Miami Herald

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

Arrival at Guantanamo Bay’s “Camp Justice”

Camp Justice Tents

Tents where we live at Guantanamo Bay’s Camp Justice.

[By Paul Logan. Posted by G. Edwards]

We made it

After a long day of traveling yesterday (Sunday, January 28), we arrived at Guantanamo Bay, Cuba’s, “Camp Justice,” which is a “tent city” where I and other representatives of non-governmental organizations (NGOs) will live for the next week.  We are here to monitor U.S. military commission hearings against Hadi al Iraqi (also known as Nashwan al Tamir), who is accused of perpetrating war crimes in Pakistan and Afghanistan in the early 2000s. I am representing the Military Commission Observation Project of Indiana University McKinney School of Law, and traveled here with five observers from other NGOs: Zoe Weinberg (National Institute of Military Justice – NIMJ); Sarah Ruckriegle of Georgetown Law School; Kelly Mitchell (American Bar Association); Eric Helms (Human Rights First); and retired New York State Judge Kevin McKay (City Bar of New York).

Our flight to Guantanamo

We had an early start, as our “show time” at Andrews Air Force Base outside Washington was at 6 a.m., for a flight scheduled for 10:20 a.m., which actually took off shortly after 11.   We observers were told to sit together in three rows near the back of the chartered National Airlines plane.  Others on the plane were seated in groups in different sections, including the judge and his staff (in the very front of the plane), employees of the Office of Military Commissions staff, defense lawyers, prosecutors, staffs of the prosecution and defense, court reporters, translators and interpreters, security officials, and Guantanamo Bay Press Corps Dean Carol Rosenberg of the Miami Herald.  While victim’s and victim’s family members and panel or jury members are sometimes on these flights, I understand none of these were on our flight today.   Also on this flight were defense lawyers who came down to visit their clients who are prisoners who are not involved with the Hadi / Nashwan al Tamir case we came to monitor.

national airwaysWhile there were some rough patches, it was generally an uneventful and uncrowded flight.  The 757 can fit about 120 passengers, and there were a little over 80 on board, so each of us had three seats.   I finished reading my copy of Know Before You Go to Guantanamo Bay, and began to draft this blog postThe manual, produced by Indiana’s Professor George Edwards, offers many suggestions on things to do when not involved in Military Commission activities, as well as how we can prepare substantively for our Gitmo mission.  We had a very nice view of some islands out of my side of the plane, which I at first supposed to be the Bahamas, but because we were still a ways from Cuba, may have been the outer banks of North Carolina.

It was cool and rainy in Washington this morning and was sunny and beautiful here at Gitmo when we arrived after our 3-hour flight. After taxiing on the short airstrip on the leeward side of Guantanamo Bay, Naval Station authorities checked documents of the passengers. After we went through security, we met one of our escorts who will transport us around “the island,” as those here refer to the base, and boarded a ferry to cross from the across Guantanamo Bay from the leeward to the windward side of Gitmo (as the Naval Station is sometimes called).

Reaching Camp Justice

We NGOs were transported to our homes for the next week — tents in “Camp Justice”. We then made our first trip to the Expeditionary Legal Complex (ELC) to receive our badges that we have to wear when we go to court.  The ELC complex contains Courtroom II in which cases are heard against high value detainees (HVDs), as well as judges’ chambers, trailers for the defense and prosecution, court offices, witness trailers, and holding areas for the detainees.  We received a tutorial on not taking any photographs of any part of the ELC, and not bringing electronic devices to Court.

Evening

As our evening escort drove us to dinner, he received a phone call notifying him that the hearings set for today (Monday the 29th) will be closed to observers, presumably because classified information will be discussed.  We all knew that there was a possibility of closed hearings, but we were disappointed that hearings on the first day would be closed, as we are anxious to do what one of the things we came here to do — observe the proceedings. We all understand that sitting in the courtroom is only one of the things that NGOs do.  Our NGO mission has 6 parts to it: We are here to attend, observe, be observed, analyze, critique, and report on all we experience, both inside and outside the courtroom. We look forward to talking with prosecutors, defense counsel, Office of Military Commission officials, Carol Rosenberg, and others whose experiences will enlighten us and help us to do our jobs as monitors.

What we did Monday when Court sessions were

Paul Logan - Radio Gitmo - with microphone

At Radio GTMO

closed

This morning our escorts took us to visit Radio GTMO, which operates three radio stations broadcast from the base.  I purchased a bobblehead of Fidel Castro displaying the radio stations call letters on it.  Thereafter, we took a look at Camp X-ray, where prisoners were first held here in 2002.  Some may recall the photos in the news of detainees

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An Igauna at the beach

in orange jumpsuits held in primitive outdoor “cages” surrounded by chain link fence and barbed wire.  Several wooden guard towers ring the camp.  Camp X-Ray has been closed for some time.  We were informed that it has not been taken down as it is evidence in an ongoing case.

We then took the 2½ mile ridge line hike which has some dramatic vistas of the island, and saw a very large iguana.  After our hike, it was time for some R&R at Glass Beach, not far from Camp Justice.  We had another iguana visit on the beach.

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A view from the Ridge. That’s Guantanamo Bay in the background. You can also see the part of Cuba over which the Cuban government exercises jurisdiction, outside the U.S. Naval Station at Guantanamo Bay.

We are all looking forward to finally seeing the inside of Courtroom II tomorrow, and finally observing the proceedings against Hadi al-Iraqi / Nashwan al Tamir.

Paul Logan, JD ‘94

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

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

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

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

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

 

Morning Deposition Session – Tuesday, 15 August 2017

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

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

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

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

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

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

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

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Osama bin Laden, notorious leader of al-Qaeda.

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

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

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

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

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

Afternoon Session

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

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

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

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

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

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

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

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

 

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

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

9/11 Case August Pretrial Hearings Cancelled

Military tribunals for some accused of terrorist attacks on the United States are held at Camp Justice at Guantanamo Bay. (Photo by Catherine Lemmer, IU McKinney School of Law)

Military tribunals for some accused of terrorist attacks on the United States are held at Camp Justice at Guantanamo Bay. (Photo by Catherine Lemmer, IU McKinney School of Law)

The pretrial hearing scheduled to take place from the 24th of August through the 4th of September has been cancelled. According to the docketing order for the now cancelled hearing, the court was to hear argument pertaining to 36 different motions. The consideration of the motions was contingent on the outcome of motion AE 292, Emergency Joint Defense Motion to Abate Proceedings and Inquire into Existence of Conflict of Interest Burdening Counsel’s Representation of Accused, and that issue remains unresolved per Miami Herald reporter Carol Rosenburg.

Two representatives (Luke Purdy and myself, Matthew Kubal) of the Military Commission Observation Project and the Program in International Human Rights Law at Indiana University Robert H. McKinney School of Law were scheduled to attend the hearings at Guantanamo Bay as observers.

USS Cole Case Day 1 Wrap Up: Guantanamo Bay

From the ferry crossing Guantanamo Bay, the GTMO airport where we arrived in the background.

View from the ferry crossing Guantanamo Bay, the GTMO airport where we arrived in the background.

Touch Down at GTMO

The first day we arrived at Guantanamo Bay was sobering. This side of the island is beautiful, and everyone at the Base who met us is very friendly. We arrived, went through security and got on vans to head to the Ferry. It is a short ferry ride to Camp Justice, and we had interesting conversations with other observers and different people going to Guantanamo for different purposes unrelated to the pretrial hearings. Our luggage was waiting for us when we arrived. We have all been set up in two tents; one for the men and one for women.

On Sunday, we went for dinner at an Irish restaurant. The food was everything but Irish, but I cannot judge seeing as I ordered tilapia! I found it interesting that we could not all sit together as we had not made a reservation 24 hours in advance. Yesterday (Monday, the 2nd) we switched things u and went next door the Irish place, the Windjammer, which has the exact same menu as the Irish place. Sigh.

Guantanamo Bay Courtroom from the viewing gallery, behind  the thick, bulletproof glass.

Guantanamo Bay Courtroom from the viewing gallery, behind the thick, bulletproof glass. (Photo credit: CBS News. Photo by Joe Raedle/Getty Images)

Courtroom Tour

Day 1 at Gitmo started with a tour of the Court. We were not able to go inside the actual courtroom as they had already prepared it for the session. We sat in the gallery, which is behind glass windows that have TV monitors transmitting with a 40-second delay to allow for time to censure any classified information that may be said in court.

We talked about the trial process in Military Commissions, Convening authorities and their roles, especially in light of the Unlawful Influence motion that was set to be ruled on., how juries and selected,  and went over some court rules and structure.

Court Session Begins – Victims & Family Join

We reconvened at the court at 10:30 a.m. This time we were joined by Victims and Family who sat on the opposite end of the room. In the room, we had our NGO escorts as well as some military personnel to escort us if we needed to leave the room, or if we needed anything else. One of them was actually from Indiana. Always great to meet “fellow Hoosiers”. Our escorts have been wonderful the entire time, and drive us anywhere we wish to go, including to the court a few yards away sometimes.

We were given assigned seats even though the gallery was half-empty.

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

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

From where I was in the back row, I did not see the bring al Nashiri in, but I did see him during our “comfort break”. He was in a white jumpsuit and was chatting with his team, looking very calm. At 50 years old, he certainly looks a lot younger in my opinion

Judge’s Ruling on Unlawful Influence by Marine Major General Vaughn Ary (retired)

First order of business, Judge Spath delivered his ruling on the Unlawful Influence Motion (AE 332, Defense Motion to Dismiss for Unlawful Influence and Denial of Due Process for Failure to Provide an Independent Judiciary). The Guantanamo Fair Trial Manual addresses the relevant laws on Unlawful Influence on page 63.

The judge ruled that there was an appearance of Unlawful Influence by retired Marine Major General Vaughn Ary, the Convening Authority (CA) but that because he found Ary did not act in bad faith he did not allow the defense remedies of dismissing the case (See pg. 5896 Unofficial Unauthenticated Transcript, al Nashiri, A March 2015). He further ordered that the CA and his legal advisors be disqualified from taking any further action and making any further recommendations in the case. He called for the appointment of a new CA.

There will be no further evidentiary hearings this week, and several people have mentioned that we may wrap up the sessions as early as today (Tuesday).

The judge mentioned that a ruling on a Motion 205 would be out soon, but that he had denied 205 BB (a motion to reargue) and 205 EE (a motion to supplement additional pleadings). I later learned during a briefing with General Martins that these were defense motions to seal some of al Nashiri’s medical records for privacy reasons.

More Motions

At the 1300hrs (1:00 p.m.) session, the court heard spirited arguments from both the defense and prosecution on the following motions:

  • AE 331 A – Government Motion To Amend the Docketing Order (February 2015 Hearing) To Allow The Government To Determine The Manner In Which It Presents Its Evidence Relating To The Admissibility Of Government-Noticed Hearsay And Evidence Identified In AE 207;
  • AE 319J – Defense Motion to Continue Further Hearings on the Government’s Motion to Admit Hearsay Until the Court of Military Commissions Review Renders a Final Judgment on Appeal;
  • AE 256D, Defense Motion to Strike AE 256C: Government Notice of Bill of Particulars (Defining Civilian Population as Used in Aggravating Factor #5);
  • AE 257D, Defense Motion to Strike AE 257C: Government Notice of Bill of Particulars (Defining Civilian Population as Used in Aggravating Factor #5).

Meeting with Chief Prosecutor General Martins

The session ended at about 3:30 p.m. to the public, and continued to discuss a classified Motion 505 in chambers. We met about an hour (for about an hour) later with Army Brig. General Mark Martins, the Chief Prosecutor in the Office of Military Commissions.

We went over some of the hearsay rules under the Military Commissions Act relating to some of the motions discussed in the afternoon session, and answered our questions relating not just to the USS Cole.

Meeting Carol Rosenberg

Before this meeting however, I bumped into Ms. Carol Rosenberg, a notable reporter from the Miami Herald who is known as the Dean of the GTMO Press Corps and has been reporting on Guantanamo since 2002. She said she had read my tweet, and that she knew how to adjust the air conditioning in the tents! Who knew! She later came back and showed us how to do just that. We made very minimal adjustments so as not to let any rodents in or get the tent moist and moldy. Thanks to that, night 2 was a sleeping-bag-only affair.

Tuesday’s Court Schedule

Today (Tuesday) the court session begins at 9:00 am.

Avril Rua Pitt, Camp Justice, Guantanamo Bay, Cuba, Tuesday, 3 March 2015

Year End Update: More Guantanamo Detainees Released (Catherine Lemmer)

Keeping informed. 

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Carol Rosenberg by Colonel Bryan Browles (from Wikipedia)

The most important thing I observed during my time at Guantanamo Bay is that the activities that occur there are far from the minds of most Americans. In my small opinion, this physical and virtual distance creates a situation ripe for abuse. On the flight home I sat across the aisle from Carol Rosenberg (Miami Herald) and plied her with questions. She is perhaps the best source of knowledge as she has been on the story since the arrival of the first detainees in 2002. During the NGO Observer Tour of the courtroom facilities, the Officer in Charge of the Office of Military Commissions, John Imhof, often looked to her for information.

I made a commitment to myself to stay informed. It shouldn’t take a lot of effort — I’ve started following Ms. Rosenberg’s twitter feed and set up an alert on my news feeds.

National Public Radio interviewed Ms. Rosenberg at 6:45 pm EST on December 31 regarding the release of an additional four detainees and the efforts to close Guantanamo Bay. As of this date, there are still 127 detainees, 59 of whom have been cleared for release. While the rest of the world prepared for year end celebrations, she maintained her vigilance on our behalf.

(Posted by Catherine Lemmer)

9-11 Hearings Halted Due to Female Guard Issue

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9-11  Parties Court Seating Chart

I won’t be using this seating chart this morning.

Despite closed-door sessions with Judge Pohl on Sunday (14 December 2014), the prosecution and defense did not reach agreement on the female guard issue. A detainee is physically touched by the guards when moved from his cell; for example, for court appearances and attorney meetings. Woman constitute nearly 25% of the guard population at Camp 7 where the high level detainees are imprisoned and are integrated into the details. The detainees object on religious grounds to physical contact with women. If women are in the transfer detail, the detainees refuse to leave their cells; even if it means foregoing attorney meetings. If a detainee refuses to leave his cell, a forced cell extraction occurs (“FCE”). The FCE has been described as a tackle-and-shackle procedure.

All detainees were ordered to appear in court this morning which could have prompted FCEs. In order to avoid FCEs, Judge Pohl cancelled today’s hearings.

The NGO observers are awaiting a briefing from Chief Prosecutor Mark Martins later this afternoon. There is also the possibility of a briefing from the defense teams. I will post updates as soon as I have any news.

Addendum: The continued use of female guards despite the religious concerns of the detainees is perplexing. Other accommodations have been made for the detainees. For example, they are allowed to bring their prayer rugs into the courtroom; action in the courtroom stops to allow the detainees to pray; the direction of Mecca is marked on a wall in the courtroom; and dietary restrictions are taken into account when preparing their meals. Explanations as to why all male guard transfer teams are being used include the following (paraphrased): (i) the armed forces are an equal opportunity employer and women are being integrated; (ii) the judge does not manage or wish to manage the detainee facilities; (iii) 25% of the guard force here is women and it is not possible to take them out of the rotation.  More to come on this.

(Posted by Catherine Lemmer)

Ambassador, Congressman, Law Professors & Journalist Discuss Guantanamo Bay’s Future

From left Dean and former U.S. Ambassador to Poland Lee Feinstein, Miami Herald Senior Correspondent Carol Rosenberg, Professor Edwards of The Gitmo Observer, Special Assistant to the International Criminal Court Prosecutor Professor Leila Sadat, and former Congressman Lee Hamilton who was Vice Chair of the 9-11 Commission.

From left Dean & former U.S. Ambassador to Poland Lee Feinstein, Miami Herald Senior Correspondent Carol Rosenberg (@CarolRosenberg), Professor George Edwards of The Gitmo Observer (@GitmoObserver), Special Assistant to the International Criminal Court Prosecutor Professor Professor Leila Sadat, and former Congressman Lee Hamilton who was Vice Chair of the 9-11 Commission.

The Guantanamo Bay detention facilities and U.S. Military Commissions were intensely discussed at a panel hosted by the Indiana University School of Global and International Studies.

Panelists spoke about the rationale and feasibility for closing Guantanamo’s detention facilities, how the international community views Guantanamo and its trials, insights from a journalist who has covered Guantanamo Bay since the first detainees arrived in January 2002, and measuring whether all Guantanamo Bay stakeholders’ human rights are being afforded to them.

Former Indiana Congressman Lee Hamilton, who was Vice-Chair of the 9-11 Commission, discussed the US government rationale for the shutting down of Guantanamo Bay and the difficulties in effecting such closure, from a Washington perspective. He described political and logistical challenges to a rapid closure.

Ms. Carol Rosenberg, who is Senior Correspondent for The Miami Herald, was in Guantanamo Bay to witness the January 2002 arrival of the first group of approximately 20 detainees, who were housed in “Camp X-Ray” wearing iconic bright orange prison. Ms. Rosenberg spoke about the history of the detention facilities, and its past, current and future challenges. She further elaborated on her perspective as a journalist assigned to the Guantanamo Bay.

Professor Leila Sadat, of the Washington University School of Law, is Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow, Director of the Whitney R. Harris World Law Institute and the Special Adviser on Crimes Against Humanity to the ICC Prosecutor. She provided a perspective on how the international community, outside of the U.S., views Guantanamo Bay and its Military Commissions.

U.S. Ambassador to Poland (former) Lee Feinstein, who is Founding Dean of the School of Global and International Studies, provided perspective given his many years of diplomatic and international law public experience and research. Dean Feinstein moderated the panel.

Professor George Edwards is founder of The Gitmo Observer, which is also known as the Military Commission Observation Project (MCOP) of Indiana University McKinney School of Law. Professor Edwards spoke on “Assessing Human Rights Protections for All Guantanamo Bay Stakeholders, Not Just the Rights of the Defendants”.

Professor Edwards descried how he founded the Indiana University McKinney Law School’s Program in International Human Rights Law, and how the Pentagon’s Convening Authority selected that program to be granted non-governmental observer status to permit it to send representatives to Guantanamo Bay to monitor hearings in person, or to Ft. Meade to monitor via secure video feed. Professor Edwards created then created the Military Commission Observation Project, which is now known as The Gitmo Observer. He talked about The Gitmo Observer’s most recent project, the Guantanamo Bay Fair Trial Manual, which those who monitor the Guantanamo Bay proceedings and process use to determine whether a fair trial is being held.

The panel was held at the University Club, at the Indiana Memorial Union, with a reception that followed in the Faculty Room.

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