Tomorrow morning at approximately 4:45 AM EST, I will wake up in the comfort of my Upper Marlboro, Maryland hotel room to begin my journey to the beautiful country of Cuba. While embarking on a journey to the exquisite Cuban beaches may generate an illusion of a tropical vacation, my ultimate destination is Naval Station Guantanamo Bay (NSGB) – also known as “Gitmo.”
Thirty-nine men remain imprisoned at Guantanamo, many apprehended almost two decades, following 9/11 and the initiation of the “War on Terror.” One such prisoner is a Saudi Arabian named Abd al-Rahim al-Nashiri, the alleged mastermind of the U.S.S. Cole Bombing.
It is al-Nashiri’s hearing(s) that I am scheduled to attend during the week of 26 September 2021 – 2 October 2021 through the Military Commission Observations Project (MCOP), an Indiana University Robert H. McKinney School of Law Program. Through MCOP, I have been nominated as an NGO Observer, and my mission is to attend, observe, be seen, analyze, critique, and publish materials on the al-Nashiri hearings.
My name is Analiese W. Smith, and I am a third-year law student at Indiana University McKinney School of Law in Indianapolis, Indiana. I was born and raised in Signal Mountain, Tennessee, right outside of Chattanooga. At the ripe age of eighteen, I packed my bags and moved to the Midwest to pursue my undergraduate degree at Indiana University Bloomington, where I ultimately obtained a Bachelor of Science in Public Affairs (BSPA) in Law and Public Policy, a minor in Mandarin Chinese, and a Business Foundations Certificate. It was in the last year of my undergraduate degree that my desire to attend law school emerged.
I began law school at Indiana University McKinney School of Law in August 2019 and quickly learned of the school’s Program in International Human Rights Law (PIHRL), founded and directed by Professor George E. Edwards. My interest in the PIHRL inspired me to enroll in multiple courses taught by Professor Edwards, namely International Law and International Criminal Law. As a student in International Criminal Law and then, later, as a PIHRL Research Assistant, I have worked on teams to conduct research and write of Guantanamo prisoners’ fair trial rights, work that has ultimately contributed to the submission of Universal Periodic Reviews of the United States to the United Nations regarding Guantanamo Bay prisoners’ rights.
In addition to my educational background and experiences through PIHRL, I am also a member of the United States Army Reserves. I was commissioned as a Military Intelligence Officer on May 6, 2018 through the Indiana University Army ROTC Program. From there, I served as the Battalion Intelligence Officer of the 373rd Quartermaster Battalion, conducting intelligence support to petroleum logistics operations. I recently transitioned positions from that of the Company Executive Officer to Company Commander of the 1-415th Infantry Regiment (Det 2), 1st Battalion, Bravo Company.
Given my background in human rights and national security, embarking on my journey to Gitmo tomorrow is of the utmost importance to me. Despite my background, I travel to Gitmo tomorrow to execute one mission: to attend, observe, be seen, analyze, critique, and publish materials on the al-Nashiri hearings from the objective and neutral perspective of an MCOP NGO Observer.
Destination Gitmo awaits.
Analiese W. Smith
NGO Observer, Military Commission Observation Project (MCOP)
This weekend I will be traveling to Joint Base Andrews in order to board a military flight to the Guantanamo Bay Naval Station in Cuba to monitor the U.S. Military Commission case against the five men accused of plotting the 9/11 attacks on the World Trade Center and the Pentagon.
I am from Waxhaw, North Carolina and graduated in 2018 from Roanoke College in Salem, Virginia with a degree in International Relations and a concentration in Peace and Justice Studies. I had always known that I wanted to pursue a career in international human rights law, and I originally choose IU McKinney for law school because of PIHRL.
Since arriving at IU McKinney in the Fall of 2018, I have taken most of the courses covering human rights and international law offered by the law school. I was first introduced to opportunities through PIHRL as a student in Professor Edwards’ International and International Criminal Law classes. My involvement with PIHRL has allowed me to have experiences with clients and practitioners before the Inter-American Commission on Human Rights and the United Nations Human Rights Council. My experiences have also involved working with legal stakeholders in Guantanamo Bay and the Military Commissions Defense Organization. These experiences often involved the tumultuous past, and present, of Guantanamo Bay and the calls to ensure the right to a fair trial, the right to humane treatment, and the prohibition of torture and the associated right to receive rehabilitation.
Subsequent posts will discuss the five co-defendants in this case: Khalid Sheikh Mohammad, Walid Salid Mubarek Bin ‘Attash, Ali Abdul Aziz Ali, Ramzi bin al Shibh, and Mustafa Ahmed Adam al Hawsawi. As a summer intern, I was able to work with the defense team of Mr. Ali Abdul Aziz Ali, also known as Mr. al Baluchi. Unfortunately, as my internship took place remotely during the peak of the COVID-19 lockdowns in Summer 2020, I wasn’t able to complete the internship through the Military Commissions Defense Organization with a classified security clearance. Despite my internship being undertaken in unusual circumstances, I thoroughly enjoyed my time with the team, and I learned so much about the dynamics of trial, the proceedings in the 9/11 trial, and the advocacy put forth by the legal stakeholders in Guantanamo Bay.
I am extremely fortunate that my previous experiences have allowed me to learn about the history, controversies, and nuances of Guantanamo Bay. Prior to my involvement with PIHRL, my knowledge about Guantanamo Bay was extremely limited. I had the same misconceptions as most Americans, including that Guantanamo Bay largely exists outside of controversy.
It is for this reason, as well as so many others, that I take my role as an observer so seriously. It is undoubtedly the individual responsibility of every American to learn about Guantanamo Bay and the Military Commissions. However, I think it is also the responsibility for those of us who have the ability to act as observers, to attend and objectively report on Guantanamo Bay, and to publicize the trials of the Military Commissions with the hope of informing the larger public.
Preparation For My Role As An Observer
As an NGO observer affiliate with MCOP, my role is to attend, observe, be seen, analyze, critique, and report my observations. My role must be conducted in an independent, objective, neutral, unbiased, and open-minded manner. As an impartial observer, I have a responsibility to myself, the stakeholders of the trial, and future observers to shed my personal beliefs before walking into the hearings every day.
Thankfully, I have several tools aiding my preparation.
The Gitmo Observer website has allowed me to review the experiences of previous observers. The website provides access to the Guantanamo Bay Fair Trial Manual which is an independent and objective guide for assessing human rights protections and interests of the prosecution, the defense, victims and victim’s families, witnesses, the press, the court, JTF-GTMO detention personnel, other detainees, NGO observers and other Military Commission stakeholders.
The Gitmo Observer website also offers access to the Know Before You Go To Guantanamo Bay: A Guide for Human Rights NGOs & Others Going to Gitmo to Attend U.S. Military Commissions Or For Other Purposes. The Know Before You Go guide provides guidance on all procedures and processes of attending Military Commission hearings.
After being involved in various projects with PIHRL, and international law classes with Professor Edwards, I’ve learned that the first step observers must often ask themselves is “what is the source of international law?” This is the basis of the questions leading me into my week at Guantanamo Bay – what are the sources of domestic and international law binding on the Military Commissions and are these obligations being upheld? As I will be attending the hearings the week after the 20th Anniversary of the 9/11 attacks and after the first week of hearings since February 2020, the calls for a fair and speedy trial have resurged.
As a future international human rights lawyer, my interest is in an outcome that protects the rights of both the prisoners and victims and that the operation of the trial is consistent with domestic and international law.
The United Nations is poised to question the U.S. about how COVID-19 affects prisoners at Guantanamo Bay, which has had an undisclosed number of residents who contracted COVID-19. Prisoners, their lawyers, human rights groups, and U.S. Senators have expressed grave concern about Guantanamo prisoners’ potential exposure to the coronavirus, and questioned the adequacy and transparency of protocols to prevent and treat COVID-19 at the remote island facility holding 40 aging, vulnerable prisoners.
U.S. government officials are scheduled to appear before the UN Human Rights Council and are expected to testify that during the four-year Trump Administration, the U.S. has fully complied with all its human rights law obligations in the U.S., and elsewhere, including Guantanamo.
This testimony is part of a “Universal Periodic Review” (UPR), which each country must periodically undergo. This is the 3rd UPR hearing for the U.S., following UPRs in 2010 and 2015. This U.S. UPR hearing is scheduled to begin Monday, 9 November 2020, in Geneva, Switzerland, at UN European Headquarters.
Law Students / Non-Governmental Organization (NGO) Joint UPR “Shadow Report” to the Human Rights Council
Law students and faculty from three law schools in three countries, acting under a non-governmental organization (NGO) umbrella, submitted to the Human Rights Council a Joint UPR “Shadow Report” titled “Deprivation of Guantanamo Bay Prisoner Rights During COVID-19“.
The Report focuses on 6 specific human rights violations the U.S. has perpetrated and continues to perpetrate against Guantanamo prisoners: (1) arbitrary, prolonged detention; (2) torture; (3) denial of health rights; (4) interference with privacy and family life; (5) denial of a fair trial; and (6) denial of remedies for human rights violations. Furthermore, the Report explains how COVID-19 exacerbates these rights violations.
The Human Rights Council does not permit NGOs to speak on the floor of hearings during this week’s portion of the U.S. UPR. However, the NGOS are permitted to speak on the floor at the next round of the U.S. UPR, which is scheduled for February 2020. Students from this 3-country NGO Team will be nominated to deliver the student Team’s oral remarks on the floor of the United Nations UPR follow-up hearings on the U.S., in Geneva in February.
First United Nations hearing on U.S. since DJ Trump lost the election
This will be the first United Nations hearing concerning the U.S. since the presidential election held on 3 November 2020, and the first post-election opportunity for the outgoing Trump Administration to comment on whether and the extent to which U.S. has complied with its human rights obligations during the full four-year Trump Administration.
There was speculation that if the incumbent lost the U.S. Presidency, then this coming week’s UN hearings on the U.S. would be deferred until President Elect Joe Biden and Vice President Elect Kamala Harris assume office on 20 January 2020.
Issues covered at this UPR hearing
This UPR hearing will be broadly focused, highlighting a range of alleged human rights violations by the U.S. in many areas.
Topics for the hearing include Guantanamo Bay and torture. Additional topics include violence against women; human trafficking; systemic racial discrimination and racial profiling by police and other governmental authorities; general discrimination based on race, sex and religion; hate crimes; the death penalty; juvenile sentences without parole; gun violence; “indigenous issues”; homelessness; health care; migrants; the environment; gender equality; privacy; sexual violence in the military; and migration policy and treatment of migrant children.
The proposed Democratic Party Platform 2020 that was released on Monday, 3 August 2020, calls for the closure of Guantanamo, in firm and certain terms: “We will close the detention center at Guantanamo Bay”. (page 82) The full 92-page Platform can be downloaded below.
This carries on the pledge made by Presidential candidate Barack Obama before he was elected in 2008, and his efforts to close Guantanamo after his inauguration on 20 January 2009 until he left office 8 years later.
The Guantanamo reference appears in a section of the Platform titled “Terrorism” (pages 81-82).
So long as violent extremists continue to plot attacks on our homeland and our interests, Democrats will maintain a vigilant focus on counterterrorism.
Democrats recognize that the threat landscape has evolved dramatically since September 11. Our counterterrorism priorities, strategies, footprint, and tools should shift accordingly, including to respond to the growing threat from white supremacist and other right-wing terrorist groups.
Democrats will sustain the global effort to defeat ISIS, al-Qaeda, and their affiliates. We will ensure that the world is equally committed to the difficult task that follows military success: dealing with the underlying conditions that allowed violent extremism to flourish in the first place. We will work with our partners to prioritize diplomatic, law enforcement, and intelligence tools, to reinforce our objectives instead of distorting them.
Democrats believe that our rhetoric, policies, and tactics—and those of our counterterrorism partners—should never serve as terrorist recruiting tools. We will always work to avoid civilian casualties, and we will not weaponize counterterrorism for anti-immigrant purposes. We will reject the targeting of Muslim, Arab, and other racial and ethnic communities based on their faith and backgrounds at home and abroad. We will close the detention center at Guantanamo Bay, enhance transparency, oversight, and accountability in counterterrorism programs and operations, and safeguard civil liberties and the rule of law.
Delegates to the 2020 Democratic National Convention will vote on the Platform remotely, from 3 – 15 August 2020, with all votes due to be cast before commencement of the Convention, which is scheduled for 17 – 20 August 2020.
Download the 92-page Democratic Party Platform 2020 here:
This week I attended U.S. military commission hearings held at Guantanamo Bay, Cuba, against five alleged 9/11 conspirators. I was a representative of Indiana University McKinney School of Law’s Military Commission Observation Project, which sends McKinney faculty, staff, students, and graduates to Guantanamo to monitor hearings. I and nine other representatives of non-governmental organizations (NGOs) were able to attend court sessions on three different days this week. The hearings dealt with a defense lawyer’s motion to withdraw, accusations that U.S. intelligence agencies are interfering with the litigation, defense motions to dismiss, and discovery matters.
The NGO Representatives who attended hearings at the Guantanamo hearings pose in front of “Camp Justice,” the tent city where we spent the week
Judge excuses 9/11 defense lawyer
On Tuesday morning, 18 February 2020, Air Force Col. W. Shane Cohen heard arguments on a motion to withdraw filed by Defendant Ramzi bin al-Shibh’s “learned counsel,” James P. Harrington. Defendants facing the death penalty cases are entitled to be represented by “learned counsel” who meet American Bar Association standards of death penalty knowledge and experience. Mr. Harrington, 75, has served as Mr. bin al-Shibh’s learned counsel since 2012. Harrington requested permission to withdraw from the case due to his health and difficulty in his relationship with his client.
Most of Mr. Harrington’s arguments related to his medical conditions, though he stated that he difficulties in his relationship with Mr. bin al-Shibh affected the health issues. The government argued that al-Shibh would not be happy with any learned counsel, that Harrington had not provided his medical records, and that his condition was not an emergency. A separate closed ex parte hearing was held with al-Shibh regarding his relationship with Harrington.
Judge Cohen announced his interim ruling on Harrington’s motion on Wednesday morning. As he found good cause for withdrawal based on Mr. Harrington’s health, he did not address Mr. al-Shibh’s relationship with his lawyer. Cohen granted Harrington leave not to appear at Guantanamo again, on the condition that he continue to approve pleadings filed by his team until a new learned counsel is appointed. Mr. bin al-Shibh’s team is required to update the commission every two weeks on progress in the search for a replacement and file a transition plan upon the appointment of a new learned counsel.
Judge Cohen noted that severing al-Shibh’s case from that of the other 9/11 defendants was an option but did not sever. He acknowledged the possibility that the start of the trial could be delayed until June 2021. Judge Cohen cancelled hearings that had been scheduled for March 2020, so hearings in the 9/11 case will not resume until June 2020.
James Harrington, who has served as learned counsel for 9/11 Defendant Ramzi bin al-Shibh since 2012, was released by Judge Cohen pending appointment of new learned counsel
Defense lawyers argue that a live computer link compromises process
In a particularly fiery exchange Wednesday among lawyers for Ammar al Baluchi and Khalid Shaik Mohammad (“KSM”) and the judge, those defense counsel argued that the government was using a device in the courtroom which allowed outside interference in the litigation. Maximum security is enforced in the courtroom, and generally no phones or other devices with connections outside of it are permitted.
The courtroom has two principal parts to it: (a) the well, where the prosecution, defense, judge, defendants, jury, guards, court reports, and other participants are; and (b) the gallery where NGOs, media, victims and victims’ families, and members of the public sit. The two areas are separated by reinforced glass and soundproofing.
The gallery we were seated in has five large windows looking into the courtroom, each with a television monitor at the top. The monitors display the person speaking, whether the judge, defense or government counsel, and they and the audio work on a 40 second delay. We were informed that if classified information is mentioned, the judge or his security officer can trigger a police-type light to the right of the judge, cutting the monitors and audio. This has not occurred when I’ve been at the court.
In 2013, during defense argument to preserve what remained of CIA “black sites,” the red light came on and the audio feed was cut, but no one inside the court had triggered it. The subsequent revelation that intelligence agencies had remote access to the audio feed led to lengthy litigation and the original judge’s order that the CIA or any other agency with remote access disable it.
Earlier this month, defense teams observed government lawyers apparently receiving messages from a device sitting on the prosecution’s tables and reacting to those messages by asking the judge to cut the audio and video feed to the gallery. On Wednesday, defense lawyers argued that the apparent link with intelligence agencies was once again permitting outside interference into the court’s operation. Judge Cohen then acknowledged that he had, without notice to defense teams, allowed prosecutors to establish the live link to intelligence agencies, including the C.I.A. He insisted that the link was necessary to avoid “spills” of classified information, and that 21st century technology avoided the necessity of having representatives from more than a dozen intelligence agencies in the courtroom to signal their objections to potentially classified information. KSM lawyer Gary Sowards responded “21st century technology in the service of 15th and 16th century torture.”
Judge Cohen insisted that nothing nefarious was going on, and that if he had proof that defense teams were being listened in on, that he would dismiss the case immediately. He also said that the commission was not a “kangaroo court” or a “failed experiment,” referring to characterizations of the commission made by former defense counsel and the Chief Defense Counsel of the Military Commissions Defense Organization.
Defense lawyers requested a guide outlining classified matters, feedback on alleged confidential matters causing audio to be cut, and the original schematic for electronic wiring at the court. Judge Cohen took the requests under advisement.
Me in front of the northeast gate, the border between the U.S. Naval Station and the Republic of Cuba
Other motions argued this week
We also observed arguments on discovery matters and motions to dismiss.
Defense lawyers argued that the government had not complied with discovery requests and orders regarding medical records of the defendants and the disclosure of potential witnesses. They contend that these records and witnesses could shed light on the effect of torture upon defendants before their statements to FBI “clean teams.” The government seeks the introduction of these statements into evidence in the case, while the defense contends that the statements were the result of coercion and should be excluded. Government lawyers agreed to attempt to resolve these disputes before court resumes in June.
Lawyers for Ammar al Baluchi and Mustafa al Hawsawi also argued that some of the charges against their clients should be dismissed as they are unreasonably multiplicitous. In other words, the same alleged acts are the basis of multiple charges. Judge Cohen also took these arguments under advisement.
Ferry’s Landing Beach, formerly known as Fisherman’s Point. Christopher Columbus landed here in 1494.
On Thursday afternoon, Judge Cohen ordered that hearings in the 9/11 case be adjourned until June.
On Friday, the other NGO Representatives and I toured the U.S. Naval Station’s Northeast gate with Cuba, and met with Commander Wall, Deputy Chief Defense Counsel of the Military Commissions Defense Organization. As our meeting with Commander Wall began, we were informed that our flight back to Andrews Air Force Base in Maryland that had been scheduled for Saturday was delayed for 24-hours due to mechanical problems. We took advantage of the delay by taking a late afternoon boat ride in Guantanamo Bay.
Other NGO Representatives and I enjoy a boat ride in Guantanamo Bay
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Professor George Edwards (left) and I at the Guantanamo Bay airport on Saturday, 15 February 2020. I had just arrived for my week of monitoring, and Professor Edwards was preparing to return to Andrews Air Force Base after his week of monitoring at Guantanamo in the 9/11 case.
The Pentagon approved me to travel to the U.S. Naval Station at Guantanamo Bay, Cuba, to observe and monitor U.S. Military Commission pre-trial hearings against five alleged co-conspirators of the September 11 attacks on the World Trade Center and Pentagon.
On Saturday, 15 February 2020, I traveled on a military flight from Andrews Air Force Base (Joint Base Andrews) outside Washington, D.C. to Guantanamo along with nine other representatives of non-governmental organizations (NGOs). Our mission includes to attend, observe and be seen, analyze, critique and report on the proceedings.
The 9/11 trial is scheduled to begin on 11 January 2021, less than one year away. Developments in the case may derail the case, causing a substantial delay.
This short piece describes my background and my observation and monitoring role, who the 9/11 defendants are, case developments I learned at a barbeque sponsored by one of the defense teams including the requested withdrawal of one of the defense counsel, and my concluding thoughts.
I received my Juris Doctor degree from Indiana University’s McKinney School of Law in 1994, and am an employment lawyer in Indianapolis. When I was in law school, there were few international law opportunities for students. Several years after I graduated, Professor George Edwards founded the school Program in International Human Rights Law (PIHRL), which for over 20 years has offered students and graduates many international opportunities. One of its projects is the Military Commission Observation Project, to which the Pentagon granted special status that permits the Project to send IU McKinney faculty, staff, students, graduates to Guantanamo to observe and monitor U.S. Military Commission hearings.
I am thankful and excited about this opportunity, for myself, and for other IU McKinney Affiliates who have taken advantage of it!
This will be my third trip to “Gitmo” (as the Guantanamo Bay Naval Station is called). In January 2018, I monitored hearings in the case against alleged al Qaeda commander Hadi al-Iraqi / Nashwan al Tamir. As a result of his ongoing back problems, only two half-day hearings took place the week I was there.
In November 2018, I returned to Guantanamo for hearings against the five alleged 911 co-conspirators. We had a busy week of hearings, including the testimony of former acting general counsel William Castle regarding Defense Secretary James Mattis’ firing of the Military Commission’s Convening Authority and its legal advisor.
Guantanamo Bay’s Windward Point Lighthouse and Museum. The lighthouse was built in 1904.
The five defendants in this case hail from multiple nations, are of varying ages, speak multiple languages, and share a long history of confinement in black sites and at Guantanamo.
Khalid Sheik Mohammed, called “KSM,” is the lead defendant, and is accused of masterminding the 9/11 attack and overseeing the operation and training of the hijackers in Afghanistan and Pakistan.
Walid bin Attash allegedly ran an Al-Qaeda training camp in Afghanistan where two of the 19 September 11 hijackers were trained.
Ramzi bin al Shibah allegedly helped the German cell of hijackers find flight schools and enter the United States and allegedly helped finance the plot.
Ammar al Baluchi, KSM’s nephew, is accused of sending money to the hijackers for expenses and flight training, and helping some of them travel to the U.S.
Mustafa al Hawsawi is charged with facilitating fund transfers to and from the hijackers.
The 9/11 defendants were seized in Pakistan in 2002 and 2003, and were held in secret CIA black sites outside the U.S. from then until September 2006, when they were transferred to at the Guantanamo Bay Naval Station since 2006. When the men were in the black sites, they were subjected to what the U.S. government calls “enhanced interrogation techniques” but which the defendants call “torture”, including stress positions, walling, dietary manipulation, sleep deprivation, cramped confinement, and others. Some of them were waterboarded, including KSM, who was waterboarded 183 times.
James Connell, Learned Counsel for Defendant Ammar Al-Baluchi
Barbeque invitation by al Baluchi’s defense team; Gathering information
While pre-trial motion hearings in the 9/11 case had been scheduled to take place all week, an unforeseen development late last week has thrown this schedule into doubt. We (the NGOs) learned more about this development at a barbeque held by Mr. al Baluchi’s defense team Saturday night, hours after we arrived at Guantanamo.
Mr. al Baluchi’s defense team regularly invites NGO Representatives to a barbeque on the night of their Guantanamo arrival in order to preview the hearings expected to take place during the week and to answer questions regarding the proceedings. The “barbeque” now features pizza and is held at Guantanamo’s historic windward point lighthouse, rather than featuring meat and vegetables cooked on grills at the townhouses where defense counsel used to live at Guantanamo. The barbecues have become an invaluable resource for NGO Representatives to gain insight into developments in the 9/11 hearings.
The Possible Withdrawal of Mr. bin al Shibah’s “Learned Counsel”
At the barbeque Saturday night, we were informed that last Tuesday, Mr. bin al Shibah’s 75 year old learned counsel, James P. Harrington, asked to be excused from the case for medical reasons, and because of issues involving his defense team. A “learned counsel” is a lawyer with training and experience handling cases in which the death penalty is an authorized penalty, as in this 9/11 case. Under Military Commission regulations, each defendant facing the death penalty is entitled to a learned counsel at all hearings. If the learned counsel is not present for any particular hearing, the hearing cannot go forward.
Air Force Col. W. Shane Cohen, the military judge, recessed hearings for the remainder of last week to permit Mr. Harrington to file his motion and for the government to respond. The briefing has now been completed, with argument thereon is scheduled to take place here Tuesday morning, 18 February 2020.
Mr. Harrington’s absence from the case threatens to derail the war court’s plan to start the trial in January 2021.As Mr. al Baluchi’s counsel James Connell explained, the requirement for death penalty defendants to have counsel learned in such cases dates to the very beginning of the republic in 1789.
The October 2017 withdrawal of alleged USS Cole bomber Abd al-Rahim al-Nashiri’s learned counsel, Indianapolis lawyer Rick Kammen, eventually contributed to the months-long abatement of that case, in which the D.C. Circuit Court vacated years of rulings. Chief Defense Counsel Brigadier General John Baker, who oversees all Military Commission defense counsel, has repeatedly requested funding for back-up learned counsel, but those requests have been denied.
Mr. Harrington has served as al Shibah’s learned counsel since 2012. It is reported that he has a heart condition that required surgery a year and a half ago, followed by two knee surgeries, and that his doctor has advised him to leave the case. While Judge Cohen suggested that Mr. Harrington’s withdrawal would cause a delay of three to nine months, Mr. al Baluchi’s counsel described that short of a delay as very ambitious. The Pentagon would have to hire a new learned counsel, get that lawyer the required security clearances, and provide time for the lawyer to get up to speed on more than seven years of pretrial proceedings.
Judge Cohen has stated a willingness to entertain motions from each defense team to sever their client from the other defendants, with severed cases being tried separately. For example, if Mr. al Shibah’s case is severed, and other defendants are not severed, the case would go forward with 4 defendants, with Mr. al Shibah’s case heard separately.
Air Force Colonel W. Shane Cohen has presided over the 9/11 case as military judge since June 2019
Tuesday’s proceeding could alter the schedule and eventually the shape of the 911 proceedings. I and the other NGO Representatives look forward to witnessing these arguments firsthand and hope to hear Judge Cohen’s ruling as well.
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
From 20 to 31 January 2020, the U.S. government is holding pre-trial hearings at Guantanamo Bay, Cuba, in the military commission case against 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon.
I was nominated by the Indiana University McKinney School of Law in to travel to Guantanamo to monitor these hearings. I graduated from the law school in 2018, and am participating in the school’s Military Commission Observation Project, that sends faculty, staff, students and graduates to Guantanamo to monitor hearings live, and to Ft. Meade, Maryland to monitor the hearings via CCTV.
At Guantanamo, my mission is to attend, observe, be seen, analyze, critique, and report on the military commission proceedings in Guantanamo Bay, Cuba.
From Indiana to Maryland
Today I traveled from Indiana to a small town in Maryland near Joint Base Andrews (Andrews Air Force Base), which is where my plane to Guantanamo is scheduled to depart at 10:00 tomorrow morning (Saturday).
This is my seventh observer mission to Guantanamo Bay, Cuba and I have picked up a few tricks to help ensure a successful mission.
It is essential to arrive near Andrews the day before a scheduled flight out of Andrews because the flights to Guantanamo Bay usually depart early in the morning. It is a good idea to book direct flights early in the day in case there are flight delays or cancellations, because there are no flights from Indiana that would arrive in time on the morning of the Guantanamo flight.
I arrived in Washington DC at approximately 1:00 pm today on a direct flight from Indianapolis, and from there I took a Lyft to the Quality Inn at Joint Base Andrews in Clinton, Maryland. I chose this hotel because it is very close to the Visitor Control Center (VCC) at Joint Base Andrews, where I will meet my military escort to get on base in the morning. It is so close, in fact, that I can see the VCC from my room. In the morning I will check out of the hotel and walk across the street to meet my escort. From there we will drive through the Andrews main entrance and go to the base air terminal (the home of Air Force One) to catch our flight to Cuba.
Know Before You Go to Guantanamo / NGO Coin
I left Indiana this morning I stopped by the law school where I picked up fourteen copies of the Know Before You Go to Guantanamo Bay manual, which is a continuously updated color publication authored by Professor George Edwards, who founded our law school’s Guantanamo projects. We provide copies of Know Before You Go to observers from other groups we meet at Joint Base Andrews, and the observers can use the Manual during the week at Guantanamo. PDF copies of the Know Before You Go to Guantanamo Bay can be downloaded on http://www.GitmoObserver.com.
Additionally, I picked twenty NGO observer challenge coins which can be purchased for $15.00. Professor Edwards designed the coin with guidance and input from various Guantanamo stakeholders.
Testimony at Guantanamo This Week
At the hearings this week we are expected to hear testimony from psychologists James Elmer Mitchell and Bruce Jessen who are purported to have developed the Enhanced Interrogation Techniques (EIT) program, containing techniques such as waterboarding, that was implemented following the 9/11 attacks in CIA-operated black sites.
The first day will likely be 22 January 2020 due to the observance of Martin Luther King Jr. Day.
I plan to make another blog post from the terminal at Joint Base Andrews in the morning and plan to continue to post on the blog throughout the hearing week.
Juris Doctor (2018)
Military Commission Observation Project Trial Observer / Monitor
This morning, 17 September2019, I traveled to the Pentagon for the second time, this time to attend a Guantanamo Bay Periodic Review Board (PRB) hearing for Mr. Mohammed Ahmad Rabbani (ISN 1461), who is a prisoner being held at Guantanamo Bay, Cuba, where he has been for more than 15 years.
Periodic Review Boards (PRBs)
The Guantanamo Bay Periodic Review Board (PRB) process was established on 7 March 2011 upon an Executive Order by President Obama who sought to close the detention facilities at Guantanamo Bay. The PRB is a discretionary administrative process with the stated purpose of seeking to determine whether each prisoner held at Guantanamo “continues to be a threat” to U.S. national security.
Today, Mr. Rabbani had a PRB hearing, at which he had an opportunity to plead with the U.S government to release him from Guantanamo.
Background on Mr. Mohammed Ahmad Rabbani (ISN 1461)
Mr. Rabbani is an alleged travel and financial facilitator for alleged al Qaeda leader Khalid Sheikh Mohammed. It is alleged that Mr. Rabbani’s main job was to operate al Qaeda safe houses in Karachi, Pakistan, facilitate travel of Mujahidin and their families to and from Afghanistan, and acquire and drive vehicles. He is also suspected of having links with Osama Bin Laden.
Mr. Rabbani is a Pakistani citizen and was born in Saudi Arabia in October 1969 and raised there. According to a JTF-GTMO Detainee Assessment document, Mr. Rabbani was arrested in September 2002 in Pakistan during a raid of guest houses that he operated along with others. He was held in Pakistani custody until he was transferred to Guantanamo Bay in September 2004.
Mr. Rabbani is now under a PRB subsequent full review, which is a hearing permitted to every detainee every three years if their Initial and File review hearings are declined.
More information provided by the US government on Mr. Rabbani at www.prs.mil
Today’s Periodic Review Board (PRB) hearing for Mr. Abdul Malik
Since this is my second time visiting the Pentagon, I was familiar with the process to expect. I arrived at the Pentagon today at 8:00 a.m. (Tuesday, 17 September 2019), showed my passport, cleared through rounds of high security, and went to the Pentagon waiting area waiting for the other observers. While waiting, I had the opportunity to talk with the other observers. We were 3 Observers plus one member of the media. I was the Observer who represented the Indiana University McKinney School of Law, and the other two Observers represented Judicial Watch and Human Rights First. A media representative from al Jazeera was present. Though governmental representatives may also view PRBs from this venue, none were present today.
Around 8:30 a.m., the four of us were escorted to a secure conference room in the Pentagon to observe the hearing broadcasted while it is happening live from Guantanamo Bay. The hearing was broadcasted through a TV screen in the middle of the room. Before we entered that room, we had to leave our cell phones and cameras on a table outside the conference room. Once inside the room, we had to sign a form that indicated rules for a SCIF (Sensitive Compartmented Information Facility), such as, no recording devices.
The hearing started around 9:05 a.m.
The TV screen was switched to the hearing where we can see a US military official sitting in front of a table. The PRB started with an off-screen voice, presumably of a U.S. military official, calling out the names of the six U.S. government departments participating in the PRB, and making other preliminary announcements. The six departments are Department of Defense; Department of State, Department of Justice; Department of Homeland Security; the Chairman of the Joint Chiefs of Staff; and the Office of the Director of National Intelligence.
Then, the U.S. military official read out an “Unclassified Statement”, which is now posted online, and gives an [alleged] general background about the detainee. It reads as follows:
“Mohammed Ahmed Ghulam Rabbani (PK-J 461), a.k.a. Abu Badr, was a financial and travel facilitator for al-Qaida leaders Khalid Shaykh Muhammad (KU-10024) and USS Cole mastermind Abd al-Rahim al-Nashiri from 1997 until his arrest in September 2002 during a raid of guest house that Abu Badr was operating with his brother Abdul Rabbani (PK-1460) IN Karachi, Pakistan. His primary jobs were to run al-Qaida safe houses in Karachi, facilitate travel of mujahedeen and their families to and from Afghanistan, and acquire and drive vehicles. Abu Badr lived in Saudi Arabia until his early 20s but spent his active jihadist years in Pakistan.”
Later, the appointed personal representative for Mr. Rabbani read out a statement. This statement is posted online for the public. She noted in her statement that she has scheduled over 40 meetings during the past months with Mr. Rabbani. However, Mr. Rabbani has not accepted to attend any of the meetings. The personal representative said that Mr. Rabbani does not feel that the current political situation will allow any detainee to depart GTMO. The personal representative reiterated that she will continue scheduling meetings with Mr. Rabbani.
With that, the public session was concluded at 9:11 a.m. about 4 minutes after it began.
Reflections and preparation for Guantanamo Bay
This is my second time attending a hearing at the Pentagon related to Guantanamo detainees. This time, since the Personal Representative Statement was published online before the hearing stating that the detainee will not be attending, and considering last’ time discussion with the other NGO observers about how prisoners’ are losing hope on the process, I expected this hearing to be short.
After attending my second PRB, I started to get a better understanding of the current proceedings. It appears that detainees are increasingly refusing to attend the PRB hearings. This comes to no surprise considering the current political environment and that no detainee has been successfully released through the PRB process since the current Administration assumed power, and the five detainees who were cleared for transfer by the PRB process during Obama Administration remain at Guantanamo. It appears that the process is losing its meaning and trust. With no changes or progress in the proceedings, it is expected that more detainees will stop cooperating.
Although PRB hearings so far were very short and expected, it still provides an insight into how PRB hearings are being held. It is a unique opportunity for those who are interested in learning more about the Guantanamo detainees, prisoners’ rights and prosecuting alleged war criminals. I look forward to continuing learning about the PRBs process and having the opportunity to attend more PRBs in the future. I look forward to my upcoming visit to Guantanamo Bay to attend and observe the military commission hearings.
Maitha Salem Altamimi
Master of Laws (LL.M.) Candidate, International Human Rights Law Track (2019)
Military Commission Observation Project Trial Observer / Monitor
Program in International Human Rights Law
Indiana University McKinney School of Law
October 14th, 2019
Note: Progress of the case
As of October 17th 29th, 2019, The Periodic Review Board released “Unclassified Summary of Final Determination” determining that “continued law of war detention of the detainee (Mr. Mohammed Ahmad Rabbani) remains necessary to protect against a continuing significant threat to the security of the United States.”
This morning, Tuesday 30 July 2019, I traveled to the Pentagon where I attended a Guantanamo Bay Periodic Review Board (PRB) hearing for Mr. Abdul Malik, who is a prisoner being held at Guantanamo Bay, Cuba, where he has been for more than 12 years.
Part I of this blog post describes who I am and how I came to attend this PRB. Part II describes the PRB, which is an administrative parole-like process that was created by President Obama in 2011 as he was seeking to close Guantanamo’s detention facilities. Part III discusses the background of Mr. Malik. Part IV discusses Mr. Malik’s PRB.
I am from the United Arab Emirates, and received a U.S. government Fulbright scholarship to study for my LL.M. degree at Indiana McKinney School of Law, where I am in the International Human Rights Law Track. I have taken international human rights law classroom classes, and am currently working as an immigration intern at the International Rescue Committee (IRC) in Silver Spring, Maryland, through McKinney’s Program in International Human Rights Law.
I received my first law degree from UAE University in 2015, and a post-graduate diploma in UAE Diplomacy and International Relations from Emirates Diplomatic Academy in 2017. After earning those degrees, I worked for 2 years in the UAE Ministry of Climate Change and Environment as a legal researcher and 5 months as an analyst in a Minster of State office.
During my work and studies, I developed an interest and passion towards topics related to International Human Rights Law.
At Indiana McKinney, I learned that Professor Edwards founded two projects related to Guantanamo Bay. The first is the Military Commission Observation Project, that sends McKinney Affiliates (faculty, staff, students, graduates) to Guantanamo Bay base to monitor U.S. military commission hearings live, and to Ft. Meade, Maryland, where they can view military commission hearings by CCTV. The second is the Periodic Review Board (PRB) Observation Project that sends McKinney Law Affiliates to the Pentagon to monitor PRBs (which I explain below). I applied for both projects and received clearance to attend today’s PRB hearing at the Pentagon. I am still waiting for approval to travel to Guantanamo, Cuba to attend the Military Commissions hearings.
As a lawyer who has been working to become a human rights advocate, I have long been interested in various topics related to human rights. Among those topics is prisoners’ rights; the right to a fair trial, the right not to be tortured, etc. Nowadays, it appears that many of these rights have been neglected or overlooked especially when these rights intersect with terrorism, politics and national security. I have been thinking about how we can balance between ensuring justice and human rights while considering politics and national security.
I hope my Guantanamo experiences will offer me a better practical understanding of these pressing issues.
Periodic Review Boards (PRBs)
The Guantanamo Bay Periodic Review Board (PRB) process was established on 7 March 2011 upon an Executive Order by President Obama who sought to close the detention facilities at Guantanamo Bay. The PRB is a discretionary administrative process with the stated purpose of seeking to determine whether each prisoner held at Guantanamo “continues to be a threat” to U.S. national security. The PRB does not address the legality of the detention of any prisoner, or the guilt or innocence of any prisoner, and only addresses the issue of threat to U.S. national security. The question of whether a detainee is guilty is determined by a separate Military Commissions at Guantanamo Bay, Cuba.
If a PRB determines that a prisoner is “no longer a threat”, the prisoner can be cleared to be released from Guantanamo, either to be repatriated to his country or transferred to resettle in a third country. The members of the PRB include one representative of each of the following: Department of Defense; Department of State, Department of Justice; Department of Homeland Security; the Chairman of the Joint Chiefs of Staff; and the Office of the Director of National Intelligence.
Every detainee in a PRB proceeding is provided with a personal representative who is a uniformed U.S. military officer whose role is to assist and advocates on behalf of the prisoner during the PRB process.
Mr. Mohammed Abdul Malik Bajabu (known as Abdul Malik), who is from Kenya, was born on 11 November 1973. He has been held at Guantanamo since 2007, after being suspected of being a member of Al Qaeda of East Africa (AQEA) and participating in the 2002 attacks against the Paradise Hotel and an Israeli aircraft in Mombasa, Kenya. He was arrested in 2007 by Kenyan authorities and transferred to US custody a few weeks later.
Mr. Abdul Malik has been afforded multiple levels of PRBs, including an initial review and file reviews. The current PRB is considered to be a “subsequent full review”, which is a hearing permitted to prisoners every three years if their initial and file review hearings are not successful. Each of his PRBs offered him the opportunity to ask the United States government to release him from Guantanamo.
More information provided by the US government on Mr. Abdul Malik at www.prs.mil
Today’s Periodic Review Board (PRB) hearing for Mr. Abdul Malik
I arrived at the Pentagon today at 7:30 a.m. (Tuesday, 30 July 2019), cleared through a round of security, and went to the waiting area waiting for the rest of the observers. Sometime after, Professor George Edwards and other representatives from different Organizations arrived. While waiting, I had the opportunity to talk with the other Observers. We were 5 Observers in total. I and Professor Edwards represented Indiana University McKinney Law School and the other three representatives were from Judicial Watch, the International Committee of the Red Cross (ICRC), and Human Rights First.
Around 8:30, military officials in uniform came to escort us through more security channels, and take us to a secure Pentagon conference room to observe the hearing broadcasted while it is happening live at Guantanamo. We were to watch the hearing broadcasted through a TV screen in the middle of the room. Before we entered that room, we had to leave our cell phones and cameras on a table outside. Once inside the room, we had to sign a form that indicated rules for a SCIF (Sensitive Compartmented Information Facility), such as, no recording devices.
The hearing was scheduled to begin at 9:00 a.m., but started late, around 9:05 a.m. The TV screen was switched to the hearing channel. We could see the hearing room, which I understand is in a courtroom at Guantanamo Bay.
The PRB started with an off-camera voice, presumably of a U.S. military official, making introductory remarks, including calling out the names of the US departments participating in the PRB. Then, the U.S. military official read out an “Unclassified Statement”. The statement is posted online, and it makes allegations regarding the general background of the prisoner. It is read as follows:
“Mohammed Abdul Malik Bajabu (KE-10025) was inspired by a radical imam to leave Kenya in 1996 to receive extremist training in Somalia, where he developed a close relationship with members of al-Qa’ida in East Africa (AQEA), including senior operational planners such as Harun Fazul. Bajabu became an AQEA facilitator and was closely involved in the preparation and execution of the attacks in Mombasa, Kenya, in November 2002 against the Paradise Hotel and Israeli aircraft. In February 2007, Kenyan authorities arrested Mr. Bajabu for his involvement in the Mombasa attacks and transferred him to US custody a few weeks later.”
Later, Mr. Abdul Malik’s appointed personal representative read out a statement. At the time of the hearing, this statement was not posted online for the public. He noted in his statement that he has scheduled 15 meeting during the past 7 months with Mr. Abdul Malik, and Mr. Abdul Malik accepted to attend five out of the 15 meetings requests. The last meeting was scheduled on July 29, 2019, one day before this board hearing which according to the personal representative, Mr. Abdul Malik again refused to attend. Mr. Abdul Malik did not attend the public portion of the scheduled PRB today. The personal representative stated that he will continue scheduling meetings with Mr. Abdul Malik.
With that, the public session was concluded about 4 minutes and 44 seconds after it began.
This was my first time attending a Guantanamo hearing and my first time attending a hearing at the Pentagon. I did not know what to expect, but definitely, I expected the hearing to last longer. According to the other Observers who have been attending these hearings for a long time, it is usual for a PRB hearing to be this quick (fewer than 5 minutes). I also expected Mr. Abdul Malik to be present at the hearing. However, it appears that Guantanamo prisoners may be choosing not to attend their PRBs because they see little chance of being released after a PRB, given the current political environment, the fact that no prisoners have been released through the PRB process since the current U.S. Administration assumed power, and that even some prisoners who were cleared by the PRB process during Obama Administration are still in Guantanamo and not yet released. Current prisoners are losing hope in this process. I suspect that more prisoners will stop attending PRB hearings.
Visiting the Pentagon.
On a different note, this was my first time visiting the Pentagon. It a very big and beautiful building. I didn’t see much of the place, but hopefully next time I visit, I can take a building tour. Although the hearing was very short, it was worth attending. It offers insight into the PRB and how the hearings are being held. It a unique opportunity for those who are interested in learning more about the Guantanamo prisoners. I look forward to learning more about the PRBs process, and to have the opportunity to attend more PRB hearings at the pentagon. Ideally, the prisoners will attend the next PRB hearing I attend.
I’m still waiting for my security clearance to travel to Guantanamo Bay, Cuba, to observe the military commission proceedings live. This opportunity would definitely provide me with a better understanding of the Guantanamo Military Commission proceedings.
Maitha Salem Altamimi
Master of Laws (LL.M.) Candidate, International Human Rights Law Track (2019)
Military Commission Observation Project Trial Observer / Monitor
Program in International Human Rights Law
Indiana University McKinney School of Law
July 31st, 2019
Note: Progress of the case
As of August 29th, 2019, The Periodic Review Board released “Unclassified Summary of Final Determination” determining that “continued law of war detention of the detainee [Mr. Mohammed Abdul Malik Bajabu] remains necessary to protect against a continuing significant threat to the security of the United States.”
The Indiana University McKinney School of Law’s Military Commission Observation Program nominated me to the Pentagon for me to travel to Guantanamo Bay, Cuba, to monitor U.S. Military Commission hearings. The hearings I was assigned to were in the case against 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon. The Pentagon granted me clearance to travel to Guantanamo from 21 to 28 September 2019
Before my trip, I only knew of Guantanamo from the news, documentaries, and movies. I never thought or imagined that I would have the opportunity to be personally present in Guantanamo as an NGO observer. There are so many aspects of this visit to reflect on but I will confine my discussion to the following.
This blog has 6 Parts. Part I describes my Guantanamo mission. Part II describes the substance of the hearings against the 5 alleged 9/11 masterminds. Part III are some of my personal reflections. Part IV describes the courtroom and the hearing setting. Part V discusses my personal experiences at Guantanamo. Part VI describes my last day at Guantanamo, 28 September 2019.
I included that my mission to Guantanamo was a very enriching experience, and I recommend it to any Indiana McKinney faculty or staff member, student or graduate.
My Guantanamo mission
I have long been interested in topics related to human rights, including transparency, ensuring a fair trial, and striving to achieve justice. This is what initially sparked my interest in the Guantanamo Military Commission hearings.
My mission as a Non-Governmental Organization Observer (NGO) representing Indiana University McKinney School of Law, was to attend, observe / monitor, be seen, analyze, critique and report on the Guantanamo proceedings.
“What happens at Guantanamo Bay should not stay at Guantanamo Bay.”
To fulfill this mission, I acknowledged my responsibilities to be independent and objective in my observations and to try to gain a good understanding of how the Guantanamo proceedings are being held, and an understanding of whether the rights and interests of all Guantanamo stakeholders were being afforded to them.
The substance of the hearings
Trial date set for the long-running case.
The 9/11 case is one of the longest ongoing cases of the 21st century, having begun with an arraignment in 2012, which followed an earlier version of the case that was dismissed.
On 5 May 2012, the five defendants; (1) Mr. Khalid Shaikh Mohammad, (2) Mr. Walid bin Attash, (3) Mr. Ramzi bin al Shibh, (4) Mr. Ammar Al Baluchi, and (5) Mr. Mustafa Al Hawsawi, were charged with war crimes. After almost eight years of pretrial hearings, Judge Cohen, the current presiding military judge who is the third military judge to be assigned to the case, set a trial date for 11 January 2021.
While we waited outside the courtroom during court breaks, there was open speculation about whether this trial date would stick. But, it seems that the prosecution and defense teams must prepare the case for trial to commence on that date.
In addition to the prosecution and defense preparing, preparations must be made by the government, that will be responsible for the logistics of a large trial that will attract hundreds of new people to a small, remote military base that was not originally designed for such a proceeding and still lacks some basics needs, such as housing for all the media who will likely be interested in covering the trial.
Motion arguments, testimony
During the week I was in Guantanamo, Judge Cohen heard arguments on several motions and heard testimonies of several witnesses. They are outlined as below:
Motion to Suppress Defendants’ Coerced Testimonies.
The five defendants were captured between 2002 and 2003 and were transferred to Guantanamo in 2006. The evidence shows that between the time they were captured and the time they were taken to Guantanamo, these five men were held in secret Central Intelligence Agency (CIA) prisons known as “black sites”. The CIA has invested over 81 million dollars and enlisted two psychiatrists, James Mitchell and Bruce Jessen, to design “enhanced interrogation techniques” (EITs) (that defense counsel and others refer to as “torture”) used against these defendants and others held at the CIA black sites. Both psychiatrists have been called to testify in January 2020 in this 9/11 case.
We heard witness testimony connected to the motion to suppress alleged coerced statements (involuntary statements obtained by enhanced interrogation/torture). This week, we observed the testimony of:
Special Agent Stephen McClain. He was part of the Criminal Investigative Task Force (CITF) that was tasked to get “clean” testimony in 2007 from defendants to be used later in court. Agent McClain’s testimony was taken via CCTV. The questions asked were about whether interrogation was conducted in a voluntary, non-hostile way, and whether Article 31 from the Uniform Code of Military Justice UCMJ (right to remain silent, be informed, right to counsel, and any statement can be used against you) was given to the defendants.
Judge Bernard E. Delury. He presided at the 2007 Combatant Status Review Tribunal (CSRT) tribunal hearings for each of the five defendants. The questions asked of him were focused on the competency and the demeanor of the defendants, whether the 2007 tribunal was conducted fairly, and whether any of plea deals or confessions were made involuntarily. “CSRTS were not criminal proceedings,” Judge Bernard E. DeLury stated that the purpose of the CSRT service in Guantanamo Bay in 2007, over which he presided for all five defendants, was not to decide guilt or innocence. He stated that the tribunal was an administrative fact-finding tribunal. Four of the five defendants attended the CSRT. Mr. Ramzi bin al Shibh chose not to attend. Judge DeLury might be called again to the witness stand to be examined by other defense counsels (maybe via CCTV).
Mr. D.J. Fife, Latent Print Examiner. Mr. Fife, of the FBI, was the fingerprint examiner in the clean team and was present at the 2007 tribunal. The questions asked of him were around “known fingerprints” and “latent prints”, when and how the defendants’ fingerprints were taken, and the chain of custody.
Both the prosecution and the defense examined the witnesses. The defense presented arguments supporting the claim of torture and coerced statements. On the other hand, the prosecution presented arguments supporting that 2007 interrogations were conducted voluntarily, that defendants could’ve stopped the integrations at any time and that their demeanor was appropriate and had no sign of sociological issues. There were also classified sessions which we, the NGOs, were not permitted to observe and where more information was presented. The Judge has not made a decision yet about the motion to suppress.
Motion to compel the prosecution to meet a discovery request.
The defense team asked the judge to compel the prosecution to meet a discovery request. Defense attorneys argued that they can’t meet their deadlines or submit motions if the prosecution does not turn over discovery as required, and the government keeps withholding information: “I don’t want to spend another 10 years on this case” said Mr. Walter Ruiz, lawyer for one of the defendants, Mr. Mustafa al Hawsawi.
On the same topic, defense attorneys argued the prosecution over-redacted documents, and the classification and declassification of information with no clear guidance makes the defense job very challenging.
During the hearing, I noticed that the defense attorneys when examining witnesses would often point out they intended not to ask questions related to classified/or national security information and that the witness has the option not to answer questions that would call on them to reveal classified/ or national security information.
Mustafa Al Hawsawi’s medical condition.
Mr. James Harrington, Ramzi bin al Shibh’s lawyer, asked Judge Cohen judge to recognize the ongoing after-effects of torture on his client. He said that Mr. al Shibh still hears noises, feels vibrations, itches, and pins and needles on his body. Mr. al Shibh believes that someone is doing this to him. Mr. Harrington also mentioned that having a psychiatrist meet with Mr. al Shibh is not an option, because Mr. al Shibh is still traumatized by the negative experiences he had in the black sites by the psychiatrists.
The prosecution objected, saying that there is no evidence to prove what Mr. al Shibh is arguing and that there is no need to re-litigate this issue.
Motion to compel Mental Health Evaluation on Ammar Al Baluchi
The prosecution submitted this motion in response to the defense’s argument that Mr. al Baluchi has developed “learned helplessness”. Defense Counsel Mr. Connell objected to this request on the basis that there is no need for more mental health examinations of his client. Mr. Connell added that his client has been subjected to at least 400 psychological evaluations and there is no need to have 401 evaluations. The prosecution objected and said that none of the previous psychological evaluations were forensic.
The Judge has not decided on this motion.
Other logistical and scheduling matters were presented to the judge mainly by the defense teams:
The defense argued about “poor conditions” where the defense lawyers meet with their clients, “Camp Echo II”, and that because of a recent storm, the court feed was cut off in the defendants ’ rooms;
The poor condition of defense lawyers’ offices. The prosecution responded and promised to provide a workable solution;
The number of days needed to examine the coming witnesses was discussed. It is expected that examining James Mitchell will take over a week because of the intensity of the documents and that all five defense lawyers and prosecution will want to ask him questions;
Scheduling hearing days and taking out Ramadan from the schedule;
The defense team asked the judge to consider the defendants’ emotional effect of staying in one room for ten hours with the person who tortured them.
Article 11 of the Universal Declaration of Human Rights states:
“Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to the law in a public trial at which he has had all the guarantees necessary for his defense.”
Thus, according to international law, everyone is presumed innocent until proven otherwise in a court of law.
During the hearings on of the prosecutors argued this: “The man on my left [pointing at Khalid Sheikh Mohammed] made a choice and he is the reason we are here”.
That prosecutor was responding to an earlier statement made by Ms. Rita Radostitz, Mr. Khalid Shaikh Mohammad’s lawyer:
“The US government has made some choices, they chose to put the defendants in black sites, to torture them, and to bring and trial them in Guantanamo, and they need to take responsibility”.
Ms. Rita Radostitz later responded to the prosecution pointing out that the presumption of innocence is the core principle of the American judicial system.
Without going in details and pointing at who violated what, observing this case made realize that the decisions this court makes and whatever are the outcomes of these proceedings will not just affect this case, but also will influence the future prosecution of alleged war criminals in Guantanamo and around the world.
Challenges in this case
There are many challenges this case faces. One of those main challenges is the “Classification of information and over redaction of documents.” Just recently the government has unclassified three completely redacted pages, makes me question the basis in which information is considered classified. The redacted documents are here: https://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(AE286EE(MAH)).pdf
It is expected, especially in a high level and sensitive proceedings such as the one before us, that the government may find a need to classify and redact information from the public for national security reasons. Nonetheless, it is crucial to ensure that it is not abused, especially considering that national security is defined by governments, which is not necessarily unified and may result in delay if not obstructing justice.
Torture was another vital focus of the hearing. Though prosecution did not directly deny nor agree to government torturing defendants, It was alarming to learn what the defendants endured in the black sites, according to statements made in court and government documents available to the public. According to Mr. Gary Sowards, Khalid Sheikh Mohammad’s defense attorney:
“Mr. Mohammed was in continuous government custody for four years, was hung naked in his cell, deprived of sleep, anally raped and was subjected to 183 mock executions, that police had kidnapped and abused his children and threatened to kill his children.”
I believe that nothing justifies this type of torture, where government spent millions of dollars to design what they call “Enhanced interrogation” and implement it on people most of whom were released after with no charge.
The hearing setting
One of the things I wanted to observe during my visit is the setting of the military commission hearings and how it is being held. And whether it is different than the setting of criminal hearings of sensitive and classified nature conducted in the United States.
The Observers were seated in a sound-proof gallery separated by a glass window at the back of the courtroom (as shown in the photo). The observing gallery room included NGOs/media observers and the victims’ family members. Both groups were separated by a divider (a curtain). The victims’ family member are chosen based on a lottery system.
Every morning in the gallery before the hearing starts, one of the guards read out the observers’ rules which included no sleeping, no laughing, being respectful, and no doodling or drawing.
Before we entered the gallery, we went through a security check, where our bags were checked and all types of electronics (USBs, chargers, cameras, etc.) were left in a locker at the entrance.
Through the glass window in the gallery, we could see the actual hearing room and what was happening, the judge, defendants, defense attorneys, prosecution, military personnel, and others. We had five TV monitors in the gallery which broadcast the hearing on a 40-second delay. At first, it felt strange, but I got used to it with time. It is startling how long 40 seconds can feel.
Through the glass, we could see the defendants accompanied by military guards to the courtroom. The defendants were dressed in civilian clothes.
One of the things I found interesting was seeing the female lawyers wearing hijabs (headscarf). While talking to observers and lawyers, we came to know that the reason female lawyers wore it is out of respect to their clients. Though it might not be a very compelling reason for many, I think it is a good approach to build trust and establish a relationship between a lawyer and a client.
Hearings usually run Monday through Friday. It starts at 9:00am to 12:00pm or 1:00pm. Depending on the pace of the day, and whether there was a classified session or not, the afternoon session usually starts at 2:15pms. We took multiple recesses in between.
Because of the thunderstorms during the week, we were told that some of the court facilities experienced water leakages, which caused some delays in transporting the defendants to the courtroom. Also, the audio feeds were affected in the media room and in Camp Echo II where defendants can watch their hearings if they choose not to attend.
Not all defendants decide to be present in every hearing, and so, over time, the commission has developed a waiver form for the defendant to sign if he does not wish to be present at the hearing. It is for the judge to decide whether the defendant has voluntarily waived his right to attend the scheduled hearing. This happened several times during the week I was at Guantanamo, and every time an army major (the Staff Judge Advocate – the lawyer for Camp 7, which is the secret camp where these 5 High-Value Detainees (HVDs) are being held) will take the stand and be asked by the judge whether the absent defendant wants to attend and if defendant signed the waiver. The judge also asks the lawyer if they have any objection to the waiver.
My personal experience in Guantanamo
As an individual who only knew Guantanamo from news and movies, I imagined the place to be a big, deserted land-prison, with high fences and military personnel everywhere. The place was not exactly what I imagined. You still can see the desert, high fences, and military personnel everywhere, but not necessarily in their uniforms. There is definitely another side (other than the prison) of life in Gitmo.
The moment you step out of the small Guantanamo airport, you get the vibe of a small town.
Weather and Stores.
The weather is typical Caribbean weather, where it’s hot and humid most of the time, with some rain. You can find pretty much everything you would find in a small town in another country. There is one café that serves Starbucks coffee, one McDonald, a couple of Subway and one big grocery store (Navy Exchange NEX).
We spent the first two days in Guantanamo touring the base and exploring its facilities. We visited several beaches, including Glass Beach and Cable Beach. We also went to a place called “Windmill Hill” where you can see most of the Base. We were asked not to take pictures in certain places and certain directions. We drove by Camp X-Ray (the camp where the defendants were initially brought in January 2002, wearing orange jumpsuits). It is currently closed and from the look of it, there is nothing left but the recollection of those who were detained and those who were guards there.
The more time you spend in Guantanamo, the more you start noticing a lot of laborers from third countries, e.g. the Philippines, Haiti, and Jamaica. We were told by our escorts that these third-country workers are paid very little and that tipping them is very common. This made me question labor rights and fair wages on top of everything else.
Cubans at Guantanamo
There are not many Cubans left on the base. The ones that are still there are old now and have been placed in a homecare facility.
You also see families who live in GTMO with their kids. Yes, there are children in Guantanamo, along with a school that accommodates all grades up to high school.
Our living conditions at Guantanamo
The living for me and other observers/monitors at Guantanamo were decent, not great nor bad. The air conditioning is kept very cold inside the living quarters – which are big tents – so animals like iguanas and banana rats (which are very common in Guantanamo) do not come inside the tents.
Bathrooms and showers, on the other hand, were questionable. Because of the constant rain, we had during the week, one day the female bathroom tent was completely shut down.
A good tip for future observers is to shower at the Guantanamo gym, which most of our group ended up doing for the rest of the week. It is a good facility and you can join some gym classes if you have the time.
We had an escort with us most of the time. They helped us commute from one place to another, and also addressed our requests and answered questions.
There are several food options (not many) at the base. My favorite was the food served at the Mongolian barbecue, held every Thursday night. You pick your veggies and protein and then head to the grill for the chef to cook your selection with your choice of rice or noodles.
The base also has sanctuary spaces for people on the base to practice their religions. We visited the Chapel and I visited the Mosque where I observed the Friday prayer and spoke to a couple of interrupters who work at the base.
Who were the other observers/monitors with me?
The week I was at Guantanamo, NGO representatives were present from the New York City Bar Association, University of Toledo College of Law, Judicial Watch, Human Right First, National Institute for Military Justice, and Georgetown University School of Law. I enjoyed spending time with them, as every one of them had different, very diverse backgrounds and observations on the proceedings.
My last day in Guantanamo Bay – 28 September 2019.
It was time to say goodbye and head back to the U.S. It was only one week, but it was enough to leave me with a profound impression that I will never forget.
I landed at Guantanamo with mixed feelings, and I had mixed feelings when I returned at the end to Joint Base Andrews (Andrews Air Force Base) in Maryland.
It was good to be back home and reflect on everything that I have learned. I do not know if I will go back again to Guantanamo, but I look forward to seeing how the 9/11 case unfolds in the coming pre-trial hearings and the coming 2021 trial.
Overall, it’s been an incredibly enriching experience. It was overwhelming in parts especially when I heard about the extensive enhanced interrogation techniques/torture that the defendant endured. But also, it was promising to see so many people working tirelessly to defend the defendant s’ rights and ensuring justice is served.
Today, after being held for at least 17 years without a court conviction, there is finally a trial date set for January 11, 2021.
Despite the lack of political consensus to shut down Guantanamo and the unclear future of the remaining uncharged detainees in Guantanamo, and regardless of innocence or guilt; every prisoner is entitled to basic human rights: access to justice and a fair trial, right to dignity and not to be tortured, access to legal representation.
It is unclear what the outcome of this trial will be, but it is certainly will impact current and future prosecutions involved alleged terrorists around the world.
I was recently informed that I have been cleared to travel to Guantanamo Bay, Cuba, to observe / monitor pre-trial hearings in the U.S. Military Commission case against Khalid Sheikh Mohammad and 4 other alleged masterminds of the 9/11 attacks on the World Trade Centers and Pentagon. I am a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, and I will be traveling to Guantanamo through the Indiana law school’s Guantanamo Military Commissions Observation Project, founded by Professor George Edwards, who also founded Indiana’s Program in International Human Rights Law, which houses the Guantanamo project.
I am from the United Arab Emirates and received a U.S. government Fulbright scholarship to study for my LL.M. degree at Indiana McKinney School of Law, where I am in the International Human Rights Law Track. I have taken international human rights law classroom classes, and I am currently working as an immigration intern at the International Rescue Committee (IRC) in Silver Spring, Maryland, through McKinney’s Program in International Human Rights Law.
I received my first law degree from UAE University in 2015, and a post-graduate diploma in UAE Diplomacy and International Relations from Emirates Diplomatic Academy in 2017. After earning those degrees, I worked for 2 years in the UAE Ministry of Climate Change and Environment as a legal researcher and 5 months as an analyst in a Minster of State office.
During my work and studies, I developed an interest and passion towards topics related to International Human Rights Law.
How I became interested in the Guantanamo Project
During my LLM year at Indiana McKinney, I learned about two different Projects related to Guantanamo Bay: (a) the project related to Military Commissions (criminal trials held at Guantanamo, assessing a prisoner’s possible guilt); and (b) the project related to Periodic Review Boards (PRBs) (administrative hearings assessing prisoners’ perceived threat to national security and possible release from Guantanamo). Professor Edwards founded both projects, that both permit Indiana faculty, staff, students and graduates to attend, observe, be seen, analyze, critique and report on hearings either in person at Guantanamo Bay, or via CCTV at locations at the Pentagon, Ft. Meade (Maryland), or elsewhere in the U.S.
I applied for the Guantanamo project and recently was notified by Professor Edwards that I received my first round of clearance to travel to Guantanamo, Cuba to attend the Military Commissions hearings.
My preparation formymissiontoGuantanamo
After my initial round of clearance to travel to Guantanamo, while I was waiting for a secondary round of clearance for travel, I started preparing for my possible mission. I have been reading/watching different reports and articles and feeds on the topic from different resources:
Various documentaries, movies, and interviews of former detainees and Guantanamo guards.
Pre- Mission Reflections
As a lawyer who’s working to become a human rights advocate, I am interested in various topics related to human rights. Among those topics are prisoners’ rights; the right to a fair trial, the right not be tortured, etc. Nowadays, it appears that many of these rights have been neglected or overlooked especially when these rights intersect with terrorism, politics and national security. In my opinion, it is worth exploring how we can strike a balance between ensuring justice and human rights while considering politics and national security. Where do we draw the line?
At this moment, my only real Guantanamo exposure has been from observing Guantanamo Periodic Review Board hearings at the Pentagon, and reading and watching the reports, news, documentaries, and movies mentioned above. I believe that by traveling to Guantanamo, I will learn more about the Guantanamo Military Commissions proceedings, and this will offer me a more practical understanding of the current situation there, as I think about how we can assess whether prisoners and other stakeholders’ rights are being fully afforded to them while assuring that justice is being served.
I am looking forward to my mission to Guantanamo Bay, and to sharing my observations on my experience there.
Maitha Salem Altamimi
Master of Laws (LL.M.), International Human Rights Law Track (2019)
Military Commission Observation Project Trial Observer / Monitor
I am a Master of Laws (LL.M.) student at Indiana University McKinney School of Law in the International Human Rights Law track, and I am part of the Law School’s Military Commission Observation Project (or the Gitmo Observer), founded by Professor George Edwards. I am also a Brazilian judge since 2005.
From July 21 to 28, 2019, I traveled to Guantanamo Bay, Cuba, to monitor U.S. Military Commission hearings against Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarek Bin ‘Attash, Ali Abdul Aziz Ali, Ramzi Bin al Shibh, and Mustafa Ahmed Adam al Hawsawi that are charged as being masterminds / facilitators of the 9/11 attacks on the World Trade Center and the Pentagon.
As I mentioned in my first post to Gitmo Observer, a Monitor / Observer traveling to Guantanamo Bay, I have the role to attend, observe, be seen, analyze, critique, and report my observations, “helping to ensure transparency, the rule of law, and /helping to ensure that the promises of international human rights law protections are fulfilled.”* (you can read at Guantanamo Bay Fair Trial Manual).
Besides, as a Brazilian judge, I feel obligated to share the information I learned with the legal community in Brazil and Latin America, who may benefit from learning about the Military Commissions. And this blog is about two recent experiences.
First, on September 11, 2019, I gave a lecture by videoconference to graduate students and master’s degree students of UniRitter, a Law School in Porto Alegre, Brazil, by the invitation of Professor Paulo Fayet.
Professor Fayet (Doctor in Criminal Sciences by the University Roma Tre, Italy, and a Professor of UniRitter’s Master Program) mentioned that “Judge Pereira’s lecture was a unique opportunity for the students of our institution to get to know the peculiarities of the Military Commissions in Guantanamo Bay.” He added that the in-depth approach of Judge Pereira brought new viewpoints to the students about this important topic of International Human Rights.”
Second, last November 6, I gave another lecture by videoconference to students of FADERGS, which is also a Law School in Porto Alegre, Brazil. This time I was invited by Professor Guilherme Antunes (Doctor of Laws by the University UNISINOS, Brazil and Director of the Master Program in FADERGS) and by Professor Tiago Castilhos (Master of Criminal Sciences and Doctor’s degree candidate at PUC/RS).
Professor Castilhos mentioned that “Judge’s Pereira lecture was one rare opportunity for the students to get to know in detail about the reality in Guantanamo Bay.” Professor Antunes said that “Brazilians have insufficient knowledge about the Military Commissions. So those reports brought by Judge Pereira, as part of the IU McKinney Military Commission Observation Project lead by Professor George Edwards, are essential for the world to be aware of what is happening in Guantanamo Bay.”
In Both lectures I brought the students details of the observer’s mission; explained how the attacks were planned based on the US Government’s charges against the alleged masterminds; described how the Military Commissions work; mentioned the issues concerning the “enhanced interrogation techniques” due process, judicial independence, and other issues related to the Commissions; and, finally, I described my week in Guantanamo Bay. The slides below are examples of what was shown to the students.
I will be finishing my LLM Program next December, and I intend to keep reporting my experiences in Guantanamo Bay in Brazil. As part of my mission, next year, I will present my experiences also to Brazilian Judges and lawyers to raise the awareness of the international community to the Military Commissions in Guantanamo Bay.
Daniel Pereira, International Human Rights LL.M. Candidate,
My name is Claire Black and I am a law student traveling to participate in the Military Commission Observation Project in Guantanamo Bay, Cuba. As I am preparing to board the flight to Guantanamo Bay, I will describe my pre-departure preparation and what I expect as we board the plane to Cuba for the week. Monitors are required to arrive in Washington DC the day before a scheduled flight to Cuba because we are to report to Andrews very early in the morning on the day of the flight.
Since I was required to arrive by Sunday, my husband and I decided to drive in Friday night and spend a couple of days here so I could be prepared and not tired from a day of travel when I got to Andrews for my week of duties as a monitor. It was chilly in DC, but still warm enough to walk around comfortably, so we walked to several special Washington DC landmarks over the weekend including the National Portrait Gallery, the new National Museum of African American History and Culture, the National Archives, and the Washington and Lincoln Monuments.
I arrived at Andrews to meet our NGO escort, Jennifer, and the other NGO monitors at 6:30am. Our flight leaves Andrews at 11am. There are eight of us attending this week’s hearings as human rights monitors. I collected the other NGO representative’s emails and sent them PDF versions of the Know Before You Go Guantanamo and Guantanamo Bay Fair Trial Manuals. We then checked in for the flight.
The process and check-in counter were similar to checking in to a commercial flight, except that they asked me for the travel papers that the pentagon prepared and sent to us and they asked me to estimate our weight inclusive of my carry-on bags. We boarded the plane, a commercial B-767 chartered for the flight, and headed to the back three rows, which are reserved for NGOs. The plane had seven seats across, and the flight was not very full, so we all spread out for the 3.5 hour flight. When we arrived, we took a 15-minute ferry boat ride across the bay to Camp Justice, where our quarters are.
The rest of day one was spent getting our required IDs for entry into the legal complex and being briefed on rules and procedures. Particularly important were the rules about what we can and cannot photograph on the base. No photographs may be taken of the area where we attend court.
Schedule for the Week
week, there are motions hearing scheduled in the case of U.S. v. Majid Shoukat Khan set for Tuesday, November 19 to
Thursday, November 21, 2019. Though we
are prepared that schedule changes can occur any time, including after we
arrive at Guantanamo Bay. Already, we were informed this evening, that there is
a closed session of court in the morning that we are not invited to. We are to
arrive for court tomorrow at 1pm.
We are scheduled to return to Washington DC on Friday, November 22. I will write this week about what I observe and experience both inside and outside of the courtroom.
In August 2019, I was selected to travel to Guantanamo Bay, Cuba, to monitor hearings as a human rights observer.
How I Found Out About the Project
I am a third year Juris Doctor student at Indiana University McKinney School of Law, and I will be traveling through our law school’s Military Commission Observation Project, which was founded by Professor George Edwards. I am pursuing a certificate in international and comparative law, and in the 2019 Spring I took a class in International Human Rights Law taught by Professor Edwards. In class, we discussed Guantanamo Bay through the lens of international human rights law. We also discussed opportunities that IU McKinney students have to travel to Guantanamo to witness first hand military commission proceedings. I became interested in traveling to Guantanamo to use the principles we learned in class while serving as a human rights monitor.
I applied to serve as an Observer / Monitor and was quickly selected to serve at a hearing just one month later. I was excited for the opportunity to serve, but also anxious about getting all of the necessary administrative tasks.
A Last Minute Schedule Change
First, the Pentagon’s Office of Military Commissions informed me that I had been cleared to monitor pre-trial hearings in the case against Mr. Hadi al-Iraqi (or, as he calls himself, Mr. Nashwan al Tamir), an alleged high ranking member of Al Qaeda Iraq who allegedly liaised with the Taliban and perpetrated war crimes. However, two days before we were scheduled to leave for Cuba in October 2019, those hearings were postponed.
Professor Edwards had warned me about the possibility of cancelled or delayed hearings, and I was prepared. However, I still felt sad that I would not be able to participate as a monitor at Guantanamo.
The military’s plans can change frequently when it comes to the proceedings at Guantanamo Bay. I understand that Mr. al Iraqi’s / al Tamir’s hearings are at times cancelled or postponed in part because he has recently undergone several surgeries for a degenerative disc disorder.
A week after the cancelled trip, still in October 2019, I was invited to travel to Guantanamo to monitor pre-sentencing hearings for Mr. Majid Khan November 18-22 and I accepted.
I Am Now Monitoring Mr Majid Khan’s Hearings
In 2012, Mr. Khan pleaded guilty to various crimes, and agreed to provide information related to other Guantanamo prisoners, in exchange for a possible lighter sentence. His original guilty plea was for the crimes of conspiracy, murder in violation of the law of war, attempted murder in violation of the law of war, providing material support for terrorism, and spying. After a D.C. circuit court ruled in a separate case that the charge of material support for terrorism could not be appropriately tried at a military commission, the Military Commission Convening Authority later agreed to allow Khan to withdraw his guilty plea to that charge. His guilty plea on the other charges remain in place, and the upcoming hearings relate to sentencing on those charges.
My role as a Observer / Monitor
As an Observer / Monitor with the Military Commission Observation Project, my role is to attend, observe, be seen, analyze, critique, and report my observations.
I will endeavor to be as independent and objective as possible. I have been studying the Guantanamo Bay Fair Trial Manualthat Professor Edwards and previous IU McKinney observers have put authored. I am hopeful that these Manuals, coupled with my communications with other former Observers / Monitors, and my own independent study will guide me as I participate with the goal of trying to understand whether international human rights law protections are being upheld.
I am also studying the Know Before You Go to Guantanamo Mannual, which is a guide crowdsourced from the many observers who have gone before me and an excellent primer on what one can expect on many topics varying from what to bring and where/when to eat to what the sleeping quarters are like and how to access resources while at Guantanamo.
I have communicated with several previous participants who were very helpful and were able to give me the most up to date information possible about what things are like at Guantanamo Bay.
I will write again as I leave Andrews Joint Airforce Base in Washington DC and head to Guantanamo Bay, Cuba in a couple of weeks to fulfill my role as observer.
It’s Sunday morning, and I am scheduled to fly to Guantanamo Bay, Cuba, tomorrow morning, Monday, 19 August 2019.
But, my years of traveling to Guantanamo have taught me that I could arrive at Joint Base Andrews (Andrews Air Force Base) tomorrow, and the trip could be cancelled. I’m not talking about a cancelled flight because of a plane’s mechanical issue, with everyone waiting for a replacement plane, or a possible weather delay. Instead, the 10 days of U.S. military commissions I am slated to monitor at Guantanamo could be scratched, with there being no need to fly down this week.
In the over 15 year since I first became involved with
Guantanamo, I learned to expect the unexpected.
This article describes what is expected to happen during the upcoming week of hearings in the case against a Guantanamo detainee the U.S. government calls Hadi al Iraqi, but who prefers to be called by what he says is his birth name, Nashwan al Tamir.
But first, I’ll explain how I got booked on this flight
My Guantanamo mission
I was a professor of law at Indiana University McKinney School of Law when in 2003 a Pentagon officer asked if I would do a project related to over 650 detainees then being held at Guantanamo. My Indiana students and I researched rights afforded to defendants at Nuremberg and Tokyo after World War II, thinking that at a minimum, rights afforded to defendants then should be afforded to any detainees facing trial by military commission at Guantanamo.
After that project ended, my Indiana students (and Stetson law students) and I worked on the cases of Australian David Hicks (whose 2007 proceedings became the first completed U.S. military commission since World War II), and Canadian Omar Khadr (who was 15 when picked up, who was then taken to Guantanamo and charged).
Fast forward, and I founded the Military Commission Observation Project at Indiana, through which we send faculty, staff, graduates and current students to Guantanamo to monitor hearings, exploring rights afforded to all Guantanamo stakeholder groups. Stakeholder groups include defendants, victims and their families, Guantanamo guards, defense and prosecution lawyers, witnesses, media, observers / monitors, and others. (For more information on different categories of Guantanamo stakeholders, see www.GuantanamoBayReader.com).
Our Project spells out the mission of Guantanamo Observers / Monitors as follows: To attend, monitor, be seen, analyze, critique and report on Guantanamo proceedings.
For our Guantanamo Bay Non-Governmental Organization (NGO) Observer / Monitor Challenge coins, see here.
Hadi / Nashwan is an alleged high-level member of al
Qaeda Iraq who allegedly liaised with the Taliban and perpetrated war crimes in
Afghanistan and Pakistan in 2003 – 2004. The government claims that he is the
second highest ranking al Qaeda member in U.S. custody.
He is charged with allegedly
commanding al Qaeda and Taliban insurgents who attacked U.S. and allied forces in
Afghanistan and Pakistan after the U.S. and coalition invaded after 9/11.
The specific war crimes
charges against him include denying quarter, attacking protected property,
using treachery or perfidy, and attempted use of treachery or perfidy. Also, the
US alleges that he conspired to commit war crimes. Allegedly, persons under his
command planted IEDs that killed coalition soldiers on roads, fired at a U.S.
military medical helicopter, and attacked civilians including aid workers.
He was taken into
custody in 2006, arrived in Guantanamo in April 2007, and arraigned in June
2014 on war crimes charges that carry a maximum sentence of life in prison.
least the last two years, he has suffered from degenerative disc disease, for
which he has undergone at least 5 surgeries by military doctors at Guantanamo.
military judge has acknowledged that the medical condition causes pain and
extreme discomfort for Hadi / Nashwan, making it difficult for him to sit in a
regular chair in the courtroom for extended periods. He has used a special seat
in the courtroom, and has been wheeled into the courtroom in a hospital bed.
Furthermore, a special cell that can fit a hospital bed has been constructed
next to the courtroom, for him to use during court breaks.
was scheduled to begin in February 2020. It is unclear whether it will go forward,
given his health, and given that several weeks of hearings in his case were
suspended during his defense counsel’s 12-week maternity leave (including
cancelled sessions for June and July 2019).
What is expected to happen this week?
This week, the judge will likely deal with any issues related to Hadi’s / Nashwan’s medical condition. It is likely that the defendant will be wheeled into the courtroom on Wednesday morning, 21 August, in either a hospital bed or a modified wheelchair.
Then, the judge is scheduled to listen to defense and
prosecution lawyers argue a number of motions, all of which were listed on a
docket that circulated a month or two ago. These motions, which are listed
below, deal with a range of issues, including defense requests for information
about and access to places where Hadi / Nashwan and others were confirmed, and conflicts
of interest of war court personnel.
Motions on the docket are:
Defense Motion to Compel Discovery of Information Related to and Access to Buildings in which the Accused or any Potential Witnesses Have Been Confined (AE 137);
Defense Motion to Compel Defense Examination of Accused’s Conditions of Confinement Onboard Naval Station Guantanamo Bay (AE 139);
Defense Motion to Compel Appointment and Funding of Defense Mitigation Specialist (AE 150);
Defense Motion to Compel Production of Discovery Relating to Rules of Engagement Requested in Defense 51st Supplemental Request for Discovery (AE 156);
Defense Motion to Dismiss on the Basis that the Convening Authority has a Personal Interest in the Outcome of the Military Commission (AE 157);
Defense Motion to Dismiss because a Military Judge and Law Clerk Sought Employment with the DOD and DOJ (AE 150);
Defense Motion to Compel Discovery of Information Related to Public Statements Made by RDML Ring Concerning Conditions of Confinement (AE 150); and,
Defense Motion for Judge Libretto to Disqualify Himself under R.M.C. 902 (AE 150).
Conclusion – What Will Happen This Week?
This coming week at Guantanamo, like all weeks at Guantanamo,
We will need to wait to see how matters unfold this week.
drove from Indianapolis, Indiana to Andrews Air Force Base (Joint Base Andrews)
to catch a military flight to Guantanamo Bay, Cuba to monitor U.S. Military
Commission hearings in the case against 5 alleged masterminds of the 9/11
attack on the World Trade Center and Pentagon.
am well aware of my responsibilities, but I am also excited to witness history,
in a process that I learned about as a Master of Laws (LL.M.) student at
Indiana Univesity McKinney School of Law, and that I know people in my home
country of Brazil, where I have been a state court judge since 2005.
am representing the Indiana McKinney Program in International Human Rights Law,
that under the direction of founding director George Edwards, sends students,
faculty, staff, graduates to Guantanamo. My mission is to attend, observe, be
seen, analyze, critique and report on proceedings.
this blog post, I will talk briefly about my trip from Indianapolis to DC, and
share a little about my experiences at Andrews this morning.
The week before my departure to Guantanamo Bay
Today, Sunday, 21 July 2019, is the day my flight is scheduled to depart for Guantanamo. I’ll tell you about that shortly. But first, I’ll tell you about the week leading up to today.
last week has been very busy.
before I left Indiana, I received a bunch of e-mails related to my mission.
Some of those emails came from the Pentagon’s Office of Military Commissions and
contained final instructions related to the mission, and documents containing helpful
information about the trip. The Pentagon also sent various documents that I
needed to print copies of to carry on the trip.
also received e-mails from one of the 5 defense teams in this case, containing
a motion hearing summary for the week.
Furthermore, I received multiple messages from Professor Edwards related to the mission, including reminders to forward all Pentagon messages to him upon receipt, to complete and turn in a checklist designed to help ensure that nothing falls through the cracks in the final days, and to have in place plans to communicate from Guantanamo.
Professor Edwards is the principal author of two Guantanamo documents that Indiana observers carry to Guantanamo and distribute to observers from other programs.
was instructed to stop by the Law School before my trip to pick up these
documents to carry to the other observers. I was scheduled to leave Indiana on 13
July 2019, several days before the 21 July 2019, since I was going to drive
from Indiana to DC and spend time in DC with before my Guantanamo plane left.
stopped by the Law School and picked up 8 copies of each of the two Manuals,
since there would be a total of 8 observers on this trip. I began to drive to
Washington with my family.
I left Indiana, I received an e-mail message from Ms. LaTasha Tripplett, who is
the Faculty Assistant who works with Professor Edwards on our Military
Commission Observation Project.
Tripplett informed me that the printer had misprinted the Guantanamo Bay
Fair Trial Excerpts Manual. She told me that the printer was reprinting
them, and that she would send 8 copies to me before the plane left. I gave her
the address of my hotel in Washington, DC, and she was able to send them. They
arrived on time, and I got them as soon as I checked into the hotel? It is
mandatory that we check our e-mails regularly. That is a good rule, and in
place for good reason!
for that, Ms. Tripplett!
mentioned, I decided to drive to D.C with my family, so we all could enjoy some
time in the capital of the United States before I depart for Guantanamo Bay,
and so they can enjoy the city while I am in Guantanamo.
arrived in D.C Friday night, 19 July 2019, so we had plenty of time to visit
some points of interest, such as the Washington Monument, World War II
Memorial, and the Lincoln Memorial.
Our visit was taxing, since the weather was scorching. There is an Excessive Heat Warning for Washington D.C, with the temperatures around 100 ºFahrenheit (almost 38 ºC), feeling like 110 ºF (around 44 º C). We did not spend too much time outside in the heat. We had to come back to the controlled temperature in the hotel.
The day of the trip This morning I had to get to the Joint Base Andrews, Maryland, at 6 am to begin my observation mission in Guantanamo Bay. It was a 25 minutes Uber drive from the Grand Hyatt Washington, which cost me US$ 23. To avoid delays, I left the hotel around 5am, then I got to the Joint Base at 5:25am.
I got there, I went to the Andrews Visitor Center.
I texted Cathy Nardo, the escort for all the other observers, and I found five more observers. We joined the other two observers at the terminal. Each of the 8 of us is from a different “NGO” – non-governmental organization. Our Indiana program founded by Professor Edwards is considered an NGO.
Ms. Nardo picked us up at the Visitor Center right after 6:00am, and we drove onto the main part of the Andrews Base, just a few hundred yards / meters from the Visitor Center. We then drove about 10 minutes us to reach the Andrews Air terminal. This is the Air Base where Air Force I is, the plane flown on by the President of the United States.
At the terminal we immediately checked in for our flight and gathered in children’s nursery located in the terminal, where the observers could get to know each other and wait for further instructions. While there, I met Terry Rockefeller, of the Peaceful Tomorrows, whose members are family of the victims of the 9/11 attacks. She has been to Guantanamo Bay 8 times before and will have a lot to teach me during this week. Cathy took some observers for coffee and, after that the observers were briefed by the escort later about the last-minute information regarding our travel. I distributed the Indiana manuals there and the fellow observers immediately started reading them, finding them very helpful for the mission to come.
I have mixed emotions while I wait to get on the plane. They range from the thrill to be an eyewitness of a historic event to the most basic feeling that I haven’t completed all the steps I should take to start the mission.
flight is scheduled to depart Andrews at 10:20am, which means that I will have
enough time to write my first impressions of my mission. The plane today is a
charter plane of the company Miami Air. We
are scheduled to arrive at at Guantanamo Bay at 1:30pm.
Soon I will share some information from Guantanamo Bay.
PS: Sorry for the delay. Due it the busy schedule, I could only post one day later.
I am a Master of Laws (LL.M.) student at Indiana University McKinney School of Law in the International Human Rights Law track, and I have been selected to travel to Guantanamo Bay, Cuba, to monitor U.S. Military Commission hearings against five alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon. I am part of the Law School’s Military Commission Observation Project (or the Gitmo Observer), founded by Professor George Edwards.
I became a judge in Brazil in 2005, working in civil and criminal courts. In this capacity, I deal with the most diverse areas of law, including human rights and prisoners’ rights. Those subjects prompted me to come to the United States to join the International Human Rights LLM Program in IU McKinney, where I am studying these areas.
How I became interested in the Guantanamo Project
At the McKinney Law School, I came across the Guantanamo Bay Project of the Program in International Human Rights Law (PIRHL) following the advice of Judge Aline Fagundes, a law student at IU McKinney and a Brazilian judge who went to Guantanamo Bay through this project in 2016 and 2017. Judge Fagundes attended the cases against the alleged masterminds of the 9/11 attacks on the World Trade Center and the 2000 suicide bombing of the U.S.S. Cole off the coast of Yemen. Furthermore, she traveled to Ft. Meade, Maryland to monitor hearings that were broadcast live from Guantanamo into a secure room at the Maryland base. And, she traveled to the Pentagon where she observed a different type of Guantanamo proceeding – a Periodic Review Board (PRB), which are not criminal proceedings, but administrative proceedings in which Guantanamo detainees ask the U.S. government to release them.
Judge Fagundes published about her experiences in
several media, such as in the GITMO
Observer website, and in a Brazilian newspaper, Zero Hora (you
can read the article in Portuguese here).
Judge Fagundes recently gave a lecture in the School of Labor Judges in Porto
Alegre, Brazil, about her Guantanamo Bay experiences.
Judge Fagundes in front of the plane to took her to Guantanamo
on her first visit there
Judge Fagundes, in a recent lecture about her
experience, in Porto Alegre, Brazil.
The 9/11 hearings – my travel
I was cleared by the Pentagon to travel to Guantanamo
to monitor hearings that are scheduled for 21-27 July 2019, in which Khalid
Shaikh Mohammad, Walid Muhammad Salih Mubarek Bin ‘Attash, Ali Abdul Aziz Ali,
Ramzi Bin al Shibh, and Mustafa Ahmed Adam al Hawsawi are charged as being masterminds
/ facilitators of the 9/11 attacks on the World Trade Center and the Pentagon.
Ramzi Bin al Shibh was captured in 2002, while the
other four defendants in 2003. All of them were held in secret CIA prisons
(“black sites”) before they were transferred to Guantanamo, between 2006 and
2007. Khalid Shaikh Mohammad and his co-defendants are charged with conspiracy,
attacking civilians, attacking civilian objects, murder, destruction of
property, hijacking, and terrorism.
My responsibilities as a Monitor / Observer
As a Monitor / Observer traveling to Guantanamo Bay, I
have great responsibilities.
First, as an observer, my role is to attend, observe, be seen, analyze, critique, and report my observations, “helping to ensure transparency, the rule of law, and /helping to ensure that the promises of international human rights law protections are fulfilled.”* (you can read at Guantanamo Bay Fair Trial Manual). I pledge to be independent and objective in my observation / monitoring, and to endeavor to have and keep an open mind, with limited preconceived ideas about what I will experience at Guantanamo Bay.
Second, as a Brazilian judge, I feel obligated to share
information I learn with the legal community in Brazil and Latin America, who
may benefit from learning about the Military Commissions.
Finally, as a member of Indiana McKinney Military
Commission Observation Project, I have a great responsibility with all other fellow
observers, current and to come, helping them to get the most out of their
missions, sharing relevant information about my experiences with them, so that
the goals of our Project might be realized.
Notwithstanding the responsibilities, it is important
to notice that Professor George Edwards, as the director of the PIHRL, excels in
his role of leader of the project. He takes care to provide the observers with
all the information they need to succeed in their mission. That is why I am
feeling comfortable and confident in my role as an observer.
How I am preparing for my mission to Guantanamo
While I wait for the travel to Guantanamo Bay, I have
been using information from several sources to prepare for my task.
I also have been reading all the blogs and the
manuals, articles related to Guantanamo in the Foreign Affairs Magazine, The
New York Times, and websites, particularly the Office of
Military Commissions, where I can find information about
the hearings and documents related to the cases. I have paid attention to the Twitter
Feed of journalist Carol Rosenberg,
of the New York
Times, and paid attention to articles she published when she worked for the
I am looking forward to playing my role as an observer
and to sharing my thoughts with the U.S. and international communities about
the work of the Military Commissions in Guantanamo Bay.
Pereira, International Human Rights LL.M. Candidate,
While I was a student at Indiana University Robert H. McKinney School of Law, earning my Doctor of Jurisprudence (J.D.) with a Graduate Certificate in Human and Civil Rights (2017), I learned about our school’s program related to the U.S. Military Commissions at Guantanamo Bay, Cuba. Students, faculty, staff and graduates are permitted to travel to Guantanamo Bay, Cuba to monitor military commission hearings, against alleged war criminals, while sitting in the viewing gallery live in the courtroom. We could also travel to Ft. Meade, Maryland, to monitor the hearings via CCTV.
I am now scheduled to travel to Guantanamo Bay, for hearings in the case against five alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon.
The Pentagon granted a number of Non Governmental Organizations permission to send “NGO Observers” to monitor the hearings, trials and other U.S. Military Commission proceedings held at Guantanamo Bay, Cuba. Professor George Edwards, of the Indiana McKinney law school, founded its Program in International Human Rights Law, to which the Pentagon granted NGO Observer status.
Professor Edwards then created the Military Commission Observation Project (MCOP) to implement NGO Observer responsibilities. As a selected NGO observer, my mission is to: (1) attend; (2) observe / monitor; (3) be seen; (4) analyze; (5) critique; and (6) report on the proceedings.
My first Guantanamo observation was in the spring of 2018, when I traveled to Ft. Meade to monitor hearings in the Guantanamo case against Hadi al Iraqi / Nashwan al Tamir case, who is an alleged high level al Qaeda Iraq member who liaised with the Taliban.
I have been cleared by the Pentagon for travel to Guantanamo Bay, Cuba to monitor the military commission hearings in the case against Khalid Shaikh Mohammed and four other alleged masterminds of the 9/11 attacks.
NGO Observers help ensure not only transparency, but also that the rule of law is respected and maintained. NGO Observers play a critical role as the eyes and ears of the outside world into Guantanamo Bay.
It is important to consider the rights and interests of all stakeholders, not just the rights and interests of the accused/detainees, which may immediately come to mind. But what about the rights and interest of the prosecution? The victims and their families? The press? I believe our visibility and willingness to be seen during these proceedings holds everyone to a higher standard because our physical presence represents an extension of the public.
I am scheduled to arrive in Guantanamo Bay on Saturday, 15 June 2019 and leave on Saturday, 22 June 2019. I am anxious to see if my schedule will play out as anticipated. Participation as an NGO Observer requires significant patience and flexibility as you prepare to monitor proceedings due to the schedule changes, and sometimes cancelations.
Reflections before GITMO
As I get closer to the dates for traveling to Guantanamo Bay, I am feeling a range of emotions. I am excited, anxious, and a bit nervous. As my mission is approaching, I have had a strange feeling in the pit of my stomach daily as it becomes a reality that I will soon be within eye view of men charged with masterminding the 9/11 attacks. I feel this eerie feeling lingering in the atmosphere. Even if one does not recognize any of the names of the alleged masterminds behind the 9/11 attacks, you are familiar with the tragedy that occurred on September 11, 2001. It’s been a bit surreal to know I’ll have the opportunity to observe these historical proceedings in person.
I was in the 5th grade at Sunnyside Elementary the tragic day of the 9/11 attacks. Even reflecting on that day from the perspective of a young child, the day still feels so surreal to me. Over the last few days, on my way home from work, I have taken time to stop by my elementary school to revisit the history of what that painful day felt like for me as a child. It’s been really important for me to soak up those emotions and memories again before traveling to Guantanamo. That day will always be etched in the hearts and minds of so many Americans and discussed for generations to come.
Photo of Sunnyside Elementary in Indianapolis, Indiana on Tuesday, June 11, 2019.
I know as NGO observers we are being provided an extraordinary opportunity and I do not take that lightly. Although most people are aware domestically and internationally about the 9/11 attacks, few people have an understanding about the hearings, trials and other U.S. Military Commission proceedings held at Guantanamo Bay, Cuba. As observers we are provided an extraordinary opportunity and I consider it our duty to share as much as possible about our experiences at GITMO.
It is an honor to have been nominated to serve as an NGO Observer, and I look forward to fulfilling my NGO responsibilities.
Nicole M. Burts, J.D., Indiana University McKinney School of Law
Observer, Guantanamo Bay, Cuba, Military Commission Observation Project