MCOP

Reporting from Guantanamo Bay:  Courtroom Clash and Hearing Delays

Reporting from Guantanamo Bay

I am a recent graduate of the Indiana University McKinney School of Law (IU McKinney) and I am representing the IU McKinney Military Commission Observation Project (MCOP).

I traveled to Guantanamo Bay, Cuba this weekend to monitor hearings in a U.S. military commission against an alleged high-level member of al-Qaeda who has been charged with war crimes.

My mission at Guantanamo is to attend, monitor, be seen, analyze, critique and report on the proceedings of the defendant, Mr. Nashwan al-Tamir / Abd Hadi al Iraqi (hereinafter “Nashwan / Hadi”).  More about the MCOP and Nashwan / Hadi may be read through my earlier blog posts found here.

Tuesday 25 September 2018 Hearing

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Me reviewing the Guantanamo Bay Fair Trial Manual – Excerpts before the day’s commission hearing.

Tuesday’s hearing (25 September 2018) began with testimony from an Assistant Staff Judge Advocate (ASJA) of the U.S. Navy.  The ASJA testified that he provided Nashwan / Hadi notice of his right to be present during Tuesday’s hearing in accordance with Judge Libretto’s orders during the hearing on Monday (24 September 2018).  The ASJA further testified that Nashwan / Hadi declined to be present for Tuesday’s hearing, and that Nashwan / Hadi expressed feeling “medically unable to appear”.

Following a short recess, prosecuting counsel (Mr. Vaughn Spencer) and defense counsel (Mr. Adam Thurschwell) presented oral arguments regarding whether or not the week’s remaining commission hearings should proceed in Nashwan’s / Hadi’s absence.

Thurschwell argued that Nashwan / Hadi could only waive his right to appear for Tuesday’s hearing after making his first hearing appearance during this week’s commission session.  As Nashwan / Hadi did not appear for the first hearing of this week’s commission session on Monday, Thurschwell argued that it would be erroneous to continue proceedings for the week absent a valid waiver of Nashwan’s / Hadi’s right to appear for those proceedings.

In other words, Thurschwell recalled the principle of express waiver as discussed under under the Rules of Military Commissions—R.M.C. 804(c).  In practice, this principle requires the military judge (Libretto) to require the defendant (Nashwan / Hadi) to appear for the first hearing of a new hearing session (the Monday 24 September 2018 hearing).  During that first hearing, the judge must inform the defendant of his rights, including the right to not be present at future hearings for the week.  On subsequent hearing days for the week, the defendant can waive his right to be present for any hearing day during the session, in which case the court requires the defendant to sign a formal waiver stating that he is voluntarily absenting himself.  Thurschwell applied this principle to the context of Tuesday’s hearing, and argued that the court did not properly follow the practice described above.

On the other hand, Spencer argued that the Senior Medical Officer (SMO) medically cleared Nashwan / Hadi to appear in court on Tuesday, and that Nashwan / Hadi had been adequately informed of Tuesday’s hearing.  Therefore, Spencer argued, Nashwan’s / Hadi’s failure to appear for Tuesday’s hearing was a voluntary refusal.  In other words, Spencer argued that Nashwan’s / Hadi’s absence constituted a voluntary absence as discussed under R.M.C. 804(c).

Judge Libretto ruled in line with the prosecution (Spencer), stating:

Central to the commission’s analysis is whether the accused’s refusal implicates the principle of express waiver or voluntary absence.  The two principles are distinct. Express waiver, to be valid, requires an accused to be fully informed of his right to attend and the consequences of foregoing that right.  Voluntary absence, on the other hand, has no such requirement.  The absence needs only be found to be voluntary. In order to be voluntary, the accused must have known of the scheduled proceeding and intentionally missed them.

As an initial matter, this commission finds that the circumstances presented by the accused’s refusal to attend the scheduled sessions thus far this week implicate the principle of voluntary absence, not express waiver, as argued extensively by the defense.

In reaching this conclusion, Libretto held that Nashwan / Hadi had been medically cleared to appear for Tuesday’s hearing, and that appropriate accommodations had been made to allow his appearance.  Libretto therefore deemed Nashwan’s / Hadi’s absence from this hearing to be intentional, and accordingly found “the accused’s absence from this session to be voluntary and that the accused will have forfeited his right to be present if he continues to refuse to attend”.

Libretto then ordered the commission to reconvene at 9:00 a.m. each remaining day this week, beginning on Wednesday (26 September 2018).  Libretto further ordered that Nashwan / Hadi be allowed opportunities to appear for each scheduled proceeding for the week.  Libretto declared that the commission would not proceed in Nashwan’s / Hadi’s absence on Wednesday or Thursday (27 September 2018).  However, Libretto explained that should Nashwan / Hadi not appear on Friday (28 September 2018), Nashwan / Hadi would be considered voluntarily absent from that hearing, and the hearing would then proceed in Nashwan’s / Hadi’s absence.

Tuesday’s hearing then recessed for the day at 1:15 p.m.

Note:  For those wishing to access the unofficial / unauthenticated transcript of the Tuesday 25 September 2018 commission hearing as published through the Office of Military Commissions (OMC) website, you may do so here.

Nashwan / Hadi Suffers Further Back Spasms Causing More Hearing Delays

Abd Hadi al Iraqi (Nashwan al Tamir)

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

Ms. Carol Rosenberg (whose twitter feed I have been monitoring for updates while at Guantanamo) tweeted on 3:01 p.m. Tuesday that Nashwan / Hadi suffered more severe back spasms sometime following the day’s earlier hearing.  She then explained that “Gitmo’s prison doctor” (presumably the Army SMO, but this remains unclear) revoked Nashwan’s / Hadi’s medical clearance to be transported from his cell.

Shortly afterward at 3:05 p.m., Ms. Rosenberg tweeted that Judge Libretto cancelled the hearing scheduled for Wednesday.  Around 9:00 p.m. that evening, I learned from an NGO escort that Judge Libretto similarly canceled the hearing scheduled for Thursday as well.  It remains unclear if the hearing scheduled for Friday will proceed should Nashwan / Hadi fail to appear.

Conclusion

Please stay tuned for further Guantanamo updates.

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

Voter Protection Legal Fellow
Indiana Democratic Party

Jacob.Irven@gmail.com

Reporting from Guantanamo Bay: Commission Hearing in Limbo

Reporting from Guantanamo Bay

I am a recent graduate of the Indiana University McKinney School of Law (IU McKinney) and I am a representative of the IU McKinney Military Commission Observation Project (MCOP).

I traveled to Guantanamo Bay, Cuba this weekend to monitor hearings in a U.S. military commission against an alleged high-level member of al-Qaeda who is charged with war crimes.

My mission at Guantanamo is to attend, monitor, be seen, analyze, critique and report on the proceedings of the defendant, Mr. Nashwan al-Tamir / Abd Hadi al Iraqi (hereinafter “Nashwan / Hadi”).  More about the MCOP and Nashwan / Hadi may be read through my earlier blog posts found here.

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

The Only Thing Constant in Guantanamo

Three fellow non-governmental organization (NGO) representatives join me this week in Guantanamo.

On Monday morning (24 September 2018), my fellow NGO representatives and I walked from our residence tents located in Camp Justice to the courthouse complex, about one hundred yards away.

I observed heavy equipment mobilizing around the courthouse complex as we walked.  While I presume this equipment is being employed pursuant to a series of multi-million dollar expansions proposed for Guantanamo under the Trump administration in 2018, I cannot say with certainty.

After passing through a series of security checks to gain entry into the courtroom site, we joined media representatives and military personnel in the Guantanamo courtroom viewing gallery where we would watch the proceedings.

I entered the gallery around 8:30 a.m. and observed a nearly-empty courtroom behind a double-paned glass wall separating the gallery from the well of the courtroom.  Only a few uniformed military personnel sat along the right-hand courtroom wall, while another conducted mic checks throughout.  I observed a 40-second delay between the live activities within the courtroom, the sound emitting from the gallery speakers, and the images displayed on five closed circuit televisions (CCTVs) mounted within the gallery.  I learned to expect this delay through the Know Before You Go To Guantanamo Bay guide, and have since been informed by one of my escorts that the delay seeks to ensure that classified information is not released into to the gallery, and in turn to the public at large.

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

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

My fellow NGO representatives and I remained near the court site as directed while we waited to receive further updates on the now delayed proceedings.  By 12:00 p.m. (noon), we had yet to hear anything, and I became restless.  Clamoring for news, I fruitlessly searched through various web resources, including the Office of Military Commissions (OMC) website, and the Miami Herald, which commonly features articles published by Ms. Carol Rosenberg.  Ms. Rosenberg is an award-winning and widely-published reporter of Guantanamo happenings, and was among the media representatives present with me in the courtroom gallery when the delay was announced.

At 2:30 p.m., our escorts received notice that the hearings would continue, and that we should immediately return to the courtroom gallery.  However, upon our return, we discovered that proceedings were yet again delayed, this time until 4:00 p.m.

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

Commission Hearing Resumes

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

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

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

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

Abd Hadi al Iraqi (Nashwan al Tamir)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Pleased stay tuned for future updates.

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Me working in the NGO Center located near Camp Justice.

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

Voter Protection Legal Fellow
Indiana Democratic Party

Jacob.Irven@gmail.com

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

Nominated for Travel

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

Abd Hadi al Iraqi (Nashwan al Tamir)

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

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

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

Previous Nomination

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

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

Background and Interest in Observing

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Me speaking during the Program in International Human Rights Law 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.

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

Preparing to Observe

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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

Final Mission to Guantanamo Bay as Law Student

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.

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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.

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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.

 

Ben Hicks

3rd Year Student

Indiana University McKinney School of Law

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

Nominated for Travel

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

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

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, and has been the subject of criminal trial proceedings there since 2014.

Background and Interest in Observing

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

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

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.

Preparing to Observe

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

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

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

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

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

Please stay tuned for future posts.

Jacob Irven (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Reflections on my Previous Guantanamo Observation Trip

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

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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

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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

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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

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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

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

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

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

 

Jessica Ayer (J.D. Candidate, ’19)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Traveling to Guantanamo Bay, Cuba

I am currently sitting at Joint Base Andrews in Maryland waiting to board the commercial aircraft carrier that will take me, along with four other NGO observers, to Guantanamo Bay, Cuba. While at Guantanamo, I will have the opportunity to attend, observe (and be observed), analyze, critique, and report on the al Nashiri military commission proceedings on behalf of the Military Commission Observation Project (MCOP) through Indiana University McKinney School of Law. 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.

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Sunrise while waiting for the flight at Joint Base Andrews.

On Friday 10 November I drove from Indianapolis, Indiana, where I am a current second-year student at Indiana University McKinney School of Law, to the Washington, DC area. On the morning of 11 November, I drove to the Air Passenger Terminal at Joint Base Andrews.

After I arrived at the terminal, I met up with the other NGO observers, and handed out copies of the Guantanamo Bay Fair Trial Manual and the Know Before You Go: Guantanamo Bay, both of which are produced by the Indiana University McKinney School of Law Program in International Human Rights Law. The other NGOs are representatives from: the American Bar Association, Seton Hall University School of Law, the Pacific Council on International Policy, and the Georgetown University Law Center.

The flight is scheduled to take approximately three and a half hours. For now, though, I am ready to board the flight and am excited for the week ahead!

 

Jessica Ayer (J.D. Candidate, ’19)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

My Scheduled Trip to Monitor Military Commissions at Guantanamo Bay, Cuba

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

USS Cole

Damage to the USS Cole.  Picture from CNN.

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

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)

Program in International Human Rights Law

Indiana University McKinney School of Law

Possible Return Trip to Guantanamo Bay, Cuba from 30 September to 7 October 2017

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.

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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.

Current filings/where the case stands 

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Guantánamo prisoner Abd al Hadi al Iraqi, who says his true name is Nashwan al Tamir, poses for the International Committee of the Red Cross in a 2014 photo taken for his family, and provided by his attorneys.
Read more here: http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article173566786.html#storylink=cpy

 

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.

 

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Observers representing various organizations posing in front of our sleeping quarters in January 2017 at Camp Justice in Guantanamo Bay, Cuba.

Sheila Willard, J.D. Candidate

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Yemeni Guantanamo Detainee to Ask Pentagon to Release Him

 

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al Sharqawi to ask Pentagon on Tuesday to release him from Guantanamo Bay after 15 years in custody 

On Tuesday, 28 February 2017, Abdu Ali al Haji Sharqawi, who is a Guantanamo Bay detainee from Yemen, will appear at a hearing at which he will likely tell U.S. officials that he is not a threat to U.S. national security and that he should be resettled in a 3rd country.

Sharqawi, who is 43 years of age, was picked up in Karachi, Pakistan in February 2002, one month after the first detainees were brought to Guantanamo Bay. He arrived in Guantanamo Bay in 2004, after 3 years in custody under the direction of the U.S., first in Jordan then Afghanistan. It is alleged that he was tortured in Jordan and Afghanistan.

On Tuesday he will argue for his freedom from the incarceration he has endured for almost a third of his life.

The hearing – a Periodic Review Board – PRB

This hearing at which Sharqawi 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.

The Board itself consists 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.

pentagonThe hearing will be held at Guantanamo Bay, but will be transmitted by CCTV to secure locations to permit review by participants and cleared persons who are not physically in the Guantanamo Bay hearing room. I plan to view from a secure room in the Pentagon.

Sharqawi’s PRB hearings

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 that the detainee developed ties to senior al-Qaida leaders such as Usama Bin Laden and Khalid Shaykh Muhammad, associated with al-Qaida plotters and operatives including members of the USS Cole bombing and some of the 9111 hijackers, and probably provided logistical and financial support for al-Qaida operations to include facilitating the travel of fighters from Yemen. Further, the Board noted that the detainee’s statements and behavior while in detention indicate that he remains committed to engaging in violent acts against the United States, the difficulty in assessing his current mindset and credibility due to his decision to not participate in the hearing, and insufficient information presented to the Board regarding his plans if transferred and the support that he would have if transferred.

The Board appreciates that the detainee has engaged with his representatives to participate in the process. The Board looks forward to reviewing the detainee’s file in six months and encourages the detainee to fully participate in any future review.

Sharqawi was entitled to appear at his initial PRB last year and to speak on his own behalf. However, he did not appear, and the Board posted this notice on the PRB secretariat’s website:

“THE DETAINEE CHOSE NOT TO APPEAR BEFORE THE BOARD. THEREFORE, THE DETAINEE SESSION WAS NOT REQUIRED.”

  • File Review. Sharqawi had a PRB file review on 15 November 2016, and on 14 April 2016 the Board concluded:

MEMORANDUM FOR THE RECORD

SUBJECT: Periodic Review Board File Review  Sharqawi Abd u Ali al-Hajj (YM-1457)

On I November 2016, the PRB conducted a file review for Sharqawi Abd u Ali al-Hajj (YM- 1457) 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 14 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 i n accordance with section 3(c) of E.O. 13567. [emphasis added]

  • Full Review. It is Sharqawi’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 send him to a 3rd country – outside the U.S. but not Yemen – for resettlement. The U.S. is not now sending detainees back to Yemen for security reasons.

What will Sharqawi’s PRB be like?

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 second PRB to be held under the Trump Administration, and the first of these, two weeks ago, attracted more NGOs and media than most earlier PRBs. The NGOs and media representatives will view from a secure room at the Pentagon.

Others present for the hearing will include members of the “Board” itself that conducts the PRBs. 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.

 Statements to be made at the PRB

The initial part of the PRB will be unclassified, and that is the portion of the PRB 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.

The Pentagon posted 3 statements to be read at Tuesday’s PRB’s public session:

  1. an Unclassified Summary prepared by the Government;
  2. a Statement by Sharqawi’s private outside lawyer; and
  3. a Statement by Sharqawi’s U.S. government-appointed non-lawyer “personal representative. The bodies of these three short statements are reproduced below.

The Unclassified Summary prepared by the U.S. Government to present at the PRB states, in full:

Sharqawi Abdu Ali al-Hajj (YM-1457), a.k.a. Riyadh, is a career jihadist who acted as a prominent financial and travel facilitator for al -Qa’ida and was closely tied to several senior al -Qa’ida members, including Usama Bin Ladin and Khalid Shaykh Muhammad (KU-10024), although he has repeatedly denied being an al-Qa’ida member. During his detention at Guantanamo, Riyadh has been semicompliant with the guard force and, until late 2004, provided his interrogators with a wealth of information on his extremist activities and associations. Riyadh remains a steadfast supporter of extremist causes and groups, most likely continues to view America as his enemy, and has praised recent acts of terrorism. There are no indications that Riyadh’s Yemen-based family members have engaged in extremist activities, although connections to extremist networks could offer Riyadh a potential path to reengagement in Yemen.

The private counsel for submitted a statement that provides, in full:

Members of the Periodic Review Board:

Good morning.  My name is Pardiss Kebriaei, and I am Private Counsel for Sharqawi Al Hajj.

Thank you for the opportunity for Mr. Al Haij’s subsequent full review. We are encouraged that the Periodic Review Board has been continuing its work.  The board’s purpose of whether continued detention is still necessary is vital for men like Mr. Al Hajj, who has been held in U.S. custody for over 15 years.

I am currently a Senior Attorney at the Center for Constitutional Rights, which has represented Guantanamo detainees since 2002, including dozens of men whom the United States, under the Bush and Obama administrations, has successfully repatriated or resettled.  I have represented detainees for nearly ten years.  I have represented Mr. Al Hajj since last year.

I’ll make a few brief points about the past, present and future with respect to Mr. Al Hajj.

With respect to the past: In Mr. Al Hajj’s habeas proceedings, the government’s case-in-chief relied on statements Mr. Al Hajj made during several interrogations in Bagram and Guantanamo in 2004.  To the extent the board is considering any of this information as part of this review, it should know that then-Chief Judge Royce Lamberth of the D.C. District Court struck all of these statements as unreliable; he found that they were tainted by prior physical and psychological coercion Mr. Al Hajj experienced in prisons in Jordan and Kabul after his capture.  Mr. Al Hajj is here to answer your questions about his present views and conduct, and his future intentions, but this point about the past bears noting.

With respect to the present: Mr. Al Hajj is 43 years old today.  The impulses and views that led to his detention were by a young man in his 20s.  The government’s unclassified profile of Mr. Al Hajj states that he ”most likely continues to view America as his enemy.” That description is outdated.  Mr. Al Hajj’s detention has necessarily entailed interactions with Americans of different stripes over the years that have complicated and changed his view. Blanket statements no longer apply.

Moreover, Mr. Al Hajj’s health may be seriously compromised.  He reports bouts of jaundice and weakness which, according to independent physicians with whom his counsel have consulted, may indicate a potentially grave liver condition that should be investigated.  A medical expert opinion is included in Mr. Al Hajj’s detainee submission.  Far from having the desire or energy for any involvement in conflict, the hardship of the past 15 years makes him want to tum away.

Finally, with respect to the future: Mr. Al Hajj would accept resettlement in any safe country the government believes appropriate.  His family stands ready and able to provide financial and moral support for his reintegration wherever that may be, as they have stated in the detainee submission.  My organization, which has worked closely with envoys from the Defense and State Departments on detainee transfers in prior years, also stands ready to assist.

Sharqawi’s “personal representative”, who is a non-lawyer appointed by the U.S. military, submitted a statement that provides, in full:

Members of the board, thank for allowing Mr. Sharqawi Abdu Ali Al-Hajj to have a second chance at hearing his case. I am his Personal Representative. He made the decision to not attend his first board because he did not feel confident sitting before the board without a Private Counsel. At that time, he still feared that the Board was a legal proceeding versus an administrative board and therefore, he did not want to attend without having his lawyer present.

But, since that time, he has attended every meeting with me and been very cordial. He is easy to get along with and is obviously a very intelligent person, who communicates well. He has worked well with both a female Personal Representative and Private Counsel.

Since Sharqawi has moved camps, he has worked to build his relationships with fellow detainees. During our conversations, he has indicated that since he has been here, he has learned to appreciate other people’s cultures which he had not before. He is actively participating in classes to prepare for life after Guantanamo and he speaks English quite well. His Private Counsel has been in contact with his family to confirm that they will support him after his departure from GTMO. He is open to repatriation anywhere and feels he is capable of working in other cultures since he has learned to work with other detainees in GTMO.

I appreciate your consideration of his case today as he answers your questions so you can decide if he still poses a threat to the U.S.

 Conclusion

So far as we can tell, Sharqawi’s PRB is still scheduled to go forward on Tuesday, 28 February 2017. That is, the Pentagon has not notified us that it will not go forward. If it does go forward, it seems likely that Sharqawi will attend, which he did not do for his initial PRB last year.

Please watch this space for an update post-PRB.

George Edwards

Founder, Periodic Review Board (PRB) Project

Guantanamo Bay, Cuba U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law (PIHRL)

Indiana University McKinney School of Law

_______

 

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

bp-picFrom 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.

ksm-picWhat 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?!?

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At this time my focus has turned to the nuts and bolts of traveling from Indianapolis to Cuba.  Easy right?  Yeah… I plan to fly to Washington, DC then snag a Lyft and drive to a hotel near Andrews Air Force Base in Maryland, which is around a thirty-minute trip.  I will stay overnight there, in anticipation of my morning flight from Andrews in a military airplane directly to Guantanamo Bay, Cuba.

While at Guantanamo Bay, among other duties, I plan to provide updates via this blog site.

I hope to offer unique insights contributions to the existing body of work relating to legal proceedings, policies, and guidelines. I see this as an occasion to provide transparency from an “on the ground” perspective.  Very few have had the chance to travel to Gitmo to monitor military commission proceedings; I intend to make the most of this opportunity, for the benefit of all concerned.

Duties and Responsibilities

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

FT Manual

This Manual is the product of the hard work performed by Professor George Edwards and other student and legal partners who have been observing at Gitmo for years.  It provides many of the policies and procedures that govern the treatment of detainees and the trial and legal proceedings.  It is an objective and independent document that is used by observers from other institutions and others as they form their own judgments as to whether Guantanamo Bay stakeholders are being afforded all rights and interests they are owed.

I feel it an honor to be able to observe and contribute to this important document.

I am proud to be an Indiana McKinney School of Law alum, and thankful for the opportunity provided by the MCOP and the Program in International Human Rights Law.

Brent M. Pierce, J.D. ’10

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

Program in International Human Rights Law

Indiana University McKinney School of Law

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

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I travelled to Ft. Meade, MD to monitor a US Military Commission in the case of Al Nashiri, as I was representing the Military Commission Observation Project, of the Program in International Human Rights Law. The following are a few charges brought by the government:  Murder in Violation of the Law of War and Attempted Murder in violation of the Law of War.  al Nashiri is the alleged mastermind for the bombing of the USS Cole and other maritime attacks.

Indianapolis to Ft. Meade:

I chose to view the al Nashiri hearings at Ft. Meade during the week of 12/12/2016 and view via CCTV.  I flew United Airlines from Indianapolis to Dulles Airport on Sunday, 12/11/2016, where I rented a car and drove an hour to Laurel, Maryland.  I stayed at the Days Inn in Laurel, which is fifteen minutes (7 miles) from Ft. Meade. The hotel rates were lower in the area, so I did not mind a 15 minute drive, which is easy to navigate during rush hour.

Arrival to Visitors Center at Ft. Meade:

The hearings were originally scheduled to being at 9:00 AM on Monday, but I learned via email from Prof. Edwards, that the hearings would be delayed for two hours.  It was recommended that I arrive at Ft. Meade’s visitors center two hours before the start time of the hearing, so I arrived at 9:00 A.M., so that I could pick up my Ft. Mead Badge to permit entry to the base each day.  I went to the Ft. Meade Visitors Center to pickup my badge, I had two show two pieces of ID for them to Issue my Ft. Meade Credential and an easy process (since I had a background check completed through my the Observation Project prior to travel).  The line was short at 9AM, but it should be expected for there to be longer lines at 7AM, since that is the time the Visitors Centers open and anyone visiting the base would need to obtain credential prior to entering.  I drove through an inspection point, the entry point is directly behind the Visitors Center, which was an easy process.  The guards request to see a form of ID with the permit that was obtained at the Visitors Center.  The guards will randomly search vehicles, follow instructions of the guards and all will go smoothly.  If you are driving a personal vehicle, the guards may request to see insurance paperwork with your credentials and ID.  I was driving a rental guard, so I provided the proof of insurance that was purchased through the rental car agency.  Federal Law requires that all vehicles have updated insurance coverage when on base.

Observation Day 1

The al Nashiri hearings were broadcast by CCTV into a classroom at Ft. Meade’s McGill training center.  When you arrive at the training center, be prepared for security to do a quick wanding, then lock up your cell phone in a small locker in the classroom.  It is advisable to leave other devices and laptops in your hotel room or the trunk of your vehicle.

I attended three days of hearings, and each day there was only one other person in the room.  That person was responsible for ensuring all phones were stored in the lockers.  One the large screen in the font of the classroom, I could see different views of the courtroom at different times.  The camera seemed to be pointed at the person who was speaking at the time, whether it was Judge Spath (the military judge), the prosecution or defense lawyers, or the Defendant al Nashiri himself.

At the beginning of the Day 1 hearings, Judge Spath advised al Nashiri that he had the right to be present for all hearings, if he chose not to attend it would not have impact on decision-making regarding rulings to motions.  al Nashiri nodded and waved to the judge suggesting that he understood these rights.  al Nashiri also waived his right to have the court stop proceedings for specified times throughout the day for prayers.

Whenever I saw al Nashiri, he was sitting in a chair at the far end of the defense table, facing the court. He wore a white flowing shirt, but I was told later that he would wear the suit jacket of his interpreter, who was seated next to him throughout the hearing.  Al Nashiri’s hands and legs did not appear to be cuffed, and I was told later that he was not cuffed.  I could not see guards on the screen, though I was told that at all times there were at least four or five guards within several feet of al Nashiri at all times, though the guards were  not visible to me.  As mentioned, an interpreter was visible sitting beside al Nashiri and both wore headsets during the proceedings.

The defense called former assistant deputy of the Convening Authority. Edward Sherran to testify. The questioning by the defense focused on his role as assistant deputy and those of the advisors within the Convening Authority.  The defense also called Lt. Col. Lewis, again to offer insight to actions of the Convening Authority at the time Gill was the only advisor that was qualified to work on the Al Nashiri case.

Day 2:

Day 2 focused on a host of motions.  The first motion was by the defense, which was to compel witnesses to support the defense claim of the Convening Authority’s unlawful influence.  The defense would like to compel three former Convening Authority personnel to testify – Gill, Tull and former deputy Quinn.  The defense claims testimony is necessary, as the government continues to not respond with items requested in discovery motions.

The hearings then moved towards what is referenced as the “Kuwaiti Files”.  The defense requests intelligence relating to the drone strikes of Al Fahdi, as there is knowledge that there was a connection between Al Fahdi and al Nashiri.  The defense argued that the fact the Department of the Treasury placed Al Fahdi on a watch list for his role in the Linberg attack is evidence that there is a connection between al Nashiri and Al Fahdi, and that the evidence is relevant and necessary to a robust, effect defense of al Nashiri.  The defense claims that only 20 pages has been handed over by the government, that this is insufficient and that definitely more intelligence must be available, since the U.S. would not have killed Al Fahdi in a drone strike based on 20 pages of documents. The defense argued that the motion to compel government agencies to provide evidence is necessary, as the agencies have not been forthcoming.

The court discussed that the al Nashiri case has been in the discovery phase for five years, that it is necessary to move forward in a timely manner.  The remainder of the Tuesday hearing focused on the defense arguing that there would be a violation of Brady and Giglio rulings, which could lead the defense to request a mistrial.  Judge Spath stated the Brady and Giglio arguments are available during the appeal process, not during the discovery phase.  The defense then argued that the court should still grant the motion to compel, to ensure that a record is established and that a record is necessary for the appeals court to consider post-trial.

After a lunch recess, the afternoon hearings focused on “505” matters, which meant that there were classified hearings that were closed to the public.  It became clear that Friday hearings would also be classified and closed to the public.

On Tuesday, at lunch, I found the Ft. Meade food court, that offered several food options, including – Burger King, Boston Market, Philly Steaks, and Starbucks.

Day3:

Day 3, Wednesday morning hearings, were again open to the public and the Afternoon hearings were closed to cover classified matters.

In the morning, the defense raised additional motions to compel the CIA to provide information, especially relating to Black Site interrogations.  The CIA claimed that tapes, containing footage of al Nashiri being exposed to enhanced interrogation techniques and these tapes were important for an adequate defense.  The defense cited four other witnesses that should also be called to testify; these witnesses would provide information to the black site interrogations.  One witness identified was Mitchell, who recently released a book relating to the Black Site operations.

The morning hearing was shorter than the first two days, but it was full of defense arguments as to why government agencies should be compelled to provide evidence, while the prosecution arguments that evidence relevant to the case has always been provided.

Conclusion:

It was fascinating to observe arguments presented by both the defense and prosecution, especially in a case that has been in the discovery phase for five years.  I was able to understand the motions in the proceedings, as I  reviewed the case summary that is available on the Observation Project’s website and the government web site, which provides transcripts and motion history/rulings.  I learned a great deal about the matter regarding enhanced interrogation techniques, which is relevant to the defense of al Nashiri and I am curious as to how the court will approach this matter. Will the court compel a witness, like Mitchell, to testify?

I look forward to the opportunity of attending more hearings in the future, as being a student in the Masters of Jurisprudence program, it was relatively easy to understand the flow of the hearings and fascinating to how a court of law is operating in Guantanamo.

Heather Wilhelmus, MJ Student,

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

Program in International Human Rights Law

Indiana University McKinney School of Law

 

 

Preparing for my mission to Guantanamo Bay, Cuba

I was nominated by the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law and confirmed by the Pentagon to travel to Guantanamo Bay, Cuba to monitor military commission hearings in the case against Abd al Hadi al Iraqi, who has requested to be called Nashwan al Tamir, from 9 – 14 January 2017.  Hadi is an alleged senior member of al-Qaeda responsible for war crimes.

My earlier monitoring at Ft. Meade 

Last month I traveled to Ft. Meade, Maryland to monitor military commission hearings in the Guantanamo case against the 5 alleged masterminds of he 9/11 attack on the World Trade Center and Pentagon. The hearings were held at Guantanamo, but broadcast live into a secure facility at Ft. Meade.

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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!

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Indiana -> Andrews Air Force Base -> Guantanamo Bay, Cuba

Paperwork

The nomination to travel to Guantanamo arrived in the middle of law school finals, but I was determined to see the requirements through.

The Pentagon sent me an e-mail containing 4 documents to complete and return in just a couple of days.  The documents required by the Pentagon are 1) Hold Harmless Agreement, 2) Invitational Travel Worksheet, 3) Navy Base Access Pass Registration, and 4) NGO Ground Rules, along with a biography and picture.

I completed the paperwork using templates provided by Professor Edwards, since lawyers and Administrators at Indiana University have specific requirements as to how Indiana University affiliates must complete the paperwork.

I submitted my completed draft paperwork to Professor Edwards who sent it back to me once for revisions.  I believe that he wanted to make certain that the completed paperwork met Indiana University requirements so that Indiana officials would endorse the paperwork, and he wanted to make certain that the paperwork met the Pentagon’s standards.  The Pentagon has rejected paperwork that was not completed properly, so a second pair of eyes was necessary to make certain I was sending accurate, completed paperwork.

Professor Edwards tracked the documents through the appropriate IU channels for approval.  Once I received the stamped endorsed documents from IU, I forwarded these to my Pentagon contact, who quickly approved them the same day. 

Preparation: The Game Plan

As I prepare for the holidays with my family visiting from Argentina and Texas, I am also preparing for my mission to Guantanamo. I am paying careful attention to a 76-page document titled “What Human Rights Non-Governmental Organization (NGO) Observers and Others May Want to Know Before Traveling to Guantanamo Bay, Cuba”. The guide may be downloaded by visiting this link (includes 76 pages, 2 Appendices).  This document, of which Professor George Edwards is the principal author, provides all of the information necessary to successfully prepare for and complete a mission to Guantanamo.  Without this guide, preparing for my mission would be near impossible.  I have communicated with previous IU McKinney observers Justin Jones and Aline Fagundes, but having a script to fill in the rest of the details that one may forget has been invaluable in my preparation.

[The Know Before You Go  guide (76 pages, 2 Appendices) may be found as a standalone document, or, it is included in the Excerpts (158 pages, Know Before You Go starts on page 75 of the Excerpts), which is a digest of the full and complete Manual (over 500 pages).]

I have also been reading other people’s accounts of travel to Cuba on the Gitmo Observer blog (Justin Jones’ and Aline Fagundes’ account of their mission to Guantanamo), and will continue reading where I left off from my trip to Fort Meade, Maryland in October, where I observed the hearings in the case against Khalid Shaik Mohammed.

I will also begin to prepare my travel arrangements to Andrews Air Force Base in Maryland, where I will depart to Guantanamo Bay.

Sheila Willard (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Our 2-day delayed flight to Guantanamo Bay’s War Crime Court

A few weeks ago I was confirmed as an NGO Observer to monitor the hearings in the 9/11 case at Guantanamo Bay (click here to see my previous posts). It was finally the day to fly from Indianapolis, where I currently live, to Washington DC, where I would catch a military flight at Andrews Air Force Base to take me to Guantanamo Bay. The flight from Andrews to Guantanamo Bay was scheduled for Saturday, October 8, morning, and I was supposed to be at Andrews at 5:30 am.

I was at Atlanta Airport, half way to DC, when I opened my emails and received this message, sent Friday, October 7, at 4:42 pm:

“There has been a change in the flight schedule and you will all now be flying down on island on Monday at 1000. Unfortunately, the number of passengers for tomorrow’s flight exceeded the number of seats available on the aircraft (primarily due to additional personnel that needed to fly down to assess the infrastructure post-storm).”

I was already on my way, so I had to book two extra nights at the DC hotel, and spend the whole weekend in DC.

On Saturday, October 8, Carol Rosenberg (link), a Miami Herald correspondent and one of the passengers of our original Saturday morning flight – that was taking judges, defense councils, prosecution, interpreters, victims and family members, media and others to Guantanamo – tweeted she had to leave the airplane and was not able to go to Guantanamo Bay that day. Apparently information was circulated that the issue was the overweight of the aircraft and the Pentagon needed to solve it to be able to fly around the Hurricane Mathew.

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Until that moment, it appears that those on this plane thought only the NGO Observers would be left behind in DC for 2 days. As it turns out, media may have been bumped out the plane, but media’s luggage stayed on board. How would that help effectively resolve overweight issues?

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Carol Rosenberg then reported that she noticed the IT support techies were likewise bumped from the flight.

 

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(see more here)

So, I am thinking what kind of additional personnel instead of NGO Observers and media needed to fly down to assess the infrastructure post-storm, if IT techies were not essential.

The transparency we are pursuing seems to be blurred.

 

Aline Fagundes (LL.M. Candidate, ’17)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

 

All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.

The NGO’s Flight to Guantanamo Bay is Postponed for 2 days

“There has been a change in the flight schedule, and you will all now be flying down on island on Monday at 10:00.”

I received this message from the Pentagon when I was at the Atlanta Airport yesterday (Friday), on the way from Indianapolis to Andrews Air Force Base near Washington DC.

I am an observer from Indiana University McKinney School of Law’s Program in International Human Rights Law, confirmed to attend and monitor hearings at Guantanamo Bay from 11 to 14 October, 2016 (please read my previous posts here). The hearings are in the case against Khalid Shaik Mohammad and 4 other defendants who allegedly masterminded the 9/11 attacks on the World Trade Center and the Pentagon.

The flight to Guantanamo was originally scheduled to depart from DC on Saturday, October 8, and I was supposed to be at the Joint Base Andrews Terminal at 5:30 am.

We were informed, “the number of passengers for tomorrow’s flight exceeded the number of seats available on the aircraft (primarily due to additional personnel that needed to fly down to assess the infrastructure post-storm).”

 

My role as NGO Observer in the 9/11 case

I would have to spend 3 nights in DC before flying to Cuba, and the other 11 NGOs and I would miss almost 3 days of observation. This delay undermines part of my job as a monitor, since the whole purpose of this mission in not solely to watch the hearings. For instance, we will be missing a gathering on Sunday we were invited to by one of the defense teams, miss opportunities to meet with other defense counsel and media, miss possibly meeting the prosecution, and miss other valuable interactions. As observers, our responsibilities include to attend, observe, analyze, critique and report on the Military Commissions. The observer’s job begins at the moment of the confirmation to attend the hearings, and includes paying attention to communications with the Pentagon, defense counsel, and other NGOs, and otherwise observing and interacting with other stakeholders.

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Rather than being at Guantanamo and meeting with defense counsels, other NGO’s, media and observing the situation on the ground, I am stuck in a hotel, near Washington DC.

 

I just learned on Twitter that there may have been issues about the media and their equipment on the plane this morning (Saturday). I will monitor and report about it later. See @GitmoWatch, @carolrosenberg and @GitmoObserver.

 

Aline Fagundes (LL.M. Candidate, ’17)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

 

All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.

Preparing to Travel to Guantanamo Bay

 

Since the Pentagon has authorized me to be an MCOP Observer (click here), I have been involved with preparing my travel to Guantanamo Bay. In this case, preparing means concrete steps and psychological preparation.

Hurricane Matthew

To add more emotion to all ongoings, the hurricane Matthew crossed that area. Around 700 people and 65 pets were evacuated from the U.S. Naval Base in Cuba. The hurricane is heading the east coast of the United States, so we are following the weather forecast to see if the flight from Andrews Air Force Base will be able to depart on Saturday to Guantanamo Bay.

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Hurricane Matthew path on Tuesday, October 4, 2016.

 

A lot to do before

While the travel is confirmed, I have to keep working on my project. Besides studying the Manual, many, many forms needed to be filled.

The first set of forms is from the Pentagon. It consists of Ground Rules, Invitational Traveler Worksheet, Release, Indemnification and Hold Harmless Agreement, and ID Card/Base Pass Registration. After we fill this set, it has to be submitted to IU Lawyers, who need to approve it before we send back to the Pentagon. Sure, it all also pass through IU McKinney PIHRL, by the personal and close assistance of Professor George Edwards, who has a large experience in this process and always have a sharp look to avoid any minimal mistakes. There is one form from PIHRL, which is basically an agreement including obligations for each participant. This form serves as a basic but good guidance to MCOP Observers, once we have to share all we see, writing this blog, updating the Manual, posting information and working as the eyes and the ears of the outside world.

The third set of forms comes from the Office of International Affairs Study Abroad of IUPUI, and it is split into two phases. The first step, mostly related to data (passport, address, ID etc.), has around half dozen forms all online, and once it is approved it opens the second online phase with thirteen forms. The purpose of those forms are safety, including travel registration, health insurance, medical information, housing information, emergency contacts, and rules about what you can or cannot do abroad.

 

To be a good observer

But as I mentioned before, the preparation involves study the Manual. I can say it is the most important and helpful thing to do. The Manual helps the Observer to improve its role. A long time ago, I heard from a professor that “if you do not know what you are looking for, when you find it you may not realize.” Well, this is entirely true, and the Manual will not let you miss anything.

manualThe main purpose of the MCOP is to pursue a fair trial. A right to a fair trial has many perspectives, and I would say the most important task is to be able to be aware of the rights of all stakeholders.

The hearing I am about to attend is related to the September 11 Attack on the World Trade Center and the Pentagon. The whole world was shocked after that episode. For sure many people might be thinking of why an NGO is worried in ensuring any rights to someone who committed such a horrible crime? Many reasons. For instance, the NGO Gitmo Observer is not interested solely in the defendant’s rights, but also the rights of the victims and their families, the prosecution, the witnesses, the media, men and women who guard the detainees, and the domestic U.S. and international communities. Also, the rights of the defendants, ultimately, belong to everybody, because everybody can be suited and need to be sure a fair trial will be perceived, especially to be able to prove its innocence, or if not innocent, to be punished proportionally to what have been done.

 

Psychological Preparation

Finally, there is the psychological preparation. My eyes cannot blink. This is a unique opportunity. The biggest challenge is to avoid any bias, preconception, prejudice, prejudgment. I will have to keep my mind open to absorb as much as I can, and then start to settle it to be able to analyze what I saw. Being myself a judge it is unavoidable to compare what I do to what the U.S. Military Commission does, and maybe it can be useful, for me or others.

And this is all about to start. In two days, if the Hurricane Matthew allows me, I will be flying to Washington DC and, then, to Guantanamo Bay.

Next post will be the first in transit or the first after cancellation.

Wish me luck!

 

Aline Fagundes (LL.M. Candidate, ’17)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

 

All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.

From Brazil to Guantanamo Bay, Cuba – Monitoring Military Commissions through the Eyes of a Judge

“Aline, we nominated you for the 9/11 week to travel to Guantanamo Bay to monitor hearings.”

This was the first sentence I had read on the morning of August 25, around 6 am, when, still in bed, I opened my mailbox on my phone. I could barely hold my excitement! The first step was given!

Well, let me start from the beginning…

My name is Aline Fagundes, I was born in Oakland, California, but I was raised in Brazil, where I received my first degree in law in 1993, from the Pontifical Catholic University of Rio Grande do Sul, in Porto Alegre. From 1993 to 2005 I worked as a trial attorney, and on September 23, 2005 I became a judge in the Labor Court.

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In 2015 I applied for IU McKinney Master of Laws Program in Human Rights, certainly one of the best steps of my academic and professional life. Through the program I was introduced to a great variety of opportunities, all of them incredibly well supported by the Law School. For instance, I attended an externship at the Indiana Supreme Court, where I improved in networking, state matters and law, also made friends for life. The most recent activity I engaged is the Military Commission Observation Project (MCOP).

MCOP was established by IU McKinney Program in International Human Rights Law (PIHRL), once it was granted “NGO Observer Status” by The Pentagon’s Guantanamo Bay Convening Authority. Through MCOP, IU McKinney Affiliates can be selected to attend, observe, analyze and critique and report on hearings of the Guantanamo Bay detainees charged with war crimes. IU Affiliates can either travel to Guantanamo to observe in person, or monitor the proceedings from Ft. Meade, Maryland military base via secure video-link.

The selection process includes being nominated by the MCOP Advisory Council and having your name submitted to the Pentagon, who in last instance may grant or not the authorization to be an observer. In my case, I was nominated on August 24, 2016, and on September 9, just two days before the 15th anniversary of the September 11 Attack on the World Trade Center, I received this message from the Pentagon:

“You have been CONFIRMED to observe the 11-14 Oct military commission in-person at Guantanamo Bay, Cuba. We are currently scheduled to depart Andrews Air Force Base at 1000 on Saturday, Oct 8, 2016, and will return on Saturday, Oct 15, 2016, around 1330.”

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Khalid Shaik Mohammed, the lead defendant in the 9/11 case against 5 alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon.

The date was extremely significant. The hearings I am scheduled to attend are in the case against defendant Khalid Shaik Mohammad, and four other alleged masterminds of the September 11 Attack on the World Trade Center and the Pentagon. It has been 15 years since that attack, and the defendants in that case are still in the middle of pre-trial hearings.

Logistics of the mission to Guantanamo Bay

Since I have received that message about the Pentagon accepting me to travel to Guantanamo Bay, I could not stop thinking about Guantanamo Bay all the time. I am expected to travel from Indianapolis to Andrews Air Force Base (where is based Air Force One, the United States Air Force aircraft carrying the President of the United States). At Andrews, I am expected to fly on a military transportation to Cuba, where I would stay in a military tent. Guantanamo Bay is a U.S. Naval Station (in 1903, Cuba signed a treaty that leased Guantanamo Bay to the United States for use as a Naval Station).

I plan to blog step by step my experience on behalf of the Indiana McKinney Military Commission Observation Project. It is part of my responsibility to be the eyes and ears from Guantanamo Bay to the outside world, as most people will never have the opportunity to travel there for these hearings. I hope to help promote transparency, to tell the outside world what I hear, see – what I experience as part of this Guantanamo Bay mission. I recognize that this mission has already begun, with my preparation. I plan to continue to blog before I go, while I am there, and after I return.

The academic meaning is even more exciting. If you search Guantanamo on the web, an enormous number of links will direct you to stories related to torture and human rights violations. Unfortunately, an expressive number of it are true, or were true. The fact that the United States are taking action in order to provide transparency represents a lot, and to be granted the opportunity of working on this goal is a tremendous responsibility. After my journey to Guantanamo Bay, I will have a better idea about how transparent the process really is.

Guantanamo Bay Fair Trial Manual

As part of my mission, I will be contributing to the Guantanamo Bay Fair Trial Manual, that Professor George Edwards is creating with students to help observers / monitors and others interested in the rights of and interests of Guantanamo Bay stakeholders. We are reminded that not only do the defendants have rights, but also other individuals and groups have rights and interests, including the prosecution, victims and their families, witnesses, men and women who guard the detainees, the media, and the domestic U.S. and international communities. I hope to share information about and with the full range of stakeholders.

Through the Manual and the observing / monitoring that I and others do at Guantanamo Bay, we are helping to ensure that “whatever happens in Guantanamo does not stay in Guantanamo”. Information is important, and I will do my best to help ensure that knowledge about Guantanamo Bay is share with others on the outside.

I am proudly part of the Guantanamo Bay Fair Trial Manual project, and proudly part of the Military Commission Observation Project of Indiana University McKinney School of Laws’ Program in International Human Rights Law.

 

Aline Fagundes (LL.M. Candidate, ’17)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

 

All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.

 

Guantanamo Bay Hearing for USS Cole Bombing Suspect

Courtroom sketch of al Nashiri by artist Janet Hamlin. Today in court he was wearing a similar white jumpsuit.

Guantanamo Bay courtroom sketch of al Nashiri by artist Janet Hamlin. (copyright Janet Hamlin)

A U.S. Military Commission at Guantanamo Bay, Cuba has scheduled pre-trial hearings next week in the case against Abd al-Rahim al-Nashiri, who allegedly masterminded the 2000 USS Cole bombing that killed 17 U.S. sailors off the coast of Yemen.

At pre-trial hearings defense and prosecution lawyers routinely debate evidentiary, jurisdictional, logistical and other issues, and deal with matters such as what evidence will be admissible at trial, which witnesses will be called and when, whether the court possesses jurisdiction to hear the case, and what date to set for the trial to commence.

What is typical (or atypical) about the al Nashiri pre-trial hearings, about his case itself, or about his plight before other tribunals that have or could exercise jurisdiction? Is his case more complex than others?

Multiple courts have either resolved issues related to charges against al Nashiri or have sought to resolve such issue, or to exercise such jurisdiction. These proceedings appear to have extended beyond routine evidentiary, jurisdictional or logistical issues.

Though the military commission judge identified issues to be debated next week (see his 12 August 2016 docketing order below), it is unclear what will be heard. Indeed it is unclear whether the hearings will go forward. al Nashiri hearings were stayed for almost a year, and when they were set to resume in April, they were abruptly postponed until now. Though many dozens of us are gathered in Washington, DC for a post-Labor Day flight from Andrews Air Force Base to Guantanamo, the hearings can be cancelled at any moment, even after we touch down at Guantanamo Tuesday afternoon.

The stakes are high, as proceedings in different courts could result in one, more or all the charges against al Nashiri being permanently dismissed.

The USS Cole after it was attacked by suicide bombers in October 2000 in Yemen. (Photo courtesy of United States Marine Corps)

The USS Cole after it was attacked by suicide bombers in October 2000 in Yemen. (Photo courtesy of United States Marine Corps)

al-Nashiri is charged with multiple war crimes, including perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, attacking civilians, and attacking civilian objects. He faces the death penalty.

Courts’ jurisdiction

Several courts have exercised or sought to exercise jurisdiction over al Nashiri, that is, the courts have or have sought to resolve matters related to his detention or his alleged crimes.

First is the military commission itself at Guantanamo Bay. al Nashiri was picked up in 2002, held in secret CIA camps for about 4 years, taken to Guantanamo Bay in 2006, and arraigned in 2001 in a military commission. In that commission, he is charged with war crimes associated with the U.S.S. Cole and other ships. This commission is the primary court exercising jurisdiction over al Nashiri.

The D.C. Circuit Court of Appeals has also exercised jurisdiction, ruling on 30 August 2016 that it would not halt the Guantanamo commission against him. The defense had asked the appeals court stop the commission because the commission was not lawfully able to exercise jurisdiction. The appeals court chose not to decide the merits of the matter unless al Nashiri is convicted, at which time the appeals court would decide whether the commission had conducted a trial without jurisdiction.

The Court of Military Commissions Review (CMCR) issued a ruling in his Military Commission case in June 2016, and one in July.

The U.S. District Court for the Southern District of New York also has had a stake, as al Nashiri was indicted in that district but the case has not moved forward because Congress prohibited moving detainees to the U.S. for trial.

The European Court of Human Rights ruled that the government of Poland breached international human rights law when it permitted the U.S. to detain al Nashiri on Polish soil, where he was tortured. The court ordered Poland to pay al Nashiri over $250,000.

At the pre-trial hearings this week, the issue of jurisdiction will certainly arise.

al Nashiri

al Nashiri

Pre-trial Issues in his case

al Nashiri’s pre-trial hearings have touched on many issues.

Front and center recently have been jurisdictional issues, such as those discussed above handled by the DC Circuit and the CMCR, and also raised in the commissions.

Pre-trial issues have related to his treatment while in CIA black sites beginning in 2002 for 4 years, where the Senate Torture Report and other sources (including al Nashiri himself) have identified the following practices against al Nashiri – waterboarding (admitted by the government), mock executions, stress positions, and threats of sexual violence against his mother. Should a person be tried on criminal charges after being subjected to this treatment? Can any statements made by al Nashiri after such treatment be allowed as evidence in the trial against him?

Other pre-trial issues in his case or that may be raised include:

  • whether the U.S. can use as evidence the testimony of a man the U.S. killed (alleged co-conspirator Fahd al-Quso);
  • whether and to what extent the U.S. Constitution applies to al Nashiri’s military commission;
  • whether the right to a speedy trial was violated (over 13 years since al Nashiri was taken into custody and over 9 years since arriving at Guantanamo Bay — with the trial itself not commencing as of 2016 and no trial date set);
  • whether his right to humane treatment was violated (even regarding his Guantanamo housing situation – during these proceedings);
  • his right to have access to classified and other information that might be used against him at trial;
  • whether high-ranking military members engaged in undue influence;
  • the timely acquisition of defense lawyers’ security clearances; and
  • al Nashiri’s physical and mental health.

Much remains to be resolved before any actual trial is held.

At Camp X-Ray, Guantanamo Bay

At Camp X-Ray, Guantanamo Bay — George Edwards

My four 2016 summer trips to Cuba

This will be my fourth visit to Cuba in as many months, with three visits to Guantanamo Bay and one to Havana.

My first visit to Guantanamo Bay in this cycle was to monitor U.S. Military Commission pre-trial hearings in the case against Hadi al Iraqi, who is alleged to have been a high-ranking al Qaeda Iraq member, and to have liaised between al Qaeda Iraq and the Taliban. Hs is charged with various war crimes.

My Hadi al Iraqi monitoring mission was through the Military Commission Observation Project of the Program in International Human Rights Law of Indiana University McKinney School of Law. Our project seeks to attend, observe, analyze, critique and report on U.S. Military Commissions. We are producing the Guantanamo Bay Fair Trial Manual, which is used and usable by any person interested in assessing whether the rights and interests of all military commission stakeholders are being afforded to them. We are interested in the rights of the defendants. We are also interested in the rights and interests of the prosecution, the victims and their families, the media, the guards and other prison personnel, witnesses, and others.

Edwards on U Boat Crossing Guantanamo Bay - 14 August 2016 - the morning that 15 detainees were released to the UAE, bring the total GTMO population down 20 from 76 to 61

Edwards on U Boat Crossing Guantanamo Bay – 14 August 2016 – the morning that 15 detainees were released to the UAE, bringing the total GTMO detainee population down 20 percent from 76 to 61

On my second trip to Cuba this summer I was part of a delegation from the National Bar Association (NBA), which is the organization principally for African American lawyers, judges, law professors, and other legal professionals. An NBA conference was held jointly with the Cuban bar association, focusing on a wide range of U.S. interests and Cuban interests, and interests affecting both countries. The topic of Guantanamo Bay came up repeatedly in our discussions with Cuban judges, lawyers and law professors. I also gave a lecture at the U.S. Embassy – Havana.

NBA - Ambassador's Residence - law profs and deputy ambassador

NBA law professors at Residence of U.S. Ambassador to Cuba, with Deputy Ambassador

My third trip to Cuba this summer was in August for a Guantanamo media tour. When I arrived on Guantanamo at noon on Saturday, 13 August 2016, 76 detainees were imprisoned there. When I left Guantanamo at noon the next day, Sunday the 14th, only 61 detainees remained. During the darkness of night, 15 detainees were released to the United Arab Emirates (UAE). That resettlement marked a 20% drop in the Guantanamo Bay detention population over night.

NBA - Group of law professors at end

NBA law professors at Cuban lawyers collective.

Writing projects of mine I was researching at Guantanamo on that third trip include The Guantanamo Bay Reader and a contributions to The Indiana Lawyer.

This fourth trip to Cuba is to monitor the al Nashiri hearings pursuant to our Indiana McKinney School of Law observation program.

More about all of the above (and below) is available on http://www.GitmoObserver.com.

Docketing Order – Motions on the schedule to be heard

The Military Judge in the al Nashiri case on 12 August 2016 issues a Revised Docketing order, outlining the proposed program for the 3 days of scheduled hearings this week (7 – 9 September 2016). Here is that order.