Office of Military Commissions – OMC

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

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

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

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

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

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

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

First Day of Court

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

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

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

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

Morning Court Session

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

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

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

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

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

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

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

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

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

A Shortened Court Session

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

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

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

Meeting with Chief Prosecutor, Brigadier General Martins

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

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

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

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

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

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Are you going to Guantanamo? New Manual Excerpts for NGO Observers & Others

Click this link for the full Manual — over 500 pages. Below you can download the Manual Excerpts!

If you’re going to Guantanamo Bay in January 2017, you might be interested in our new Guantanamo Bay Fair Trial Manual: Excerpts that offers insights into:

what the right to a fair trial is and how a fair trial should look
how to assess whether a fair trial is being afforded to all Guantanamo stakeholders
roles & responsibilities of independent Observers sent to monitor Guantanamo hearings
background info on Guantanamo the military commissions
a schematic of the courtroom (so you can know who is who)
and a 76 page “Know Before You Go To Guantanamo” insert that will tell you what to expect on your flight to Cuba, the ferry ride across Guantanamo Bay from the landing strip to your Quonset Hut accommodations, base security, food (which can be quite good!), beach, boating, and of course the courtroom, the hearings, and briefings by the prosecution and defense.

In the past, the Gitmo Observer (of Indiana University McKinney School of Law) distributed Manual Excerpts to Observers after we arrived at Andrews Air Force on the morning of our flight to Cuba (or distributed at Ft. Meade, Maryland, for Observers monitoring live by secure video-link from Cuba). Observers said they wish they had had it earlier.

So, we started to e-mail the Manual Excerpts to Observers as soon as we were sent e-mail addresses of Observers scheduled to travel, and we would receive those e-mails 3 – 6 days before the scheduled departure. Observers said that they wish they had it even earlier than that, that 3 – 6 days in advance wasn’t enough time.

So now we are posting the Manual Excerpts on this site, for access by anyone interested, whether or note traveling to Guantanamo Bay (or Ft. Meade or elsewhere), but especially for those traveling to Guantanamo Bay to monitor 3 weeks of January 2017 hearings. Ideally, about 40 independent observers would travel to Gitmo this month, to fill all the slots allocated to observers.

The Defense Department has stated that it favors strong and robust transparency. Having full complements of Observers for each hearing week would help promote transparency, human rights, and the rule of law for all military commission stakeholders (with stakeholders including the defense, the prosecution, victims and their families, witnesses, the media, observers, observer escorts / minders, the public, the U.S. soldiers and others who operate the detention facilities, the military commission court staff, and others).

Here are the Excerpts! Please let us know if you have any suggestions for improving our Excerpts, our full Guantanamo Bay Fair Trial Manual (over 500 pages in 2 volumes!) and our Know Before You Go To Guantanamo Guide (76 pages). Send to GitmoObserver@yahoo.com

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Detainee Rights at Guantanamo Periodic Review Boards (PRBs)

Guantnaamo Bay - Military Commission Seal

Gitmo trials are handled through the Office of Military Commissions (OMC) —- http://www.mc.mil. PRBs are handled through the Periodic Review Secretariat (PRS) — http://www.prs.mil)

When many people think of Guantanamo Bay proceedings, they think of the U.S. Military Commissions that are set to try some detainees for war crimes. Not many think about a special type of administrative hearing through which detainees can plead for their release.

These hearings are called Periodic Review Boards (PRBs), and are rooted in an Executive Order issued by President Obama in 2011. In PRBs, detainees are permitted to argue that they do not threaten U.S. national security, and should be released from Guantanamo Bay, with either repatriation to their home countries or resettlement in a 3rd country. More about PRBs can be found here.

Detainee PRB rights

Certain detainees (not all) have rights to up to 3 “types” of PRBs, including an “initial review” (within a year of the Executive Order), a file review (every 6 months after a final determination of an initial review), and a triennial full review (every 3 years). Either the detainee will remain at GTMO following reviews, be transferred to a 3rd country, or be repatriated to his home country. Following are a list of rights to be afforded to detainees at different phases (initial review, file review, triennial review, transfer or repatriation, or remaining at GTMO:

The right to a PRB (“initial review”) within one year of the Executive Order (though the first initial review was conducted 2 years after the 2011 act, with one of the last initial reviews scheduled for July 2016)
The right to advance notice of the PRB, in writing and in a language the detainee understands, of the PRB
The right to attend his PRBs
The right to be assisted in PRB proceedings by a U.S. Government-provided personal representative who possesses the security clearances necessary for access to the information [It appears as though this representative is a “uniformed military officer” – see http://www.prs.mil.] [I have not yet attended a PRB, so I do not know whether the representative in fact wears a U.S. military uniform.]
The right to have the Government-provided personal representative advocate on the detainee’s behalf before the PRB
The right to have the Government-provided personal representative challenge the Government’s information and introduce information on behalf of the detainee.
The right to retain private counsel to assist him (though at no expense to the United States)
The right to have the U.S. provide him an unclassified summary of the factors and information the PRB will consider in evaluating whether the detainee meets the Executive Order standard, and this must include a summary of or substitute for classified information that is sufficient to assure a meaningful opportunity for the detainee to participate in PRB. The written summary shall be sufficiently comprehensive to provide adequate notice to the detainee of the reasons for continued detention. If a sufficient unclassified summary of classified information cannot be created, that information may not be considered by the PRB in its determination.
The right to call witnesses who are reasonably available and willing to provide information that is relevant and material.
The right to answer questions posed by the PRB (and presumably the right to refrain from answering questions)
The right to present a written or oral statement for the PRB to consider
The right to an interpreter (and presumably the right to have documents translated into a language he understands)
The right to introduce relevant information, including written declarations
The right to have the government provide mitigating information
The right to have a PRB consisting of representatives of each of the Departments of Defense, State, Justice and Homeland Security; the Chairman of the Joint Chiefs of Staff; and the Office of the Director of National Intelligence.
The right to the PRB’s prompt determination, by consensus and in writing, as to whether the detainee’s continued detention is warranted under the Executive Order’s standard, in a language the detainee understands, within 30 days of the determination when practicable.
The right to a full review every three years if the initial review is negative
The right to a file review every 6 months if the initial review is negative.
In “lieu of” a right to appeal a determination of the any PRB, the right to 6 month file review and 3 year full review (see above)
If the detainee is determined to be no longer a threat per the Executive Order, the right to have the Secretaries of State and Defense to ensure that vigorous efforts are undertaken to identify a suitable transfer location for any such detainee, outside of the U.S.
The right to have the Secretary of State, in consultation with the Secretary of Defense, obtain security and humane treatment assurances regarding any detainee to be transferred to another country, and for determining, after consultation with members of the Committee, that it is appropriate to proceed with the transfer.
The right to have the Secretary of State evaluate humane treatment assurances.