The MCOP, which was founded by Professor George E. Edwards, routinely sends IU McKinney students, faculty, staff, and graduates to Guantanamo to serve as non-governmental organization (NGO) Observers, through a Pentagon initiative in line with the U.S. government’s stated objective of transparency in the war crimes proceedings occurring at Guantanamo. Indiana’s NGO Observers travel to Guantanamo with a mission to attend, observe, be observed, analyze, critique, and report on the commissions. I write to you now from Andrews Air Force Base while waiting to board my military flight to Guantanamo in furtherance of this mission.
I am joined at Andrews by three other NGO Observers representing different organizations. This is a relatively small group of Observers, as Guantanamo NGO Observer groups can sometimes consist of ten or more individuals. While we wait, we are studying two manuals, prepared by Professor Edwards, related to our mission:
(a) Guantanamo Bay Fair Trial Manual – Excerpts (which describes the U.S. Military Commissions, what a fair trial should look like at Guantanamo, the applicable law, and other related materials); and
(b) Know Before You Go To Guantanamo Bay (which describes a pragmatic approach to NGO Observation, the Roles and Responsibilities of NGO Observers, the Dos and Don’ts at Guantanamo, the beaches, the restaurants, the theaters, and various other amenities available at Guantanamo when court is not in session).
Beyond this, we have been introduced to two escorts who are to serve as our primary liaisons and guides during our stay at Guantanamo. Our escorts have identified various rules to be followed while at Guantanamo (including photography limitations, security badge requirements, and the need to inform each other of our activities and whereabouts during our stay). They also explained that serving as an NGO Observer at Guantanamo would be an exercise of flexibility and patience, as rules and schedules are often subject to change (see “Reduced Hearing Schedule” heading below).
Nashwan al Tamir / Abd Hadi al Iraqi
I will be observing the case against Nashwan al-Tamir (what he declares to be his true name), or Abd al Hadi al Iraqi (the name the prosecution used in the charges; hereinafter “Nashwan / Hadi”). Nashwan / 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. Nashwan / Hadi was captured in Turkey in late 2006 and was soon turned over to U.S. intelligence. He subsequently spent 170 days in secret CIA custody before being transferred to Guantanamo in 2007, where he has been the subject of proceedings since 2014. He is described as a “high-value detainee” by U.S. officials, and was proclaimed by the Bush administration to be among Osama bin Laden’s “most experienced paramilitary leaders”.
Reduced Hearing Schedule
In the days preceding my scheduled flight to Guantanamo, I received an email from the Office of Military Commissions (OMC) Convening Authority informing me that the hearings for this coming week in the Nashwan / Hadi case had been reduced from a full week of hearings (24 – 28 September 2018) to a single hearing day (24 September 2018). I was not entirely surprised by this news. Guantanamo hearing schedules tend to change with little notice, perhaps especially in the case against Tamir / Hadi, given the reported fragile state of his health. Indeed, during my past nomination, the hearings I was scheduled to observe were cancelled altogether.
The OMC initially suggested that because of the reduced hearing days, we would return from Guantanamo earlier than scheduled. However, at Andrews our escorts informed us that we would remain at Guantanamo for the entire week – Sunday through Saturday – even though we would have hearings only on Monday morning. Our escorts also told us that they are organizing non-court activities at Guantanamo, with more information to soon follow.
I am excited for the hearing, and to see how the rest of the week unfolds.
Conclusion
Please stay tuned for future updates; I plan to continue blogging throughout my stay at Guantanamo.
Fellow NGO Observers and I holding our copies of the “Know Before You Go To Guantanamo Bay Guide” in preparation for our trip to Guantanamo. I am second from the right.
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
This morning, in a dark, locked, secure Pentagon conference room, I attended a hearing in which Guantanamo’s oldest detainee, 69-year-old Mr. Saifullah Paracha, asked the U.S. government to set him free. I was joined by Judge Aline Fagundes, who is a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, and several other carefully screened civilian monitors.
The hearing was held pursuant to a 2011 Executive Order issued by President Barack Obama that provides detainees periodic reviews to determine if the detainees are a threat to U.S. national security. If the Periodic Review Board (PRB) finds that the detainee is a threat, he remains detained. If he is found not to be a threat, he may be repatriated to his home country or resettled in a third country.
Mr. Paracha argued for his release. The government alleged that Mr. Paracha was a “businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners”.
The PRB is expected to render a decision in Mr. Paracha’s case in about a month.
Today’s hearing – Who? Where?
Today at the Pentagon we had 6 observers from non-governmental organizations (NGOs) and the media. Two of us were from the Guantanamo Bay project I founded at Indiana University McKinney School of Law (GitmoObserver.com). Our project sponsors Indiana Affiliates to travel to hearings at Guantanamo, the Pentagon, and Ft. Meade, Maryland.
We were met by 2 military and one civilian escort in the Pentagon’s Visitor Center, and escorted to a conference room where we talked amongst ourselves and listened to the Military History Channel, waiting for the hearing to commence.
Others present for the hearing included members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. These individuals were not with us at the Pentagon, but were at a separate, undisclosed location in the DC area. It is believed that also present for the hearing, also at one or more undisclosed locations, were the Legal Advisor to the Board, the Case Administrator, a Hearing Clerk, and a Security Officer.
The detainee – Mr. Paracha – was present, by close circuit TV.
Mr. Paracha was joined by a “personal representative”, who is a military official dressed in uniform, who has been spending time with the Mr. Paracha and helping him present his case. The personal representative is not a lawyer or other sort of legal professional, and communications between Mr. Paracha and his personal representative are not protected by attorney client or similar privilege.
The hearing begins
The hearing was scheduled to begin at 9:00 a.m., but what appears to have been a technical glitch resulted in a delay. Some of us were concerned, since at the last PRB we attended the audio feed was great from Guantanamo Bay but there was no visual feed so the screen was blank. Today’s visual feed was blurry, but at least we could see the Guantanamo hearing room and its occupants, unlike at the last PRB.
Mr. Paracha
At 9:14 a.m., a picture appeared on the almost ceiling-height screen.
In our dimly lit conference room, we saw on the screen the dimly lit Guantanamo room where the detainee sat at the end of a rectangular table, facing the camera, with a stack of papers in front of him. They were in one of Guantanamo’s trailer-like, austere, rooms that had plain walls, floor, and table.
In contrast to the bland surroundings, the hearing room had high back office chairs, that looked like high-quality leather chairs one might see in a law associate’s office. Aside from air conditioner units, seemingly from the 80s, hanging window-height on the wall behind Mr. Paracha’s head, there was nothing else on the walls.
On the table in front of Mr. Paracha’s seat was a table-top name plate that said in large, bold, all capital letters “DETAINEE”.
Mr. Paracha wore a white top, with somewhat short sleeves that appeared bunched at the elbows. His attire was clearly not a detainee “uniform”. Through the blur it appeared as though he had a white beard and a bald head.
The personal representative sat at the table on Mr. Paracha’s right, perpendicular to him, and not directly next to him.
The hearing began with a male, off-camera voice announcing that the hearing was commencing, mentioning some hearing rules, identifying who was present – boiler point.
Next came a female voice, again off camera. This voice read the Government’s Unclassified Statement, as follows:
Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them.
Mr. Paracha appeared to be paying close attention to whichever person happened to be speaking at the time – one of the off-camera narrators or his personal representative. The hearing was conducted in English, as a voice in the background stated that Mr. Paracha had waived his right to an interpretation of the hearing in another language of his choice.
While the personal representative spoke, Mr. Paracha would from time to time glance at her. At other times he appeared focused on the papers in front of him, appearing to follow along in English, flipping pages as the script was being read. At times he would place his left open palm firmly on the stack of papers, as though holding them down from a breeze.
The hearing ended at 9:19 — just 5 minutes after it began. This was the shortest PRB I have attended. They typically begin at 9:00 and run no longer than 30 minutes.
No private counsel of Mr. Parach attended today’s PRB, and no statement was read by any private counsel for Mr. Paracha’s today. That was one reason that the PRB was shorter than usual. It is unclear why private counsel did not appear today. A statement by the private counsel Mr. David H. Remes had been posted on the Perriodic Review Board websitehere. But, that statement was the same statement submitted under Mr. Remes for Mr. Paracha’s file review PRB in 2016. That statement ended with this sentence:
For these reasons, I respectfully encourage the Board to convene a full review and hope that it will conclude that Mr. Paracha’s continued detention is unwarranted.
David H. Remes
Approved for Public Release
UNCLASSIFIED
That statement asked the Board to convene a “full review”, and today’s hearing was the “full review” requested. If Mr. Remes submitted a private counsel statement for today’s hearing, that statement was not posted on the PRB website (as of tonight — 8:55 p.m., Tuesday, 21 March 2017), and was not read at today’s hearing. What was posted online under Mr. Remese name was from last year.
Mr. Paracha’s background
Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.
Uzair Paracha, Mr. Paraha’s son, is serving a 30 year sentence in a U.S. federal prison on terrorism-related convitions.
The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.
Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.
Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.
The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.” Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.
Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.
Paracha’s 3 PRB hearings — summary
Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.
Initial Review.Paracha had a PRB initial review on 8 March 2016, and on 7 April 2016 the Board concluded:
The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States. In making this determination, the Board considered the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.
File Review.Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:
On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.” The PRB previously conducted a full review of the detainee and on 7 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States. After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to Whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.O. 13567.
Full Review.It was Mr. Paracha’s full review that was held today. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will repatriate him to Pakistan or send him to a 3rd country – outside the U.S.
The Board will likely publish a decision on this full review in a month or so.
More on this hearing?
The initial part of the PRB was unclassified, and that is the portion of the PRB that Judge Fagundes, the other monitors and I observed. During that portion of the PRB, we were sitting in a secure Pentagon viewing room watching Mr. Paracha and his personal representative live from Guantanamo Bay.
PRBs v. Military Commissions
Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.
PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.
Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.
Professor George Edwards & Judge Aline Fagundes at the Pentagon before the Periodic Review Board (PRB) held on 21 Marh 2017
Judge Fagundes’ observations
Judge Fagundes is the first student from Indiana University McKinney School of Law to participate in all three types of hearings our Indiana Guantanamo Bay Military Commission Observation Project / Gitmo Observer may send affiliates to observe:
She traveled to Guantanamo Bay, Cuba to monitor U.S. Military Commissions live, in the courtroom.
She traveled to Ft. Meade, Maryland, to monitor U.S. Military Commissions via a secure videolink from Guantanamo.
She traveled to the Pentagon to monitor Guantanamo Bay Periodic Review Board (PRB).
Judge Fagundes is researching and writing a paper that focuses on international law requirements for transparency in the U.S. Military Commission system. She has described some of her experiences on this blog – www.GitmoObserver.com.
From my perch as an Indianapolis city employee working in economic development, I don’t often receive an email inquiring about the seriousness of my interest in traveling to Guantanamo Bay, Cuba.
But that’s exactly what happened on January 31, 2017.
Indiana University McKinney School of Law Professor George Edwards, an International Human Rights Law Professor of mine and who was also my third-year law school research paper faculty supervisor, emailed me with a simple question: “Are you available for a quick phone call?”
I was puzzled. I had, years ago, inquired about the law school’s then new Guantanamo Bay Military Commissions Observation Project (MCOP), but after a few exchanges with Professor Edwards and other inquiries, I realized it was simply bad timing on my part.
That said, it turns out I had been in contact with Professor Edwards on an unrelated matter, and renewed my interest in traveling to Guantanamo Bay to monitor military commissions. Professor Edwards and I discussed the project, and he impressed upon me the gravity of the undertaking.
Professor Edwards asked If I really want to travel to Guantanamo Bay to do the work; which includes lots of preparation, work once you’re there, and work once you return.
He reminded me of the importance of the work of our law school’s Program in International Human Rights Law generally, and about the importance of its Guantanamo Bay work which began more than a decade ago.
It was quite clear this wasn’t a passive trip to Cuba; this was to be taken very seriously and the hard work required of each individual would ideally result in substantive and value add contributions to the policies and procedures Professor Edwards and his partners have worked hard to create.
After a discussion with my spouse, I was officially committed.
Background and Experience
For some background, I was not deeply involved with human rights when I was a law student, and I am not a human rights attorney. Since graduating from McKinney law school in 2010, I have worked in the private sector for a global aerospace company and in the nonprofit sector for a disabilities services organization. I currently work for the City of Indianapolis managing real estate transactions and economic development projects and strategy.
In short, I did not think that I was an obvious candidate for a mission to Gitmo as part of a legal proceedings observation effort. But, it is my hope that my outside viewpoint and fresh set of eyes can be beneficial and offer a different perspective as I observe and try to contribute to the understanding of existing guidelines and procedures.
Back to the Storyline
Once I told Professor Edwards I was committing to the assignment, it was time to better understand the process and the various entities involved.
The Indiana University McKinney School of Law Program in International Human Rights Law (PIHRL), under the leadership of Professor Edwards, established the Military Commission Observation Project (MCOP). After the Pentagon Guantanamo Bay Convening Authority granted MCOP Non-Governmental Organization Status, affiliates of Indiana University McKinney became eligible to travel to Guantanamo Bay, Cuba to monitor U.S. military commissions which were established to try alleged perpetrators of war crimes. Specifically, as observers or monitors, our 5 principal responsibilities are to: (a) attend; (b) observe; (c) analyze; (d) critique; and (e) report on hearings of detainees at Gitmo.
My process began by submitting certain personal information for consideration by the MCOP Advisory Council. Once approved for advancement by the Council, my name was then submitted to Pentagon as a nomination. At this point, the Pentagon can confirm you or deny you. Fortunately, on February 9, 2017, I was “CONFIRMED” by a Pentagon representative.
To be specific; from the Pentagon:
“You have been CONFIRMED to observe the March 18-25 9/11 Week ONE military commission in-person at Guantanamo Bay, Cuba. Currently, the flight schedule is as follows:
Departing from Joint Base Andrews to Naval Station Guantanamo Bay on 18 Mar (SAT) at 1000
Departing from Naval Station Guantanamo Bay back to Joint Base Andrews on 25 Mar (SAT) at 1000.”
I then had to fill out various forms and agreements. In some ways, this has been the most complicated part so far, since each of the documents is different, and each document must be completed following very specific guidelines. Professor Edwards sent my “completed” documents back to me numerous times for me to modify my original entries to comply with Pentagon requirements, and with requirements of the Indiana University administration including IU lawyers who review some of the forms before we observers are permitted to return them to the Pentagon. The templates that I was given to follow were helpful, but it was nevertheless still a challenge.
Finally, all the documents were reviewed by Indiana University officials (including the IU Treasurer) and by the MCOP, I sent all requisite information to the Pentagon in the hopes that they would grant me full clearance.
What Hearings will I monitor?
There are three sets of hearings ongoing at Guantanamo Bay now. During the week of my scheduled monitoring (19 – 25 March 2017), hearings will be held in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. I remember where I was on September 11, 2001, and I cannot escape the impact it had on me. Pictured in this blog is Khalid Shaik Mohammed, the alleged mastermind himself, who was, among other things, waterboarded 183 times.
This is Actually Going to Happen?!?
At this time my focus has turned to the nuts and bolts of traveling from Indianapolis to Cuba. Easy right? Yeah… I plan to fly to Washington, DC then snag a Lyft and drive to a hotel near Andrews Air Force Base in Maryland, which is around a thirty-minute trip. I will stay overnight there, in anticipation of my morning flight from Andrews in a military airplane directly to Guantanamo Bay, Cuba.
While at Guantanamo Bay, among other duties, I plan to provide updates via this blog site.
I hope to offer unique insights contributions to the existing body of work relating to legal proceedings, policies, and guidelines. I see this as an occasion to provide transparency from an “on the ground” perspective. Very few have had the chance to travel to Gitmo to monitor military commission proceedings; I intend to make the most of this opportunity, for the benefit of all concerned.
This Manual is the product of the hard work performed by Professor George Edwards and other student and legal partners who have been observing at Gitmo for years. It provides many of the policies and procedures that govern the treatment of detainees and the trial and legal proceedings. It is an objective and independent document that is used by observers from other institutions and others as they form their own judgments as to whether Guantanamo Bay stakeholders are being afforded all rights and interests they are owed.
I feel it an honor to be able to observe and contribute to this important document.
I am proud to be an Indiana McKinney School of Law alum, and thankful for the opportunity provided by the MCOP and the Program in International Human Rights Law.
Brent M. Pierce, J.D. ’10
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Today, after 14 years imprisonment at Guantanamo Bay, Cuba, a Yemeni detainee named Mohammad Ahmad Abdallah al Ansi asked the U.S. Government to transfer him from Cuba to a third country. If released, 58 detainees would remain at Guantanamo, down from a record high of 780 detainees.
This parole board like hearing is called a Periodic Review Board (PRB), and was convened pursuant to President Obama’s 2011 Executive Order calling for PRBs to ascertain whether detainees pose a continuing threat to the national security of the U.S. If a detainee does not pose such a threat, he may be repatriated to his home country or transferred to a third country. It is unknown whether the next President will rescind this Executive Order and cease Period Reviews, and whether any of the 5 dozen remaining detainees will be released after January 2017.
President Obama’s 2011 Executive Order calls for three types of PRBs: (a) an Initial PRB for all detainees, involving a hearing at which the detainee may appear and speak on his own behalf; (b) a file PRB, held 6 months after a detainee is denied release following an initial PRB and which detainees are prohibited from attending; and (c) a full PRB, held if after a file review the Board finds that the detainee is a “continuing” risk to US national security.
Al Ansi, who is also known as prisoner number YM – 029, had his initial PRB in February 2016, a file PRB in September 2016, and a full PRB today. This article discusses the initial, file and full reviews.
al Ansi’s initial PRB
At al Ansi’s initial PRB on 23 February 2016, he appeared in person. On 23 March 2016, a month after the initial PRB, the Board made its final determination as follows:
The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States.
In making this determination, the Board considered the significant derogatory information regarding the detainee’s past activities in Afghanistan. Further, the Board noted the detainee’s lack of candor resulting in an inability to assess the detainee’s credibility and therefore his future intentions.
The Board looks forward to reviewing the detainee’s file in six months and encourages the detainee to continue to be compliant, continue taking advantage of educational opportunities and continue working with the doctors to maintain his health. The Board encourages the detainee to be increasingly forthcoming in communications with the Board.
al Ansi’s file review PRB
After his initial PRB, al Ansi had a file review PRB, which he was not permitted to appear, with a Board determination based only on his written “file”. His file review was held on 13 or 14 September 2016 (according to http://www.prs.mil), and on 14 September 2016 (according to the written file review final determination) the Board ruled as follows:
MEMORANDUM FOR THE RECORD
SUBJECT: Periodic Review Board File Review – Muhammad Ahmad Abdalla al-Ansi (YM- 029)
On 14 September 2016, the PRB conducted a file review for Muhammad Ahmad Abdalla al Ansi (YM-029) 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 23 March 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States. After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.0. 13567.
I watched al Ansi’s PRB broadcast live from Guantanamo Bay into a nondescript Pentagon conference room this morning, with a handful of human rights advocates and one member of the media.
al Ansi’s Full PRB
Today’s PRB (6 December 2016) as Ansi had a “full” PRB review.
Today’s full PRB, like all the other PRBs, was held at Guantanamo Bay. Today’s session was broadcast by live close circuit TV (CCTV) to a secure location at the Pentagon for viewing by non-governmental organizations and the media.
I observed the hearing in a modest Pentagon conference room, joined by representatives of non-governmental organizations (Judicial Watch, Heritage Foundation, ACLU, and Human Rights First) and the media (Courthouse News). When we watched these proceedings piped in from Guantanamo, we also had 2 to 3 military or civilian escorts or technicians in the room with us, but I will not reveal further information about the identities, ranks or affiliations of these individuals (all of whom are always very friendly and nice!).
Members of the PRB Board – which comprises one representative each from the Departments of Homeland Security, State, Justice and Defense; the Joint Chiefs of Staff; and the Office of the Director of National Security – were not physically at Guantanamo Bay, but watched the proceedings from the D.C. area, presumably from their respective offices.
It is unclear when the Board is expected to make a final determination on this full PRB, and whether that determination will be made before the Obama Administration ends on 20 January 2017.
Some of the words spoken during the hearing were in Arabic, and were spoken by an on-camera interpreter.
An off camera voice, presumably from but not necessarily from Guantanamo, advised in English on the nature of the hearing, the format, and the short agenda.
Another off camera voice read aloud the government’s “unclassified summary statement”, in English, of behavior that al Ansi allegedly engaged in, both before he arrived at Guantanamo and after he arrived.
After the government’s unclassified summary statement, the personal representative read an opening statement in English.
Then, al Ansi’s private counsel read a statement, also in English.
After the statements, an off camera voice asked if anyone had any questions. There were none.
The unclassified portion of hearing ended roughly 15 minutes after it started. Observers were invited to leave the conference room, since Observers are not permitted to observe classified portions of the PRB hearings.
Who is Mohammad Ahmad Abdallah al Ansi?
He is 40 or 41 years of age, born in Yemen. The government paints a picture of him as an avowed war criminal member of al Qaeda, as being loyal to Osama bin Laden, and as a person slated for an aborted hijacking in Asia meant to coincide with 9/11. The government has kept al Ansi in prison at Guantanamo Bay for over 14 years, and has on multiple occasions affirmatively ruled that he posed a threat to the national security of the U.S. Indeed, this same PRB ruled twice this year (February and September 2016) that al Ansi should not be released.
al Ansi’s personal representative and private counsel painted a different picture of al Ansi. The private counsel spoke about al Ansi’s suitability for release, and what he might do constructively upon release. Though the personal representative did not directly speak to the issue of whether he thought al Ansi posed a continuing threat to U.S. national security, the personal representative did not speak against release.
Today’s hearing itself
Today’s full PRB hearing commenced about 9:06 and ended 15 minutes later at about 9:21.
al Ansi sat at the head of a small white rectangular table that appeared to be in a Guantanamo Bay “trailer” (and not in a Guantanamo Bay courtroom). On the long side of the table to his left sat his personal representative in a U.S. military uniform. Directly across from him, to al Ansi right, sat the linguist. Next to the linguist was the private counsel, sitting closest to the camera.
Throughout much of the hearing, al Ansi, who was dressed in white non-descript attire, sat with his elbows resting on the table, hunched a little forward, flipping through documents in front of him, possibly reading through the documents. It was impossible for us to see on the screen what the nature was of the pages in front of al Ansi, or in what language the pages were written. At times he would rest his forearms on the table, with his hand clasped, eyes cast downward.
Government’s unclassified statement
An off-camera woman’s voice read aloud the Government’s “unclassified statement” in which the Pentagon contended that al-Ansi
traveled to Afghanistan in 1999, where he joined al-Qa’ida, swore bayat to Usama Bin Ladin, and served as Bin Ladin’s bodyguard. Judging from other detainee statements and corroborating information [al-Ansi] may have been selected to participate in an aborted hijacking plot in Asia intended to coincide with the 9/11 attacks. He was captured by Pakistani authorities after the battle of Tora Bora in 2001. [al-Ansi] has been mostly compliant with the detention staff at Guantanamo, and his last disciplinary infraction was in June 2014. He has not expressed support for extremist causes or maintained contact with terrorists at large.”
Private Counsel Arguments supporting al Ansi’s request for transfer
al-Ansi’s was represented at this PRB by private counsel Beth Jacob who is a partner at the New York law firm Kelley Drye & Warren, where she represents generic pharmaceutical companies. Before she joined Kelley Drye & Warren, she represented the Port Authority of New York & New Jersey in litigation arising out of the 9/11 attacks, representing 9/11 victims who sought compensation. She had previously been an assistant district attorney i n New York, prosecuting fraud and official corruption.
She only began representing al Ansi since after his initial PRB ruling finding that he continued to pose a threat to national security of the United States.
She pointed out that al Ansi showed her some of the artwork created at Guantanamo Bay, and she showed it to a New York-based artist, who “was struck by his ability and innate talent , as she has written in her letter to this Board”.
In arguing that al Ansi should be released from Guantanamo Bay, she noted that the New York artist and Reprieve said that. “Mr. al Ansi’s art will stand him in good stead if he is deemed transferrable” for several reasons, including: (a) ‘it will give him something to do and a means of expression, in the first days and weeks after his transfer”; (b) “he will be part of the community of artists, which will provide stability and social contacts; and (c) “there i s the possibility of earnings from his art.” She went further to state that “Mr. al Ansi is planning for more practical ways to make a living – he told me he would like a construction job, and among the many classes that he is taking here at GTMO is one about small business.”
In support of her arguments supporting al Ansi’s transfer, his private counsel argued that his: “family still has resources which they are completely willing to use to help their brother start a new life after Guantanamo , as shown by the statements the family submitted to the first board and this panel. His family will be a stabilizing force when he is transferred.
Further, she argued that his health situation supported transfer, though the details of his health situation were not revealed, as a portion of her letter was redacted. She wrote:
The second factor [supporting transfer] is his health. [Redacted][Redacted][Redacted][Redacted] He knows that managing these chronic conditions takes much time, effort and attention, and that he must follow a strict diet and exercise regimen , in addition to his medications.
She argued that if released, he will also have support of the Carter Center, founded by President Carter, and Reprieve’s Life After Guantanamo project, which has helped over three dozen former detainees.
Personal Representative Statement
al Ansi’s personal representative, who was a military officer in fatigues, read a simple, prepared 1-page statement that noted that
al-Ansi has intensely participated in the PRB process”, has “maintained a record of perfect attendance for meetings with his Personal Representative (PR) and Private Counsel (PC) despite the constant change in schedulling”, and that his “professional manner throughout all engagements with his PC and PR has not wavered.
The personal representative noted that:
He continues to enthusiastically maintain his compliant behavior with the Joint Task Force (JTF) Guard Force and continues to engage with the JTF Medical Staff in order to deal with chronic health issues. In addition, Mr. Al-Ansi has not ceased to passionately take advantage of the educational opportunities to include courses in Mathematics , Science, English, Spanish, Life Skills, Computers, Art, and recently started the Arab British Academy for higher education studies. Since July of 2016, he has created an additional 150 quality works of art. Seven additional works of art are included in his case submission. Recently, he has enrolled i n Small Project Management , Business Administration, Accounting and Ledgers classes.
Unlike other personal representatives in other cases, this Personal Representative did not say whether or not he believed that al Ansi is or is not a threat to the security of the United States”.
By George Edwards,
Professor of Law, Indiana University McKinney School of Law
Faculty Director (Founding), Guantanamo Bay Periodic Review Board (PRB) Project
Faculty Director (Founding), U.S. Military Commission Observation Project
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.
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.
The 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.
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)
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
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 — 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, 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 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 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.
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.
Haji Wali Mohammed, an Afghan money changer, seeks release from Guantanamo Bay
This morning an Afghan who traded currency with the Taliban formally asked the U.S. to release him from Guantanamo Bay after over 14 years of imprisonment.
Haji Wali Mohammad, who is referred to as “Wali Mohammed” or “Mr. Mohammed” by his U.S. Government personal representative and his private counsel, hopes that the PRB will find that he is not a threat to US national security, and that the U.S. Government will thus release him from Guantanamo Bay. A detainee may either be repatriated to his home country, or resettled to a third country.
There seems to be agreement across the board that Wali Mohammed operated a currency exchange business and conducted financial transactions in the 1990s, when the government of Afghanistan was under Taliban control, and that some of the transactions involved Taliban members or Taliban controlled entities, and there seems to be agreement that transactions with certain entities occurred before, during and after the Taliban was in control.
The U.S. government noted:
We assess with moderate confidence that AF-560 conducted financial transactions for Usama Bin Ladin in 1998 and 1999, either directly or through his ties to the Taliban, and was probably motivated by financial gain. We note identifying details for AF-560 have been corroborated, but there has been minimal reporting on AF-560’s transactions completed on behalf of Bin Ladin. Efforts to link AF-560 to Bin Ladin are complicated by several factors, including incomplete reporting, multiple individuals with AF-560’s name-Haji Wali Mohammad, and lack of post-capture reflections. AF-560 was captured on 24 January 2002.
The U.S. government continued:
AF-560 during his detention has never made statements clearly endorsing or supporting al·Qa’ida or other extremist ideology, but probably has a pragmatic view of the role the Taliban held in Afghanistan. He most likely judged that it was prudent to work with, rather than against, the Taliban Government in the 1990s. During his detention, AF-560 appears to have formed a more liberal view of politics in Afghanistan and has said the Taliban will have to change if they want to remain viable in the country, including changing their policy on women’s rights and education.
Countering, the Wali Mohammed’s private counsel contended:
Wali Mohammed’s business was currency exchange. He bought and sold currency in Pakistan and the UAE with the aim of capitalizing on differences in exchange rates. As he has freely admitted, in late 1997 and early 1998, he entered into a partnership to pursue such a currency arbitrage with the Central Bank of Afghanistan -then under the control of the Taliban government. As Wali Mohammed has said, and as an expert on his behalf confirmed ,such partnerships were commonplace before, during, and after the Taliban regime. Wali Mohammed described, and the expert confirms, the sudden and significant volatility in the value of the Pakistani rupee in 1998.
The result was a catastrophic loss -roughly a half-million of the $1.5 million the Central Bank had invested. After the Taliban government learned of the loss, investigators fired the head of the Central Bank, threatened Wali Mohammed with prison, actually imprisoned his cousin, and forced the entire loss on him – in violation of the terms of the deal. This is not the kind of treatment one would expect of someone who was part of or of any importance to the Taliban.
The disastrous failure of the Central Bank transaction also makes it implausible that Wali Mohammed conducted financial transactions for Osama Bin Ladin thereafter -leaving aside that Mr. Mohammed speaks little Arabic and bin Ladin spoke no Pashto. Two intelligence experts on behalf of Mr. Mohammed -one, the former Director of Human Intelligence Collection for the DIA; and the other, a former DIA intelligence analyst, identities expert, and, after the 9/11 attacks, a CIA contractor and charter member of the Terrorist Threat Integration Center, the National Counter Terrorism Center, and the Advanced Analytics Team -have shown, consistent with the Detainee Profile, that the identification of Mr. Mohammed is problematic .Even the late Taliban leader, Mullah Akhtar Mansour, reportedly carried a passport bearing the name “Wali Mohammed.”
This morning’s PRB had no representation by the Periodic Review Board Project (PRBP) of the Indiana University McKinney School of Law. To date, I am the sole individual from the PRBP monitoring PRBs on site, and I have attended several PRBs over the last several months. Postings about these PRBs can be found here.
We nominated Mr. Jeffrey Meding, a McKinney Juris Doctor graduate, to attend today’s hearings, but his request to attend and monitor has not been granted. We are in discussions with the Periodic Review Secretariat (www.prs.mil) further to seek permission for Mr. Meding to attend PRBs, and for others affiliated with our PRB project (PRBP) to attend, particularly when I am not able to attend.
As it happens, in any event, I did not receive my usual clearance from the Pentagon to attend today’s PRB, though I submitted my request to attend last week. Typically, a day or so before the PRB, the Pentagon sends cleared observers an e-mail with details about permissions, logistics, and rules. I did not receive such and e-mail yesterday before this morning’s (25th) scheduled PRB.
We look forward to clarity in the process, and full opportunities to cover PRBs, under one or more of the various categories of persons / entities permitted to observe PRBs – whether media, non-media NGO, non-media individual.
As I did not attend this morning’s hearings, at this point I do not know whether Wali Mohammed actually attended his PRB this morning, or indeed whether the PRB went forward as scheduled. I cannot comment on his apparent demeanor, his looks or clothing, his interaction or non-interaction with the others in the room, whether there were any technical or other difficulties, or anything else of note regarding this PRB. I cannot comment on the efficiency of our usual Pentagon escorts this morning, though it is likely that all went like clockwork, as is typical, from pickup at the Pentagon’s Visitor Center, through badge clearances, winding-hall walking, and escort to the Pentagon’s exit post-hearing.
But as for the PRB hearings themselves, reading the text of submitted documents before the hearings does not provide a full picture of the hearing. Reading transcripts post-hearings does not provide a full picture of the hearing. Reading news reports or postings by NGOs also does not offer a full picture of the hearing. Short of being present in the PRB room at Guantanamo Bay, the best place to observe PRB hearings is in the closed, secure conference room at the Pentagon. In that room, you can see and hear in a way that is more helpful than just reading.
Mr. Meding’s PRB participation on behalf of the McKinney Law School’s PBRP was approved by the MCOP Advisory Council. Furthermore, the Office of General Counsel of Indiana University cleared our Pentagon travelers for PRB purposes. We now await the Pentagon’s grant of permission for us to send IU McKinney Affiliates to observe PRBs at the Pentagon.
Again, we hope that we receive permission to have full representation at the PRBs that are being broadcast to the Pentagon, typically on Tuesday and Thursday mornings.
In July 2016, Guantanamo Bay Periodic Review Boards (PRBs) cleared three detainees for release, and found that a fourth detainee posed a continuing threat to the national security of the United States and would not be cleared for release.
These detainees, each of whom has each been held at Guantanamo Bay since 2002, each had argued in separate PRB hearings that he should was not a threat, and that he should be repatriated to his home country or resettled in a third country.
As an example of a PRB decision in which a detainee is cleared, I quote below the full text of the PRB decision in the case of Shawqi Awad Balzuhair (ISN 838)
The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee is no longer 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’s degree of involvement and significance in extremist activities has been reassessed to be that of a low-level fighter. The Board also noted the detainee’s lack of expression of support for extremist ideologies, the detainee’s compliance record at Guantanamo, and the detainee’s lack of ongoing extremist ties.
The Board recommends transfer, with the appropriate security assurances as negotiated by the Special Envoys and agreed to by relevant USG departments and agencies.
The PRB decision in the case of Said bin Brahim bin Umran Bakush of Algeria (denial of release) is found here:
Today I traveled to Ft. Meade, Maryland to observe pre-trial hearings in the criminal case against 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon. The hearings are being broadcast live from Guantanamo Bay, Cuba, into the Post Theater at the Fort Meade Army Base, and can be viewed there by media, human rights non-governmental organizations (NGOs), victims and victims’ families, and other stakeholders.
I traveled there as an official NGO Observer sponsored by the Military Commission Observation Project (MCOP), which Professor George Edwards founded at Indiana University McKinney School of Law. Our Project, which is also referred to as the Gitmo Observer, has sent dozens of IU McKinney Affiliates — faculty, staff, students and graduates — to Guantanamo Bay, Cuba and Ft. Meade to attend, observe, analyze, critique and report on these hearings.
My trip to Maryland – Sunday
I flew to Maryland last night, and had time to re-review the wealth of background material the Project provided. One important resource is the Guantanamo Bay Fair Trial Manual – with lead author Professor Edwards, and whose researchers have included many IU McKinney affiliates. The Manual provides significant information — general and basic, as well as highly specialized information — about the military commissions. It summarizes the applicable law, explains the charges, identifies the individuals and entities who have rights and interests associated with the tribunal, describes a plan that Observes might follow as they carry out their observation mission, and even provides a chart of a who’s who in the courtroom. The Manual is a must read for anyone interested in Guantanamo Bay hearings.
We are in front of the McGill Training Center, the new site for Guantanamo video viewing.
Closed hearing – Monday morning
Early this morning I met Professor Edwards at the hotel, and discussed final details before we went to the army base, which happens to be the home of the National Security Agency (NSA) and other intelligence entities.
We were forced to modify our plans to observe hearings of Khalid Shaikh Mohammad (who was waterboarded 183 times) and the other 4 defendants accused of planning the September 11th attacks. We learned that the military judge decided that today’s hearings would be “closed”, meaning that Observers were not permitted to observe. I was disappointed that I would not have a chance to witness today’s hearings. But, it was still a very worthwhile trip.
What we did at Ft. Meade – hurdles & highlights
The day had highlights and hurdles. I’ll mention some below.
First, Fort Meade recently instituted security procedures that require new visitors to stop at the Visitor Center at the base’s Main Gate (Reece Road Gate) and collect a hard plastic badge. Ordinarily Observers would submit their personal information 10 days before they arrive for a hearing, and can pick up their sturdy badges quickly at the Visitor Center. These procedures apply not only to military commission observers, but also to anyone with business on the base, and includes civilians visiting family.
We arrived at the Visitor Center to pick up my badge. We had quite a wait. There were dozens of other people also seeking to get badges. I was grateful that Professor Edwards had a permanent Ft. Meade badge, which made it easier for me to get processed in. The good news is that once you get cleared, you can swipe your badge at any of the gates and drive onto the base, directly to the viewing site.
A word to the wise for IU McKinney Affiliates who plan to observe Guantanamo Bay hearings at Fort Meade: Bring your drivers’ license and passport, and arrive early.
The Guantanamo Bay Fair Trial Manual is an invaluable tool to help prepare for an Observation mission.
Second, after I gained clearance to enter the base, Professor Edwards and I went to the McGill Training Center, which will soon be the new permanent site for video observations of Guantanamo proceedings. (Until now, all the video hearings were broadcast into a large auditorium at the Post Theater, where they show feature films in the evenings and on weekends.) A staff member escorted Professor Edwards and me through the training center, and explained that the site change had been made for several reasons, including the ability to move hearings to a variety of different rooms to enhance security by keeping exact screening locations unknown until the hearings take place. Most of the rooms at the training center are also much smaller than the Post Theater auditorium, which may make sense since at times only a small number of Observers attend hearings on the base.
Outside the Post Theater, where “Central Intelligence” was being screened — $6.00 for adults, and $3.50 for children.
Third, Professor Edwards and I went by the Post Theater, where many IU McKinney Affiliates have viewed Guantanamo proceedings. Unfortunately, the doors were locked and we couldn’t go inside. But, based on what I have heard about the actual theater – that happens to be showing the PG film “Central Intelligence” now (see photo) – it’s very much like a Broadway theater with a big screen set up on the stage to show the Guantanamo Bay feed.
Fourth, Professor Edwards was able to brief me on the status of the Khalid Shaikh Mohammad 9/11 hearings, the substance of some of the upcoming motion hearings that I had hoped to observe today, other cases pending for trial, and the one convicted detainee who is awaiting sentencing. He also briefed me on the Periodic Review Board (PRB) that he observed at the Pentagon on Thursday the 14th, in which a Libyan detainee asked the Board to send him back to Libya or to a third country for resettlement. That PRB observation is through the IU McKinney Periodic Review Board Project.
Fifth, it was good to tour the facilities mentioned above. It was also interesting to drive around the base, appreciate its size and the breadth of work performed there.
Another shot in front of the Post Theater
Conclusion
Although I was disappointed that I could not observe a hearing today, I am glad that I made the trip, and I am proud that the McKinney School of Law and our Military Commission Observation Project provides this very special opportunity to members of our community.
Every IU McKinney Affiliate – faculty, staff, student, graduate — is invited to register for the possibility of undertaking an Observer mission to Ft. Meade, or to Guantanamo Bay, Cuba, itself. Details about this process can be found here.
Dean Klein (right) and Professor Edwards at the Ft. Meade Commissary.
Andy Klein, dean of the Indiana University McKinney School of Law, traveled to Ft. Meade, Maryland to observe war crimes hearings broadcast live from Guantanamo Bay, Cuba. Dean Klein was an official Non-Governmental Organization (NGO) Observer, sponsored by IU McKinney’s Military Commission Observation Project (MCOP), that was founded by Professor George Edwards, who joined Dean Klein on this observation mission.
The Pentagon granted the IU McKinney project permission to send IU McKinney Affiliates — students, faculty, staff, and graduates — to Guantanamo Bay to view proceedings live and to Ft. Meade to view via secure video feed. Dean Klein is the most recent of the dozens of IU McKinney Affiliates selected for observation missions, during which they attend, observe, analyze, critique and report on these hearings.
Dean Klein & Professor Edwards at Ft. Meade’s Post Theater, where war crimes hearings from Guantanamo Bay are viewed during the day, and “Central Intelligence” and other movies are viewed at night.
This week’s pre-trial hearings, scheduled for 18 – 22 July, are in the criminal case against five alleged masterminds of and participants in the 9/11 attacks on the World Trade Center and Pentagon. They include Khalid Shaik Mohammed, who is the alleged chief architect of the 9/11 attacks, along with four others including alleged would-be hijackers who were prevented from participating due to visa denials and other reasons, men who allegedly transferred money for the flight training for hijackers, and men who otherwise assisted in the plot that resulted in almost 3,000 dead. Their charges include murder in violation of the laws of war and hijacking.
Typically, first time NGO Observers, such as Dean Klein, stop at the Ft. Meade Visitor Center to gain clearance and then pick up a badge to enter the base.
Dean Klein noted that though they arrived early to pick up his badge they had “quite a wait, made longer because they didn’t have my original paperwork submitted weeks ago and I had to re-register on the spot. Also, there were dozens of other people also seeking to get badges. Fortunately Professor Edwards already had his permanent Ft. Meade badge, which made it easier for me to get processed in.”
Dean Klein & Professor Edwards in front of the McGill Training Center, the new site for Guantanamo video viewing.
After the badging process, NGO Observers then travel to the base’s secure viewing site, which has been the Post Theater (that also shows feature films on weekends), but is shifting to the McGill Training Center, also on the base.
When Dean Klein and Professor Edwards arrived at the viewing center, it was confirmed that the military judge presiding over the 9/11 case had decided that today’s hearings would be “closed”, meaning that NGOs Observers were not permitted to observe. Both Dean Klein and Professor Edwards noted that despite the absence of an open hearing, the pair had a productive morning at Ft. Meade.
Dean Klein said “I was disappointed that today’s hearings were closed. But, coming to Ft. Meade has offered great insights into our Military Commission Observation Project, and the contributions of IU McKinney on the topic of rights and interests of all Guantanamo Bay stakeholders. Our trip to Ft. Meade was very worthwhile.”
Professor Edwards said “If the hearings had been open, Dean Klein and I would not have been able to tour facilities that would have been unavailable during an open session, and we would not have been able to talk with people who would have been otherwise engaged during an open hearing. Our behind-the-scenes experience at Ft. Meade was enlightening, and would not have been possible had we been watching video feed from Guantanamo that day”.
All IU McKinney Observers contribute to the Guantanamo Bay Fair Trial Manual, of which Professor Edwards is the main author, that provides significant information — general and basic, as well as highly specialized information — about the military commissions. The Manual also contains information about Guantanamo Bay Periodic Review Boards, special proceedings held at Guantanamo Bay and viewable on video at the Pentagon, during which Guantanamo detainees may request repatriation to their home country or resettlement in a third country.
Dean Klein reading a copy of the Guantanamo Bay Fair Trial Manual — Volume I.
The Manual summarizes the applicable law, explains the charges, identifies the individuals and entities who have rights and interests associated with the tribunal, describes a plan that Observes might follow as they carry out their observation mission, and even provides a chart of a who’s who in the courtroom.
Dean Klein said: The Manual is a must read for anyone interested in Guantanamo Bay hearings, and a special must read for anyone doing an Observation mission to Ft. Meade or Guantanamo Bay.”
Dean Klein summarized his Ft. Meade experience, and his recognition of Professor Edwards and his Guantanamo Bay work:
Although I was disappointed that I could not observe a hearing today, I am glad that I made the trip, and I am proud that the McKinney School of Law and our Military Commission Observation Project provides this very special opportunity to members of our community.
Professor Edwards noted that “every IU McKinney Affiliate – faculty, staff, student, graduate — is invited to register for the possibility of undertaking an Observer mission to Ft. Meade, or to Guantanamo Bay, Cuba, itself. Details about this process can be found on the IU McKinney website. We hope that our Affiliates may also be able to observe Periodic Review Boards at the Pentagon, and we will post notices if Pentagon observation opportunities become available to assist out Periodic Review Board Project”.
Yesterday, 7 July 2016, Adbul Rabbani requested a Guantanamo Bay “Periodic Review Board” to set him free, after almost a dozen years at the remote island prison.
Unfortunately, I was not permitted to attend live video of the hearing, that was broadcast into a secure building near the Pentagon, with such “public” hearings being open to select human rights organization representative, legal experts, and media. My application to attend these hearings is still pending. So, I cannot describe to you what Rabbani looks like, his demeanor, the manner in which he interacted with his Government-appointed Personal Representative or his Private Counsel (if in fact his private counsel was present), what the room looks like or how it is set up, whether Rabbani was shackled to the floor, or any other aspects or dynamics of the public portion of the hearing.
Instead, I post below 3 documents that the Pentagon posted on its website (www.prs.mil) after yesterday’s hearings. These documents shed some light into who the government believes Rabbani is and what the government believes Rabbani did, what his Personal Representative said during the hearing (I attach a written statement), and what his private counsel submitted (a written statement — again, I do not know whether the private counsel was present and read the statement, or whether it was submitted separately).
Rabbani’s brother, who is also incarcerated at Guantanamo Bay
Regarding documents, the Pentagon posted that at the request of Rabbani, his own written personal statement and the transcripts of the public portion of the hearing were not posted. Had I been permitted to be present at the hearing, I would have heard what Rabbani had to say in his personal statement, and I would have heard the interaction between and among participants (questions, answers, discussion). Now there is no way to know what Rabbani wrote or said in his plea that he is not a threat to the national security of the U.S. Based on the statement of the private counsel, it is possible that he requested to be sent to Saudi Arabia (Medina) where he has family, rather than Pakistan, where he first got involved in matters that ended up getting him to Guantanamo Bay. Also, we do not know whether in his written statement or in otherwise during the hearing the topic of came up of his brother, who is also incarcerated at Guantanamo Bay.
Here is the Government’s Summary of Unclassified Information on Rabbani:
What about other detainee written statements & public PRB hearing transcripts?
Other detainee written statements appear on http://www.prs.mil, and other PRB public session transcripts also appear. Public documents from other PRBs will be posted on this site after I observe a PRB in which those documents will be released. That way, readers can get a fuller picture of the PRB and the PRB process — from documents to personal observations of the proceedings, with the personalities and process being more accurately and comprehensively described.
Matthew Kubal as a Program in International Human Rights Law Intern at the Independent Jamaica Council for Human Rights in June of 2007
I am a graduate of the Indiana University McKinney School of Law, and have a long history of working with the school’s Program in International Human Rights Law both while I was a student and after I graduated. I am honored that now, as an attorney in Indianapolis, the Program nominated me to monitor the U.S. Military Commission hearings at Guantanamo Bay, Cuba. The pentagon confirmed my nomination to travel to Guantanamo Bay from 22 – 26 February 2016 to monitor the case against 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon (commonly known as the “9/11 case”).
Another graduate of the McKinney law school, Mr. Paul Schilling, is at Guantanamo Bay this week monitoring this same case. Professor George Edwards, who founded the Program in International Human Rights Law, is traveling to Ft. Meade, Maryland this week and next week to monitor the Guantanamo Bay hearings that are being streamed by secure video-link into the Ft. Meade military base. You can read their blog posts here at http://www.GitmoObserver.com.
Khalid Shaikh Mohammed, one of the 5 defendents in the 9/11 case
Will the hearings go forward next week?
This is my fourth nomination to travel to Guantanamo Bay, Cuba to monitor Military Commissions live. In 2015, I was nominated on three occasions: twice to observe hearings in the 9/11 case and once to observe hearings in the case against al-Nashiri, who is charged with masterminding the attack on the U.S.S. Cole off the coast of Yemen in 2000. All of these hearing sessions were cancelled prior to my departure. I am well aware of the possibility that this coming week’s 9/11 hearings might be delayed or cancelled as well.
Logistics and other challenges
The Military Commission Hearings are a massive logistical undertaking. Each hearing requires coordinating and transporting nearly all of the persons involved in running the court and the hearings (attorneys, court staff, press, victims and their families, security, NGO observers and so on) from Andrews Air Force Base just outside of Washington D.C. to Guantanamo Bay, Cuba. Everybody boards the plane at Andrews at the beginning of the hearing week, and at the end of the hearings, everybody gets back on the plane in Cuba and flies back to Andrews. Each government charter or military flight to Guantanamo for the Military Commission hearings reportedly costs $90,000 per flight.
Would it be less costly for the 5 defendants to be flown to the U.S.? Well, the defendants remain in Guantanamo as they are barred by federal law from being transported to any of the 50 states or the District of Columbia for any reason.
The challenges of creating a new justice system lead to delays that would otherwise not be necessary in a state, federal or military court. In Military Commission hearings some argue that certain rules and procedures of the court, rights of the defendants, evidentiary issues, etc. are more likely to be novel where no standard or precedent has been firmly established. Compared to their contemporaries in the United States military, state and federal court systems, attorneys, judges and court staff working in the Military Commission are blazing a trail through uncharted terrain and such a journey involves many uncertainties that serve to delay the judicial process.
An example is a story I was recently told where a defendant at the Military Commission hearings was requesting to dismiss his counsel and represent himself. In the US Federal or State Courts, the judge would attempt to ascertain whether the defendant understands what he is getting into, whether he was improperly influenced and whether he understands his rights. In the case of the Military Commission, the defendant’s attorney was unable to advise the client as to his rights because no one had previously defined what those rights would be. The hearings had to be delayed for a period of time while the interested parties decided what rights the defendant actually had (or at least what he needed to be advised of in order to be sufficiently informed regarding his decision to represent himself). In an Indiana state court, no such inordinate delay would be required as such a process is routine and has been well-established over the course of decades of jurisprudence.
Bureaucracy. Secrecy.
Bureaucracy and the desire for secrecy play a role in delaying the hearings. The Military Commissions and the operation of Camp Justice (where the hearings take place) involve a broad array of domestic government agencies from each branch of the armed forces, to the executive branch of government to the the United States Court of Appeals, etc. (a comprehensive list of stakeholders domestically and internationally would be quite long indeed).
Each agency involves itself for different, sometimes competing, reasons and each agency has its own bureaucratic rules and hierarchies that must be navigated. In addition, much of the evidence, the defendants themselves and many of the court filings require a security clearance to view or interact with. A good example of a bureaucratic delay is in the Hadi al Iraqi case which is currently delayed “until a time to be determined based on the detailing of counsel for this accused” after Hadi fired his attorney in late September, 2015. The replacement attorney must obtain a security clearance prior to speaking to Hadi. The process for approving the new attorney’s required security clearances may take 6 months or more. Even after receiving his or her clearance, the attorneys will then need to meet with Hadi (requiring some or all of the travel and other logistical challenges I mentioned earlier) and be given sufficient time to prepare before hearings may resume.
Matthew Kubal
As a monitor, I will attend, observe, analyze, critique and report on the Military Commission hearings. I will report my observations to this blog and will take part in the continued writing and editing of the draft Guantanamo Bay Fair Trial Manual in hopes that it will serve as a guide for future Guantanamo Bay observers and anyone else interested in the hearings and trials.
Many of the ideas above are based on my memory and understanding of a recent briefing at the Indiana University McKinney School of Law provided by Indianapolis attorney Richard Kammen (who represents Mr. Abd al-Rahim al-Nashiri). The foregoing is my opinion in my own personal capacity, and my blog posts and other comments are my own and do not necessarily reflect those of the Indiana University McKinney School of Law or Mr. Kammen.
Paul Schilling at Camp Justice. The U.S. flag is flying at 1/2 mast to honor the memory of U.S. Supreme Court Associate Justice Antonin Scalia. (Photo taken 16 February 2016)
Our Guantanamo Bay tents are about 50 yards from the entrance to the war crimes courtroom complex that we walked to at 8:15 a.m. today, Tuesday, 16 February 2016. We had to pass through airport-like security to get into the courtroom. Today’s hearings are in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon.
The Observers sit in the gallery, with a thick protective glass separating our seating area from the defendants, counsel, judge and others in the main part of the courtroom. We stare through the glass at the backs of most of those of the courtroom, facing the judge.
We can see all that happens in the courtroom, as we peer through the thick glass. But our room is soundproof, and we can only hear what’s happening in court when TV screens with speakers are turned on, hanging in front of the glass gallery wall, piping in the audio.
Different sections of the gallery are reserved for the media, NGO Observers, and victims and their families (whose section can be cordoned off by a curtain should they wish). Military personnel may also take some of the gallery seats.
After we were all seated, the 5 accused entered the courtroom.
Each of these 5 accused has a civilian legal counsel and military counsel (Judge Adjutant General (“JAG”) attorneys). Since this is a death penalty case, the Military Commission Act requires that the accused have an attorney that has previous death penalty case experience. Civilian counsel for these 5 defendants have death penalty experience, and they are referred to as “Learned counsel”.
Courtroom Layout
Facing the judge on the left hand side of the courtroom are 5 tables, one for each of the accused, their civilian and military counsel, an interpreter and others on the defense team. In the front and center of the courtroom is the military judge, Judge Pohl. Judge Pohl sits elevated on the bench with a court security officer to his right (the left front of the courtroom), the witness stand to his left (the right front of the courtroom) with the court reporters located below, in front of the judge. A speakers’ podium sits front and center of the judge and courtroom. The prosecution sits on the right side of the courtroom. General Mark Martins is the Chief Prosecutor for all the U.S. Military Commissions. We was present in court today and was seated with and assisted by attorneys from the Department of Justice and the Department of Defense, interpreters and 3 JAG officers. To the far right of the courtroom is the jury box. Since these hearings are for pre-trial discovery motions, there is no panel present. Military Police (“MP”) personnel are located to the far left of the courtroom, along the left wall, and are seated there after escorting the defendants into the courtroom. The are approximately 2-3 MPs for each defendant. Paralegals, interpreters, MPs and other court personnel are located in the courtroom and may move about freely.
My general observations
As Observers, behind the glass, one of the ways we can best observe the proceedings is by closely observing the interactions of the players. Here are some of my observations.
All 5 accused wore glasses entering the court and removed them as the proceeding went on
Kalid Sheikh Mohammad’s beard was partly black, partly white and partly orange. It looked like it was dyed.
All of the accused interacted with their attorneys. They shook hands, smiled and appeared to listen to their attorneys. In fact, the interaction was similar to what you would expect to see between a defendant and his attorney in a criminal trial in a regular U.S. courtroom.
Two of the accused, Ali Aziz Ali and Mustafa al Hawsawi, spent much of today’s short court session talking to one another.
I thought Judge Pohl did an excellent job maintaining courtroom order and decorum. He set out to explain things to the accused, and apparently sought to understand any concerns raised by the accused or counsel. He appeared to ask pertinent, difficult questions. It seemed clear to me that he was in control of the hearing and has respect of counsel on both sides.
The Observers are viewing the hearing in real-time, through the glass. However, the audio is delayed 40 seconds, for security reasons we were told. This can make for awkward viewing. For instance, we can see the personnel in the court stand up when the Judge enters. However, we do not hear the “all rise” command until almost a minute has passed. It can also make it difficult to determine when someone has finished speaking. We can see them depart the podium, but we are still hearing their final remarks on the audio feed.
Proceedings
Today’s hearing did not begin until 9:15, about 15 minutes behind schedule. Once the Judge was seated, he took the appearance of the parties and advised the accused of certain rights that they have. He explained that the accused had a right to be present and it was their personal choice to attend or leave. Most of the gallery was waiting in anticipation to hear the accused speak. Each of the accused affirmed orally that they understood their rights as explained by the judge. As Observers, we realized this is one of the few occasions that we may have to actually hear the accused speak, since during most hearings traditionally the lawyers and the judge do the talking. The Judge explained what motions were going to be heard and asked defense counsel if there were any issues.
One of the defendants, Walid bin-Attash, expressed his desire to dismiss his learned counsel and military counsel. From the testimony received and the judge’s statements, it appears that bin-Attash sent a letter (in arabic) to the Judge. When questioned about the letter, bin-Attash stated that he did not trust his attorney and wished for new counsel. It is my understanding that his lead attorney, Cheryl Bormann has been on the case since the beginning. bin-Attash also expressed his intent to dismiss his other counsel, Michael Schwartz. Schwartz was his previous military attorney. Based on the testimony of his new military attorney, US Army Major Michael Seeger and bin-Attash, Seeger has only been on the case a very short period of time. The Judge questioned counsel regarding an attorney’s duties to his/her client. The Judge also questioned the accused regarding his intentions and whether he wished to retain Seeger. bin-Attash also provided the court with a second hand-written letter at the hearings, expressing his desire for new counsel.
The court allowed for input from other defense counsel and the prosecution.
After about an hour and a half, the court went into recess until tomorrow. The Judge decided to have the letters translated and he would reconsider the request to dismiss counsel tomorrow.
For now, we are scheduled for a full day of hearings tomorrow, with the total hearing time today being only about 90 minutes.
Paul Schilling, JD graduate, Indiana University McKinney School of Law
(Published by Professor George Edwards on behalf of Mr. Shilling.)
Camp Justice — Where we are staying during our week at GTMO. Photo by Catherine Lemmer, IU McKinney School of Law)
Our flight to Guantanamo Bay was delayed leaving Andrews Air Force Base. We arrived at Guantanamo after a 3 hour flight. We were processed through the arrival gates and loaded a ferry to the main post. I found it interesting that all of the victims’ families, defense counsel, prosecutors, media, court stenographers and NGOs traveled on the same flight.
Our group of NGO Observers is staying at Camp Justice. Camp Justice is essentially rows of Quanset hut type tents. Our tents are air conditioned, with a 6-8 small bunks. We have a refrigerator, lights and electricity in all of the tents. Bathroom (latrine) tents and shower tents are located nearby. We were given a short period of time to get settled in. We then headed to the security office to obtain our badges. Badges are required for all NGO Observers, media, and others when occupying Camp Justice. We were given a short briefing regarding some of the rules and conditions. Our cell phones will not work (phone calling cards are available). Wi-Fi is very limited and available on some hotspots on the main post. We can, however, buy internet access through an Ethernet connection. It is slow, but it works.
One of our Camp Justice tents.
We later took a tour of the main base. And, as the highlight of the evening, we were invited to a barbeque with some of the defense counsel. When asked about the volume of filings in the case, one attorney remarked that the 9/11 hearings have over 11,000 pages of transcript and over 20,000 pages of motions. We also learned that the public transcripts are usually available online within 24 hours. It was an opportunity for us to talk to the counsel, as attorneys, and get their input on some of the questions we had.
On a sad note, we learned of the passing of Supreme Court Justice Antonin Scalia, when one of our NGO attorneys drew our attention to the CNN headline.
There are no hearings scheduled for tomorrow. Sunday is Valentine’s Day. The dining facility will host a Valentine’s Day brunch. We are scheduled to tour the lighthouse and receive a briefing from Brigadier General Martins, the Chief Prosecutor of the US Military Commissions.
I recognize that I am the eyes and ears into Guantanamo Bay and the Military Commissions for many people in Indiana and elsewhere who will not have the opportunity to visit this base. In upcoming blogs I will report more on the substance of our monitoring work, as well as my other experiences here in Cuba.
Paul Schilling
Indiana University McKinney School of Law, JD Graduate
Indiana Deputy Attorney Geberal (posting in personal capacity)
Main Gate of Ft. Meade, where I am scheduled to attend hearings this coming week.
In a few days, I will travel to Ft. Meade in Maryland to observe, analyze, and report on the upcoming hearings for Khalid Shaik Mohammad and 4 other alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. The U.S. Government has alleged that Mohammed was the “principal architect of the 9/11 attacks”, as reported by the 9/11 commission report. While at Ft. Meade, I will be viewing a secure live feed that links directly to Guantanamo Bay, Cuba, where the defendants have been detained since at least 2006.
My role with the MCOP
I have been participating in the IU McKinney School of Law’s Military Commission Observation Project (MCOP) program for over a year now. I have had the opportunity to research on our Guantanamo Bay Fair Trial Manual, which observers and others can use to help them ascertain whether the rights and interests of all stakeholders have been afforded to them. The Manual examines rights and interests not only of the defendants, but also of the prosecution, victims and their families, the media, observers / monitors, and others.
I have also registered for multiple trips to Guantanamo Bay to view hearings live in the courtroom. However, all of those sets of hearings were cancelled in the days prior my departure. The repeated delays have given me a sense of the monumentally sluggish pace at which these trials move.
Who am I?
I am a 3L law student at IU McKinney, and am set to graduate in December 2015. Until recently I was a human rights intern with the Universal Rights Group, which is a Human Rights think tank in Geneva, Switzerland. My ongoing interest in the Guantanamo Bay is driven in large part by my passion for human rights work, combined with my ongoing interest in criminal law.
Luke Purdy in front of the UN Building (Palais des Nations) in Geneva, Switzerland (Fall 2015).
Next week’s hearings
I am particularly excited about the fact that judge is scheduled to engage in a colloquy with the defendants on Monday morning the 7th, which will give me a chance to view and report on the spoken words of the accused.
I am also interested to hear evidence/testimony on the defendant’s request to prevent female guards from having direct contact with the defendant for religious reasons.
The hearings are scheduled to begin on Monday, December 7 and run until Friday the 11th. I will continue to blog about my observations at the base. I am expected to be joined at Ft. Meade by IU Affiliates Bob Masbaum (a J.D. graduate) and Professor George Edwards (founder of the Military Commission Observation Project). IU McKinney Professor Catherine Lemmer, who is an international librarian, is scheduled to travel to Guantanamo Bay this weekend to attend these 9/11 hearings live.
By: Luke Purdy, 3L, Indiana University Robert H. McKinney School of Law
Right to left — Mr. Tex Boonjue, Ms. Hee Jong Choi, and me. We’re standing in front of the Post Theater at Ft. Meade.
I was at Ft. Meade, Maryland today to monitor hearings in the Guantanamo Bay Military Commission case against an alleged high-ranking al Qaeda member, Hadi al Iraqi. Hadi faces war crimes charges in the court, located in a remote area of Cuba. The U.S. military broadcasts the hearings live to a Ft. Meade base movie theater (the Post Theater) via a secure video-link.
Indiana students at Ft. Meade
I was joined by two Indiana University McKinney School of Law students, both of whom have strong interests in human rights and international criminal law. They are both representatives of Indiana’s Military Commission Observation Project (MCOP).
Ms. Hee Jong Choi is a rising third year student who is an intern in Indiana’s Program in International Human Rights Law. She has been working on North Korean human rights issues, while she was based in South Korea for the first half of the summer, and while based in Washington, DC at an NGO (HRNK – The Committee for Human Rights in North Korea) for the second half of the summer.
Fort Meade’s Post Theater is screening Guantanamo Bay war crimes hearings during the day, and San Andreas in the evenings.
Defendant’s opportunity to speak today – Conflict of interest
Today’s hearings were notable, in that the defendant had an opportunity to speak more than defendants typically speak at military commission hearings. Typically, at the beginning of a hearing week, the military judge will ask the defendant whether the defendant understands his rights. The judge lists our numerous rights, and the defendant is given a chance to answer as to his understanding of those rights. Generally, after that, the lawyers do the rest of the talking, along with the judge.
Today, an issue was presented regarding the possibility that the lawyer who represented Hadi for a year may have a conflict of interest that could have a negative impact on Hadi. The judge asked Hadi series of questions, in open court on the record, and Hadi replied. Hadi and the judge entered into a discussion about these issues.
Hearings suspended, again
Ultimately, due to questions concerning the possible conflict, the judge suspended the hearings, indefinitely.
The hearings for July 2015 had been scheduled for two weeks, beginning Monday, 20 July. The night before, this conflict issue was raised in special conference, and the judge postponed the hearings until today, Wednesday the 22nd. Today, we had about 3 hours of court time, including the time that the defendant and the judge conversed, and including pauses and a long break.
The two weeks of hearings could be over as of lunch time today.
In the meantime, many dozens of people associated with the hearings boarded a plane this past Sunday at Andrews Air Force Base, bound for 2 weeks at Guantanamo Bay. The plane may be forced to return to Andrews more than a week early, with only 3 hours of court.
At the Ft. Meade Commissary today
Who else was at Ft. Meade today?
Also in the Post Theater observing today’s hearings were 7 law student interns from the Office of the Chief Prosecutor of the Military Commissions, along with one of their supervisors, Major Chris Hartley (Army JAG, International Law Advisor). Two law student interns from the Human Rights First National Security section were present, as was another gentleman who did not identify himself. A DoD contractor was there to help ensure that no one brought cell phones into the Theater. And a technician and another administrator popped in from time to time to check up on things.
It was an early lunch day at Ft. Meade.
Greg Loyd, our Indiana McKinney representative who is in Guantanamo Bay this week, reported that there is plenty to keep him and observers busy down there, even with the hearings being suspended. He, and the rest of us, are spending time working on the Guantanamo Bay Fair Trial Manual.
I’m on the left, with Professor George Edwards who founded the Military Commission Observation Project at Indiana. This photo was taken in Washington, DC the day before my departure for Guantanamo.
I’m set this morning to go to Guantanamo Bay to monitor Military Commission hearings. On my plane, which leaves from Andrews Air Force Base, will be the judge, prosecution and defense lawyers, victims’ families, press, court reporters and interpreters, and other hearing observers. For 10 days we will be involved in pre-trial hearing in a case against alleged war criminal al-Hadi al-Iraqi, an alleged high-ranking al Qaeda member.
I graduated from Indiana’s law school over a decade ago, and I have worked as both a defense attorney and a Deputy Prosecuting Attorney. I have worked with many categories of individuals emotionally vested in cases – criminal defendants scared for their future due to charges against them, detectives who sink their nights and days investigating a case, family members who grieve for a loved one, and fellow attorneys who spend sleepless nights worrying upcoming hearings. I hope this balanced lense will aid me in better understanding each Guantanamo Bay stakeholder’s point of view and lead to reporting that readers find helpful.
My Role
As an Observer, I will watch, listen, and ask questions about the rights of stakeholders in the al-Hadi al-Iraqi case. Obviously, one such stakeholder is the defendant who has significant rights and interests in the matter. Yet, so too do the families of victims. The press. NGO’s. Yes, even the prosecution. When evaluating the military commissions, it is important to consider not just the rights of any one stakeholder, regardless of who or what this stakeholder is, but rather, the analysis must be global in nature. Given that much has been written about the defendant’s rights, I will try to pay close attention to another stakeholder — the rights of the Guantanamo Bay prosecution — in an effort to contribute to a full discussion.
A helpful starting point is to ensure an understanding of the charges filed against a defendant.
Abd al-Hadi al-Iraqi
What are “Charges”?
Charges are the formal method that the government uses to accuse an individual (the defendant) with having committed a crime. The charges are not evidence and the filing of a charge does not mean that the defendant is guilty. Rather, it is the Government’s responsibility to prove at trial that the defendant is guilty. The Government filed fives charges against Hadi al-Iraqi.
Charges Against Hadi al Iraqi
Here is a brief explanation of the charges filed against the defendant.
Denying Quarter
In short, the Government alleges that Hadi al Iraqi ordered his combat forces in Afghanistan and Pakistan that when they engaged in combat, they were to take no prisoners, even if the opposing forces attempted to surrender.
Attacking Protected Property
Here, the Government alleges that the defendant attacked a military medical helicopter as it attempted to evacuate a U.S. military member from a battlefield and that the defendant knew the helicopter was a medical helicopter.
Using Treachery or Perfidy
The Government asserts that the defendant detonated explosives in a vehicles that killed and injured German, Canadian, British, and Estonian military personnel.
Attempted Use of Treachery or Perfidy
Hadi al-Iraqi is charged in this count with attempting to detonate explosives in a vehicle to kill or injure U.S. military members.
Conspiracy
The Government contends that the defendant entered into an agreement with Usama bin Laden and others to commit terrorism, denying quarter, and murder (among other acts), and that he took at least one step to accomplish the purpose of the agreement.
Conclusion
I’m looking forward to monitoring the upcoming hearings. In applying my experiences, I hope to share a thoughtful analysis regarding my observations at Guantanamo Bay that contributes to the exploration of the rights of all stakeholders.
Mr. Greg Loyd (left) & Professor in Washington, DC on the eve of Mr. Loyd’s departure for Guantanamo Bay hearings in the case against Hadi al Iraqi. Professor Edwards will monitor the same hearings at a secure location at Ft. Meade, Maryland, beginning Monday, 20 July 2015.
Greg Loyd will fly to Guantanamo Bay, Cuba to monitor hearings in the military commission case again Hadi al Iraqi. Professor George Edwards will monitor those same hearings via a secure video-link at Ft. Meade, Maryland.
Mr. Loyd, who is a graduate of the Indiana University McKinney School of Law, is representing the law school’s Military Commission Observation Project (MCOP), founded by Professor Edwards. Three Indiana students and graduates will join Professor Edwards at Ft. Meade for the hearings, that commence Monday, 20 July 2015.
Hadi al-Iraqi
Who is the defendant?
The pre-trial hearings are in the case against Hadi al Iraqi, who is an alleged high ranking member of al Qaeda. He is charged with being an al Qaeda liaison to the Taliban, to al Qaeda in Iraq, and to other affiliated groups. Professor Edwards was in the courtroom at Guantanamo Bay in the 2014 summer when Hadi al Iraqi was arraigned on these charges.
The flight to Guantanamo Bay & drive to Ft. Meade
Mr. Loyd is scheduled to report to Andrews Air Force Base on Sunday, 19 July 2015, for his flight to Guantanamo Bay. Professor Edwards and the other Indiana monitors are scheduled to drive to Ft. Meade early Monday morning for the hearings. While Mr. Loyd will be in the Guantanamo courtroom, the Ft. Meade viewers will witness the proceedings live by video.
Blogging
All Indiana monitors will be posting blog entries about their observations. They are all using the Guantanamo Bay Fair Trial Manualto help them assess whether in their opinion, all stakeholders are receiving the fair trial to which they are entitled. The defendants are entitled to a fair trial, and so too is the prosecution. Other stakeholders with rights and interests include the media, the U.S. an international public, and the victims and victims’ families.
What Hearings will I monitor?
The 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.
