guantanamo. I am paying careful attention to a 76-page document titled “What Human Rights Non-Governmental Organization (NGO) Observers and Others May Want to Know Before Traveling to Guantanamo Bay, Cuba”. The guide may be downloaded by visiting this link (includes 76 pages, 2 Appendices). This document, of which Professor George Edwards is the principal author, provides all of the information necessary to successfully prepare for and complete a mission to Guantanamo. Without this guide, preparing for my mission would be near impossible. I have communicated with previous IU McKinney observers Justin Jones and Aline Fagundes, but having a script to fill in the rest of the details that one may forget has been invaluable in my preparation.
[The Know Before You Go guide (76 pages, 2 Appendices) may be found as a standalone document, or, it is included in the Excerpts (158 pages, Know Before You Go starts on page 75 of the Excerpts), which is a digest of the full and complete Manual (over 500 pages).]
I have also been reading other people’s accounts of travel to Cuba on the Gitmo Observer blog (Justin Jones’ and Aline Fagundes’ account of their mission to Guantanamo), and will continue reading where I left off from my trip to Fort Meade, Maryland in October, where I observed the hearings in the case against Khalid Shaik Mohammed.
I will also begin to prepare my travel arrangements to Andrews Air Force Base in Maryland, where I will depart to Guantanamo Bay.
Sheila Willard (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Click this link for the full Manual — over 500 pages. Below you can download the Manual Excerpts!
If you’re going to Guantanamo Bay in January 2017, you might be interested in our new Guantanamo Bay Fair Trial Manual: Excerpts that offers insights into:
what the right to a fair trial is and how a fair trial should look
how to assess whether a fair trial is being afforded to all Guantanamo stakeholders
roles & responsibilities of independent Observers sent to monitor Guantanamo hearings
background info on Guantanamo the military commissions
a schematic of the courtroom (so you can know who is who)
and a 76 page “Know Before You Go To Guantanamo” insert that will tell you what to expect on your flight to Cuba, the ferry ride across Guantanamo Bay from the landing strip to your Quonset Hut accommodations, base security, food (which can be quite good!), beach, boating, and of course the courtroom, the hearings, and briefings by the prosecution and defense.
In the past, the Gitmo Observer (of Indiana University McKinney School of Law) distributed Manual Excerpts to Observers after we arrived at Andrews Air Force on the morning of our flight to Cuba (or distributed at Ft. Meade, Maryland, for Observers monitoring live by secure video-link from Cuba). Observers said they wish they had had it earlier.
So, we started to e-mail the Manual Excerpts to Observers as soon as we were sent e-mail addresses of Observers scheduled to travel, and we would receive those e-mails 3 – 6 days before the scheduled departure. Observers said that they wish they had it even earlier than that, that 3 – 6 days in advance wasn’t enough time.
So now we are posting the Manual Excerpts on this site, for access by anyone interested, whether or note traveling to Guantanamo Bay (or Ft. Meade or elsewhere), but especially for those traveling to Guantanamo Bay to monitor 3 weeks of January 2017 hearings. Ideally, about 40 independent observers would travel to Gitmo this month, to fill all the slots allocated to observers.
The Defense Department has stated that it favors strong and robust transparency. Having full complements of Observers for each hearing week would help promote transparency, human rights, and the rule of law for all military commission stakeholders (with stakeholders including the defense, the prosecution, victims and their families, witnesses, the media, observers, observer escorts / minders, the public, the U.S. soldiers and others who operate the detention facilities, the military commission court staff, and others).
Here are the Excerpts! Please let us know if you have any suggestions for improving our Excerpts, our full Guantanamo Bay Fair Trial Manual (over 500 pages in 2 volumes!) and our Know Before You Go To GuantanamoGuide (76 pages). Send to GitmoObserver@yahoo.com
This is Salman Yahya Hassan Mohammad Rabei’i, according to a New York Times site. If this is Rabei’i, he has lost most of his hair.
Today, after 15 years of conferment at Guantanamo Bay, a Yemeni detainee named Salman Yahya Hassan Mohammad Rabei’i asked the U.S. Government to transfer him from Cuba to a third country.
This parole board like hearing is called a Periodic Review Board (PRB), and was convened pursuant to President Obama’s 2011 Executive Order calling for PRBs to ascertain whether detainees pose a continuing threat to the national security of the U.S. If a detainee does not pose such a threat, he may be repatriated to his home country or transferred to a third country.
Rabei’i had an initial PRB in 2015 in which he appeared in person, and that was followed by a “file review” PRB for which he was not permitted to appear. Today’s PRB was a “full” review.
The PRB was held at Guantanamo Bay, but it was broadcast by CCTV to a secure location at the Pentagon.
I observed the hearing in a modest Pentagon conference room, joined by representatives of the media (Al Jazeera, Courthouse News) and other non-governmental organizations (Judicial Watch, Heritage Foundation, and Human Rights First). Also in attendance was Faisal Sadat, who is a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, who this semester is a human rights law intern at Human Rights Watch. He participated today in his capacity as a representative of the Indiana McKinney Periodic Review Project, which is part of the Law School’s Program in International Human Rights Law.
Who is Rabei’i
Rabei’i was 22 when he arrived at Guantanamo Bay. Allegedly, he was “recruited” by his brother Fawaz to travel to Yemen where he allegedly received al Qaida training. The only other substantive involvement that the U.S. Government levels against him is that he “possibly fought in Tora Bora”.
His special representative, who appeared today in a U.S. Military Uniform, said: “I strongly believe that [Rabei’i] is not a threat to the security of the United States and hope that the Board will agree based on the information we have presented, and even more importantly, on [Rabei’i’s] answers here today”.
His private counsel, Shelby Sullivan-Bennis, contended that upon release, Rabei’i would be a beneficiary of Reprieve’s “Life After Guantanamo” program, “which provides a host of vital support mechanisms that carry our clients through the stages of re-integration”. Sullivan-Bennis said that she had met with members of Rabei’i and members of his family multiple times, that he “has an impressive network of family to provide both emotional and financial support, wherever he is resettled”, and that his education while at Guantanamo Bay and his “meticulously written homework assignments” are evidence that he is “dedicated” – “a trait that will serve him well in application to a new trade and in learning new life skills upon release”.
The Pentagon
The hearing
The hearing commenced about 9:04 and ended at about 9:25. Today’s video feed was fuzzier than in the past, and the audio was also lacking. The audio and visual had definitely been better at other Pentagon PRBs, in this same conference room.
Rabei’i sat at the head of a small white rectangular table that appeared to be in a Guantanamo Bay “trailer” (and not in a Guantanamo Bay courtroom). On the long side of the table to his left sat his personal representative in a U.S. military uniform. Directly across from her, to Rabei’i’s right, sat the linguist. Next to the linguist was the private counsel, sitting closest to the camera.
Throughout the 21 minute hearing, Rabei’i sat with his back rigidly straight, almost perfectly still, with his arms resting on the arms of the chair. He wore a white t-shirt with sleeves that barely covered his elbows. The screen was so fuzzy that it was unclear whether his narrow face sported a closely cropped beard, only a mustache, or no facial hair at all. The hair on his head was full, but not long. The very top of his head was not in the camera frame.
The personal representative and private counsel read their statements in English, and the English was interpreted by an off camera female voice.
Around 9:24, seconds before the hearing was set to end, just after his private counsel finished reading her remarks, Rabei’i began to move. He slowly picked up a sheet of paper or two and flipped it over, and did the same thing again with more paper.
A male off-camera voice called for a 15 minute recess. The Pentagon screens went blank when Guantanamo Bay cut our feed. The “public” session of the PRB was over. In 15 minutes they would commence the PRB’s classified portion which we were not permitted to attend.
The NGOs, the media, and our escort and technician left the secure room. The NGOs and media picked up our cameras and cell phones, and were escorted out of the Pentagon.
Faisel Sadat and I took the Metro from Virginia where the Pentagon is to DC. We are looking forward to two PRBs next week – Tuesday (Election Day) and Thursday). Thus far, Faisel is the only Indiana McKinney representative, besides me, to attend a PRB. Faisel has also attended several Guantanamo Bay Military Commission hearings at Ft. Meade, Maryland, that are also broadcast by CCTV from Guantanamo.
The PRBs are currently being conducted pursuant to President Obama’s Executive Order. There is speculation as to whether the next President will continue or abandon the PRB process.
By George Edwards,
Professor of Law, Indiana University McKinney School of Law
Faculty Director (Founding), Guantanamo Bay Periodic Review Board (PRB) Project
Faculty Director (Founding), U.S. Military Commission Observation Project
I was selected to travel to Ft. Meade, Maryland to monitor U.S. Military Commission pre-trial hearings broadcast live via CCTV from Guantanamo Bay, Cuba to a secure Ft. Meade facility. I represented the Indiana University McKinney School of Law’s Military Commission Observation Project, which has been sending faculty, staff, students, and graduates to Guantanamo Bay and Ft. Meade to monitor these war crimes proceedings. The case I was dispatched to monitor was against Abd al-Rahim Hussein Muhammed Abdu al-Nashiri, who is alleged to have masterminded the 2000 attack on the U.S.S. Cole that killed 17 U.S. sailors, and wounded dozens more, off the coast of Yemen. I observed the hearings on October 18th and 19th.
Arriving at Ft. Meade
I arrived at Ft. Meade on Tuesday morning, October, 18 2016, and went to the base Visitor Center to pick up my badge that would permit me to enter the base. I encountered a slight delay there, as they could not locate my badge. After about fifteen minutes, one of the employees found the badge in a file on the front reception desk. She informed the other employee that all of the badges for the hearings are kept in a folder at the reception desk.
Note: If you arrive at the Ft. Meade Visitor Center and they can’t find your badge, ask if it is inside a folder at the reception desk!
After they found my badge, they took my photograph and handed me a paper badge that would allow me access to Ft. Meade for two days. The receptionist told me to exit through the left side of the parking lot and to proceed to the vehicle inspection area. After a brisk inspection of the vehicle, I was on the base and easily found the McGill Training Center, where the hearing would simultaneously broadcast from Guantanamo Bay, Cuba.
Justin at Ft. Meade Commissary
I parked in an apartment parking lot that is located across the street from the McGill Training Center. I made my way into the building and to the door of the viewing room, which was like a medium-sized high school classroom. The video feed was already being broadcast and there were four observers in the room, along with a person who I understand was a contractor hired to oversee the process.
In the back of the room is a big chest with individual small lockers where you can store cell phones. Knowing that cell phones were not allowed to be used in the room, I had left my cell phone in the rental car.
The video was clear, and the sound quality was generally good. At times the video feed or sound would cut out briefly but it was not often and generally only lasted for a couple minutes. The room was very cold both days. I would suggest that anyone observing hearings at the McGill Training Center to dress in layers and bring a light jacket.
al Nashiri Hearing Observations
Military Uniforms
I noticed that the prosecution’s military counsel, namely Chief Prosecutor Mr. Martins, wore a highly decorated uniform compared to the less decorated uniform of the Detailed Defense Counsel, Ms. Pollio. I have some concern that a jury may be influenced, whether consciously or subconsciously, into believing that Mr. Martin is more credible or knowledgeable because he is more highly decorated than Ms. Pollio. Although a jury may always form some judgment of an attorney’s capability or credibility by their appearance, attorneys in civilian courts do not display their achievements and accomplishments on their clothing. al Nashiri may be prejudiced by the prosecution counsel appearing to be a higher ranked and more qualified military member.
Mr. Martin
Ms. Pollio
al Nashiri’s Presence in Court
al Nashiri was present for most of the court proceedings on October 18th and 19th.
al Nashiri
However, al Nashiri was absent for a little over an hour of the hearing on October 18th. On October 18th, the court took a brief recess and when the court returned al Nashiri was absent. Mr. Kammen, the defendant’s civilian attorney, informed the court that al Nashiri was not feeling well and that he was in a backroom that had a video feed of the court. al Nashiri’s counsel confirmed with the court that he voluntarily absented himself from the court proceedings.
The prosecution said that there was an issue with al Nashiri’s absence because there had been no in court waiver. Specifically, Mr. Martin asked the judge to bring al Nashiri back to the courtroom until there was an in court waiver. The judge said that he was comfortable with al Nashiri’s absence from the court because al Nashiri’s counsel, Mr. Kammen, had spoken with al Nashiri and the absence was going to be brief (approximately thirty minutes). The judge made a finding that al Nashiri voluntarily removed himself from the court proceedings. The hearing went for another thirty minutes or so and then the court took recess for lunch. After the lunch recess, Al Nashiri was back in the courtroom and the judge questioned him regarding his prior absence from the court. al Nashiri confirmed that he was previously not feeling well and that he had voluntarily left the proceedings.
I felt that the judge made great strides to ensure that the record clearly reflected al Nashiri’s absence being voluntary and uncoerced. However, I do feel that the process would be more transparent if the video feed showed al Nashiri more often. Because the video was generally either showing the lectern or the judge, al Nashiri was not seen on the video very often. I would estimate that over the course of the two days I was in Ft. Meade, I saw al Nashiri on the video feed for a total of approximately ten minutes. I would have preferred a split screen that showed whoever was speaking and also showed the defense table. I think the public would benefit from being able to see that al Nashiri was present and engaged in his trial.
I hope we are not arguing about parking spaces
During most of the October 18th and 19th hearings, the days were spent hearing arguments regarding the defense’s claim that the prosecution may have attempted to unlawfully influence the Court of Military Commissions Review (“CMCR”). The defense had filed a motion to compel the prosecution to release all ex parte communications. The prosecution had put together a binder of emails, which they voluntarily provided to the judge for him to perform an in-camera review. The prosecution claimed that the emails were administrative in nature and non-discoverable. The prosecution further claimed privilege and judicial privilege for the emails. The judge informed the parties that the only emails at issue were two email chains–-exhibits 355e tabs 3 and 10. The judge stated “wouldn’t it be better for the public trust to hand them to the defense.” The judge said that he was keeping the public trust in mind. Many times throughout the hearing the judge asked if this was really something they wanted to spend time arguing about. It appeared to me that that judge thought that the two emails chains were not something that the court should be spending two days hearing arguments about.
The defense’s position was that the emails must be relevant and important because the prosecution was fighting so hard to keep them out of the defense’s hands. The prosecution seemed to be arguing that it was more about principle and that they were not legally required to turn the emails over. In this respect it appeared that the prosecution was less concerned with the public’s interest in having an open hearing. Although, the prosecution did argue that it was better for the public’s trust in the proceedings to follow the law and not turn over emails that are not discoverable. Mr. Kammen retorted by stating that secrecy destroys the public’s confidence, especially in a court where the rules are constantly changing. Mr. Kammen closed the defense’s argument by saying that he hoped that they had not spent all day arguing about emails that were related to where the prosecution was supposed to park.
The judge granted the motion, but only as to exhibit 355e tabs 3 and 10. The judge stated that one tab is about parking and the other tab is an administrative discussion about who is going to do a security review. The remainder of the discovery request was not granted and will stay under seal in the record. The judge appeared to be annoyed that two days had been spent arguing over emails that were administrative and generally unimportant. The judge stated that the emails are not privileged and not discoverable. However, because the prosecution had voluntarily provided them to the judge for an in-camera review, he was obligated to make a decision on them.
After the decision, Mr. Martin basically stated that he did not think that the judge had the authority to order the government to turn over the emails. The judge retorted that he was confident that he had the authority. The judge informed Mr. Martin that he had made a decision and had the authority to do so. He told Mr. Martin that the court was about to take a recess for lunch and that Mr. Martin should turn the emails over to the defense during the recess. The judge also told the defense counsel to think about what remedy they would ask for in case the prosecution did not turn over the emails. After the court returned from lunch, the prosecution turned over the exhibits 355e tabs 3 and 10, although Mr. Martin continued to argue that he did not believe that the government was required to do so.
I understand the need to follow the law. In this case, considering that the prosecution had voluntarily provided the emails to the court, I think it was proper to release them. If the emails were not released, it would have seriously eroded my confidence that the emails were only administrative in nature. The prosecution fought very hard to keep the emails out of the defense’s hands, and it seemed to me that the emails likely contained ex parte communication that was not just administrative. I was somewhat surprised when Mr. Martin agreed to turn over the emails after the lunch recess. However, his doing so made me feel that the proceedings were more transparent and that the prosecution was not concealing unlawful ex parte communications.
Repeated Defense Counsel Complaints
Unlike an Article Three court, the defense cannot simply call anyway witnesses that they would like to question. Mr. Kammen repeatedly stated that the prosecution must approve of any witness that the defense wishes to call. If a person’s testimony was going to be severely adverse to the prosecution, it appears, according to Mr. Kammen’s argument, that the prosecution could deny the defense the opportunity to call that person as a witness. This seems very unfair and it would certainly hinder the defense counsel’s ability to properly defend al Nashiri. Additionally, the ability to keep relevant witnesses out of the courtroom significantly hurts the transparency of the proceedings. If the Commission wishes to have transparent proceedings, all relevant witnesses should be allowed to testify. This is the only way to ensure that the proceedings will result in a just outcome.
Another claim by the defense is that al Nashiri’s housing during the hearings is inadequate. The defense wants to call two witnesses, both are employees at Guantanamo Bay, but the prosecution is not allowing them to call the witnesses. At the same time, the prosecution is stating that the defense has the burden to prove the claim. al Nashiri’s defense counsel, Mr. Kammen, complained that it is unfair for him to have the burden to prove a claim but not have the ability to call the witnesses that he needs in order to prove the claim.
Conclusion
At the end of the day, I feel that the judge was working hard to get past some of the petty arguments raised by both sides. He came across as being very aware that the process needed to be as transparent as possible. However, the case does not appear to be close to actually going to trial yet. Considering that this case has been going on for 16 years, there has to be a way for the Commission to act more efficiently, while also serving justice in a fair and transparent manner.
For those who are interested in being an observer, I highly encourage you to apply. The IU McKinney Military Commission Observation Project is a unique opportunity and has been designed to get observers up to speed quickly. I found that the Guantanamo Bay Fair Trial Manual was very helpful for gaining an understanding of the proceedings and the background information necessary to understand the hearings.
Justin W. Jones, J.D. Candidate (2018)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University Robert H. McKinney School of Law
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pages) (29 December 2016)
What Hearings will I monitor?
