A confusing start to the morning but it looks like everything is working out. Spending the time in the terminal getting to know the other observers, boarding pass in hand! 

About to board the plane to Guantanamo. 

Guess who I bumped into boarding the plane to Guantanamo Bay with me today? Richard Kammen, of Indianapolis. He is Learned Counsel in one of the GITMO Military Commission cases.

Apparently he’s hitching a ride to Guantanamo to visit his client–al Nashiri — who allegedly masterminded the USS Cole attack in Yemen. He has no links with the Hadi case I’m monitoring this week. 
We thank Rick for coming to Indiana University McKinney School of Law to talk with us about his GITMO case.

NGOs reading the Guantanamo Bay Fair Trial Manual we produced Indiana University McKinney School of Law as we wait for our GITMO flight.

We’re at Andrews Air Force Base.  

I just arrived at Andrews Air Force Base, just outside of Washington, DC, for my military flight to Guantanamo Bay, Cuba. This time I’m traveling as a non-governmental organization (NGO) observer on proceedings in the U.S. Military Commission case. I’ve been to Guantanamo Bay (also known as Gitmo) as an expert witness, on a media / research trip for my upcoming book (The Guantanamo Bay Reader), and as an NGO Observer. The rules on the ground have been different each time, in part based on category of travel. But I’ve also learned that rules change even for people in the same category. It’s always interesting to compare notes with other repeat Guantanamo Bay visitors.
I’ve had a chance to meet some of the other 6 NGO representatives who will be with us on this trip. They come from Human Rights First, the American Bar Association, Judicial Watch, the Pacific Council on International Policy, and Georgetown and Seton Hall Law Schools. Several of the Observers have deep knowledge on Guantanamo Bay issues, which will make the trip all the more interesting for us.

I’ve also looking forward to caching up with our Military Commission NGO escort, who will be with us most waking moments between now and when we return to Andrews late Thursday afternoon. Fortunately, our escort this trip is one of the escorts from my first NGO trip, a couple of years ago. It should be a good trip.

Who is here? What are we doing?

There are dozens of non-NGO representatives set to board our flight to Guantanamo. They are / could be Hadi’s defense counsel, prosecutors, the judge and the court staff, victims or family members of victims, media, and others associated with the Military Commission generally or associated with the case against Hadi. Passengers could also include people who are permanently stationed at Gitmo, returning from temporary duty or returning from vacation. 

The Andrews air terminal is much like an air terminal in any small US city, with check in counters where you get your boarding pass, scales to weigh your check-in luggage, bus station like seating where you sit and way – and wait, x-ray machines to scan carry-ones and metal detectors to walk through, and vending machines with soft drinks and junk food. One difference is that the air ticket cost is zero for NGO Observers, who travel as part of the Pentagon’s stated desire to be transparent with the U.S. Military Commissions.

9/11 lead defendant Khalid Shaik Mohammad, in the Guantanamo Bay courtroom. He was not present for the morning session, but was present for the afternoon session (Sketch by Janet Hamlin)

I rolled out of bed at 5:30 am this morning, and was driven from my Guantanamo Bay tent to breakfast at 6:30 am at the Gold Hill Galley. At 8:15 am, the other observers, our escort and I walked, as a group, the 100 yards or so over at from our camp to the courtroom to arrive at the first day of the hearings plenty of time prior to the scheduled 9am start time.  We made our way through security (similar to taking a flight, but with no electronics allowed) and into the viewing gallery in the courtroom.

We viewed the hearings live behind a sound-proof glass, but the audio is on a 40 second delay to allow the government to cut the audio if any confidential information is revealed. There are video screens hanging down from the ceiling that show a video feed that matches the 40 second audio delay. There is a red light in the courtroom next to the judge (similar to the light that illuminates when a goal is made) that lights up if confidential information is revealed. If that occurs, the hearing is stopped and the viewing gallery is cleared.  The 40 second delay can lead to somewhat  as, for example, we hear the all rise from a guard in the viewing room with us in real time when the judge rises to leave at the end of a session when the judge is leaving the room, but via the video and audio feed, we are still hearing the judge or counsel speak.

At one point Mr. Schulz, who was at the hearing to argue on behalf of the press movants regarding AE400 left the courtroom to return to join us in the gallery after addressing the court (he did not have a security clearance to stay in the court room), but, because of the delay, the judge was still addressing him via our feed (despite that being 40 seconds earlier). He heard this and started rushing back out of the gallery only to realize what had happened before he re-entered the courtroom. He smiled sheepishly and muttered that he thought the judge was addressing him as he made his way back to his seat.

A Brief Summary of Substance

Khalid Sheikh Mohammed (KSM) was not present at the morning hearing, but he did come in the afternoon. We were not told any particular reason why KSM was not present. Walid Muhammad Salih Bin Attash was not present either and stated that he would not come to the hearing because Ms. Bormann and Mr. Schwartz were still his attorneys.

I was able to witness what I believe is a first at the Military Commissions: a motion filed by a third party (the press) from outside the Military Commission system. On Wednesday, I will witness another rare event; one of the 9/11 defendants, Mr. Bin al Shibh, will testify regarding to external sounds and vibrations he claims has been subjected to despite an order from the Military Judge prohibiting such actions.

At this point it’s hard to imagine this case making it to trial anytime soon. The current schedule for the hearings are in two week blocks every two months and there are many issues to litigate.  The case is still in discovery and, for example, we spent about half the day today listening to the defense argue that the prosecution gave their clients broken laptops and this is an issue in which both parties are in relative agreement. Both parties agree that the defendants should have laptops to assist them in understanding and to expedite the case. The disagreement lied in whether or not certain restrictions such as disabling the CD/DVD drive placed on the laptop violate the Judge’s prior order to return the laptops to the defendants or whether Government can and/or should provide the laptops with restrictions decided on by the Joint Task Force. In addition, the Government’s AE 397 motion would delay production of discovery by the Government until October 2016. Once that discovery is received, the defense will need ample time to review it. That discovery will undoubtedly lead to more discovery and/or motions related to the new information obtained and the process continues. The closure of Guantanamo Bay’s detainee detention facility is not out of the question as just today the Pentagon committed that they would send Congress their plan to close the Guantanamo Bay Prison Facility.

Chief Judge Pohl originally presided over both the al Nashiri case and the 9/11 case.

The unofficial, unauthenticated transcript for the day is available on the military commmissions website, but, generally, the day was spent discussing:

– AE400 (the motion filed by members of the press moving to unseal a transcript of a

public hearing of the Military Commission which was held on the 30th of October, 2015),

– a request for reconsideration regarding bringing in an expert witness to testify on the issue of female guards touching the defendants in the normal course of their job in motion AE 254YYY,

– AE 254Y, a request for the judge to order that the defendants not be subjected to physical contact by female guards as such physical contact is a violation of their rights under the Religious Freedom Restoration Act.

and

– AE 182, a request for an order that the government comply with a previous order to return laptops to the defendant.  Defense alleges that the government failed to return the computers that the defendants previously had as they were returned with certain restrictions on their functionality that make them useless.

Plans for the Remainder of the Week

The judged ended the hearing laying out he plan for the week accordingly (summaries are taken from:

1. AE 112 defense motion for discovery & related AE 397 (also discussed last week) filed by the Government to consolidate several motions related to discovery of information related to the CIA’s Torture program. Approval of the consolidation would delay production of Government discovery to October 2016.

2. AE386 Defense Defense Motion to Invalidate Touhy Requirements as Non Reciprocal Discovery (to include filings in the AE 350 series of motions addressing Touhy) Mr. al Baluchi requests the Military Commission determine that Touhy regulation (which governs whether and how a government agency witness, from an agency that is not a party to the litigation, may be subpoenaed to testify) does not apply here since the regulation amounts to a requirement on the defense that does not apply to the Prosecution, and therefore violates the Due Process Clause and the Detainee Treatment Act.

3. AE018 Series: 11 motions on the docket under the AE018 umbrella:

AE018EE Defense Defense Motion to Compel Discovery Responsive to Mr. Mohammad’s Request for Discovery Dated 14 March 2014; The Defense requests the Military Commission compel the production of all documents contained in Mr. Mohammad’s Request for Discovery on 14 March 2014.

AE018FFF Defense Defense Motion to Compel Production of Witnesses for Evidentiary Hearing on Motions in the AE018PP Series; Mr. al Hawsawi requests the Military Commission require that the Government produce witnesses in the AE 018PP series of motions, which includes the relevant JTF personnel involved with the seizure of privileged legal materials.

AE018W Defense Joint Defense Motion to Amend AE 18U, Privileged Written Communications Order The Defense seeks an order from the Military Commission amending the Privileged Written Communications Order (AE018U), which governs how defense counsel and the accused can communicate in writing.

AE018EE Defense Defense Motion to Compel Discovery Responsive to Mr. Mohammad’s Request for Discovery Dated 14 March 2014 The Defense requests the Military Commission compel the production of all documents contained in Mr. Mohammad’s Request for Discovery on 14 March 2014.

AE018FFF Defense Defense Motion to Compel Production of Witnesses for Evidentiary Hearing on Motions in the AE018PP Series Mr. al Hawsawi requests the Military Commission require that the Government produce witnesses in the AE 018PP series of motions, which includes the relevant JTF personnel involved with the seizure of privileged legal materials.

AE018W Defense Joint Defense Motion to Amend AE 18U, Privileged Written Communications Order The Defense seeks an order from the Military Commission amending the Privileged Written Communications Order (AE018U), which governs how defense counsel and the accused can communicate in writing.

AE018Y Government Government Emergency Motion for Interim Order and Clarification that the Commission’s Order in AE018U Does Not Create a Means for Non-Privileged Communications to Circumvent the Joint Task Force Mail System The Government seeks an Emergency Motion for an Interim Order following accusations of unauthorized distribution of materials that did not receive sanctioned review by JTF-GTMO.
AE018BB Defense Defense Motion to Compel Paper Discovery in Accordance with Privileged Written Communications Order Mr. bin ‘Atash requests the Military Commission to order the Government to provide a copy of all paper discovery materials releasable to Mr. bin ‘Atash, and for the Privilege Team to deliver that to Mr. bin ‘Atash directly.
AE018KK Defense Defense Motion to Invalidate Non-Legal Mail Restrictions Unrelated to Legitimate Penological Interests The Defense requests that the Military Commission order JTF-GTMO to stop refusing to deliver written materials from counsel to Mr. bin ‘Atash on the ground that such non-legal materials are written in Arabic or are too voluminous. Refusing on that basis requires the defense to translate every page of Arabic material.

AE018MM Defense Defense Motion to Compel Reasonable Privilege Review Team Hours of Operation Mr. bin ‘Atash seeks an order from the Military Commission requiring the Privilege Review Team (which reviews legal and non-legal written materials sent to the accused from defense counsel) maintain reasonable weekend hours for the immediate processing of deliverable materials.

AE018PP Defense Defense Motion for Government to Show Cause For Its Violation of AE018U The Defense requests the Military Judge Order the Government to show cause for its violation of AE 018U and thoroughly review a new breach of attorney-client privilege by JTF-GTMO in February 2015.

4. AE 391: AE 391 Government Government Motion For the Admission of Death Certificates
Into Evidence The Government requests the admission in evidence now, in advance of the as yet unscheduled trial, of the death certificates of the victims listed in the charge sheet.

Also, for Wednesday morning: AE 152LL: Ramzi bin al Shibh can testify on noises/vibrations this Wednesday (AE 152LL)

I made a friend outside our tent after returning from the hearings. We’ve seen lots of iguanas around Guantanamo Bay.

A few hours ago we ate dinner as a group at an Irish Pub here on the base. I spent most of the evening writing reports on the happenings of the day.

By:  Matt Kubal (JD, Indiana University McKinney School of Law); Monitor, Military Commission Observation Project

Posted by G. Edwards

This week I traveled to Ft. Meade, Maryland to observe the pre-trial hearings in the Guantanamo Bay, Cuba criminal case against 5 alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon. The proceedings in the Cuban courtroom were broadcast via  “live stream”  into Ft. Meade’s Post Theater.  The proceedings took place Monday, 22 February 2016.

9/11 lead defendant Khalid Shaik Mohammad, in the Guantanamo Bay courtroom. (Sketch by Janet Hamlin)

Rights of Guantanamo Bay Stakeholders

As an NGO Observer I am charged with ascertaining whether the right to a free trial is being afforded at Guantanamo Bay.

The right to a fair trial is a foundation of a just legal system.  Often, the defendant is presumed to be the most important and perhaps the only stakeholder.  However, the Fair Trial Manual stresses that there are other stakeholders whose rights also need to be considered.    The right to a fair trial is not only to be afforded to the defendant but also to the Prosecution, Victims and Victims’ Families, Witnesses, the Press, the Court, JTF-GTMO Detention Personnel, NGO Observes and Others.

During these hearings, which took place on Monday, 22 February 2016, lawyers argued points of law about pre-trial matters. These arguments, called “motions”, focused on three different topics:

• the release of an un-redacted transcript of a public hearing held on 30 October 2016 (the AE400 Motion, filed by the media and joined by the defense);
• to allow expert testimony to show that the touching of a defendant by female guards forces the defendant to relive the torture inflicted by female guards in the past (the AE254 Motion, filed by the defense)
• to return to defendants laptops the government seized (the AE182 Motion, filed by the defense)

Please note that all public documents released by the Military Commission including the motions filed by the parties and unofficial/unauthorized transcripts can be found on the website of the military commission.

AE400 Motion to Unseal 30 October 2015 Transcript of Public Proceedings.

IU McKinney Observer Matt Kubal posted a bit about the background of this motion.  Carol Rosenberg, a reporter for the Miami Herald, who dedicates much effort to covering Guantanamo Bay developments, has also written about the motion.

In short, on 30 October 2015 a 9/11 case hearing was held at Guantanamo Bay. Present in the courtroom for the hearing were observers (including a representative of Indiana McKinney School of Law), media, and many other persons without security clearances, and all of these people were aware of all that was said during the hearings. Subsequent to the hearing, Military Commission published a redacted transcript of that public hearing, rather than publish the entire transcript.   The Press and Defense argue that the redactions are unconstitutional.  The Prosecution argues that there are no constitutional violations.

This motion is an example of an allegation that the right to a fair trial, which is a right afforded the Press, is being violated.  The motion dealt with the redaction of information from a transcript of a public hearing held 30 October 2015.  The motion was filed by various news outlets.  I don’t expect to see the New Yorker, The New York Times, The Associated Press, Fox News Network, and the Washington Post to be on the same side of an issue, but here these news outlets and a handful of others are collectively known as the “Press Movants”.  The rights implicated in this motion are found in the Manual on pages 81, 127, and 183.

This motion is not only a clear example of the rights of a non-party stakeholder, it also presents examples of some of the reasons for the delay that has plagued the progress of the Commission. To an extent, every issue brought to the Judge in these cases is an issue of first instance, as there are no prior decisions issued by this court regarding many issues.

              Arguments by Press Movants and Defense

The Press Movants, who were represented by non-party counsel Mr. David Schulz, argued that their 1^st amendment right had been violated because they were denied access to public information when the Military Commission published a redacted transcript of a public hearing held on 30 October 2015. Mr. Schulz argued that “there can really be no serious doubt that the First Amendment, the constitutional right of the public to inspect that record applies to these transcripts.” Unofficial/Unauthenticated Transcript-The R.M.C. 803 session called to order at 0902, 22 February 2016. Lines 1-3, pg 10614.

Furthermore, Mr. Schulz argued that, among other things, the government has gone to great lengths to prevent the release of classified information both before the start of any hearings but also during, with the implementation of the 40 second audio delay and redlight system.  However, once the information is released to the public after passing the implemented filters, the removal of such information from the record after the fact is unconstitutional.

Another part of the argument put forward by the Press Movants was that the government actually released two versions of the transcript.  The first had entire pages redacted while the second had significantly less redacted information.  The defense discussed both versions to show that the redactions could not have been narrowly tailored and were unjustified in the first redaction.  Accordingly, the argument continued, it is likely that the redactions in the second version are also not justified.

As stated above, the motion was filed by Press organizations, however it was also joined by the defense.  The Press Movants based their argument on a violation of the first amendment, while the Defense based their argument on a violation of the sixth amendment.  According to the Defense, the sixth amendment guarantees a defendant’s right to a public and open trial. The government can impinge on this right but only if it has an overwhelming interest in keeping the information from the public.  The Defense argues that the government is not able to meet that standard.  (Mr. al Baluchi’s Motion to Join Press Movants’ Motion to Unseal 30 October 2015 Transcript of Public Proceedings, pg 2) The arguments by the Defense in this instance were made by Mr. Perry.  Mr. Perry mentioned that the Defendants’ rights as enumerated in the sixth amendment were violated not only because of the limitation on the right to a public and open trial but also because the Defense relies on the Commissions’ transcripts “every day.”  I do not believe this was explicitly stated, but in my mind, the government’s imposition of limitations to the Defense access to documents they require to provide effective assistance to their client, is a violation of the Defendant’s Sixth Amendment Right to Counsel.

Arguments by Prosecution

The Prosecution provided four arguments against the release of the previously redacted information.

1. Prosecution argued that the unofficial/unauthorized transcript is not a Judicial Document, so the redaction after the fact is fully authorized.
2. Prosecution argued that the redacted information was redacted because it is classified. If someone determined that this information is classified, they did so in the interests of national security.  Furthermore, the person designating certain formation classified has a broader view of the effect of the information on national security.  Accordingly, the prosecution gave little weight to the argument that they may have waived their right to protecting any classified information by not raising the issue during the 30 October 2016 hearing.
3. Prosecution also argued that because the second release contained less information designated as classified, the redactions were indeed narrowly tailored.

Judge

The Judge asked the prosecution what they think the best way forward is, which leads me to believe that he will not order the government to release the redacted information.

Logistical/Administrative Hurdles related to the redacted transcript motion

Before the start of the substantive evidentiary hearings, the parties presented arguments on whether Mr. Perry, one of the defendants’ attorneys, should be allowed to present arguments before the Judge.  Mr. Perry was a government worker for over 12 years and has a secret security clearance, but does not have the proper clearance to argue before the Judge in Guantanamo Bay on behalf of the defendants.  For one reason or another paper work was not processed and clearance was not obtained before the hearing.  Mr. Perry and his team applied for the proper clearance in June 2015.  The judge ultimately allowed Mr. Perry to argue but only on this particular motion.  Mr. Perry was only allowed into the court room to present his arguments and had to watch the rest of the proceedings from the viewing room which as a 40 second delay.  While Mr. Perry was able to argue before the court in this instance, obtaining required security clearance causes delays in the resolution of these trials.

Another example of a reason for delay in the resolution of these trials can be found in the substantive discussion of the AE400 Motion when the Judge asked if he even had the authority to question the decision by the executive branch to make certain information classified.  The Judge pointed out that there is a high standard to mark information classified, and he is not sure if he is in the best position or even has the authority to question that determination.  One reason for the ongoing pre trial hearings is to determine exactly what rights should be afforded to stakeholders’, including the rights/authorities of the Court and its Judge. I would like to note that I do not show this example to critique the court or the progress made, but merely to show that a judicial system without precedent does not function as efficiently or timely as one with decades of precedence and established procedures.

Mr. Nevin, counsel for Khalid Sheikh Mohammed, brought up an incident he believes occurred in 2012.  Mr. Nevin recounted that in 2012, he was speaking before the Judge when the red light went off.  The red light is an indication that classified information is being released and if the light goes off the hearings are stopped.  Mr. Nevin stated that when the red light went off, he was not discussing classified information.  Neither the Judge nor courtroom staff activated the light, meaning that someone outside of the courtroom must have activated the red light.  It was discovered, according to Mr. Nevin, that the CIA, viewing the hearing from another location had the power to, and did, activate the light. The Military Commission then disabled the ability of out of courtroom CIA viewers to active the light and restrict the information that leaves the court.  Mr. Nevin reminded the Judge that the Judge was not happy about the possibility of someone outside the courtroom restricting the release of information, implying that the Judge does have the authority to determine what information is to remain public.

Other Motions 

AE254YYY Motion

This hearing was based on a motion to reconsider a previous Order denying a request by Mr. Nevin, learned counsel for Khalid Sheikh Mohammed, to bring in an expert witness to testify as to the religious and cultural norms behind the pain Mr. Mohammed experiences when touched by female guards..  While, the focus of the Defense was that the Judge used a wrong standard in making his earlier ruling, I was more intrigued by the discussion of the use of an expert witness.   The Defense would like to bring an expert witness to testify that female guards’ touching of the Defendants previously tortured, and specifically sexually abused by female guards in Guantanamo during torture, forces the Defendants to re-live the experience.

AE182 Motion-Government Return of Laptops to Defendants

Defendants had access to laptops between 2008 and 2010.  They did not have counsel during that period, and the government provided access to laptops because the use of laptops would provide a better opportunity for Defendants to defend themselves.  The government seized the laptops in 2010 after Defendants received legal representation.  The defense stated that the Judge has issued three previous Orders requiring the return of the laptops to the Defendants and again asked the Judge to enforce his Orders.   The Prosecution argued that they released the laptops to defense counsel, and defense counsel is allowed to give the laptops back to Defendants as long as they follow certain security protocol.  Defense counsel summarized the prosecution’s strategy in the following way:

“The judge intends for you to get back the computers you had in 2008-2010, but before we do that we are going to break them, and the reason — the way we’re going to break them is in compliance with security protocols that have just been miraculously developed by our good friends at Joint Task Force Guantanamo Joint Detention Facility.” Unofficial/Unauthenticated Transcript-The R.M.C. 803 session called to order at 1331, 22 February 2016. Lines 11-17, pg 10794.

This hearing was the only one where I sensed any hostility or aggression between counsel for both parties.  Counsel for Defense was combative and attacked the motive of the Prosecution.  The Judge expressed confusion with respect to some of the underlying facts and it was my impression that both sides were trying to hide the ball.  This motion shows that not only are there logistical and administrative obstacles to the progress of the hearings but that, like in any other court, strategy and the adversarial structure also play a role in the delay.

Personal Observation and Experience

                I drove through the inspection entrance at Ft. Meade around 7:15 am.  When asked why I was coming I told the inspectors I was here to observe the 9/11 hearings.  They seemed to have no idea what I was talking about and asked a few additional questions.  Full disclosure, I became a bit nervous after they started asking additional questions.  I started to think it was some sort of test/screening process.  I now think they genuinely did not know what I was talking about.  Ft. Meade is a huge base and Post Theater, where the live stream is shown, is a very small part of it.  While the 9/11 hearings are of extreme significance to some, it is perfectly reasonable that others would not be aware of the place, time, and substance of related pre-trial evidentiary hearings occurring in Cuba and being “live” streamed to a small theater in Maryland.  I notified Professor Edwards of my arrival and took some photos of the theater and a nearby park.

I was inclined to drive around the base but wanted to make sure I was able to get into the theater when it opened.  One of the day’s hearings dealt with a motion filed by the press.  I was concerned that the theater will be filled with media types.  Turns out my fears were not justified as no one arrived until right around 8:30 and at a maximum there were about 16 people at any given time. I talked to an employee of the theater after the hearing who mistook me for a law professor.  During the conversation I learned that there are usually no more than 20 people in the theater and that Post Theater is reserved for legal professionals and victims/victims’ families.  The media observes the hearings from a different location in part, I imagine, to avoid contact between members of the media and the victims/victims’ families.  I asked if I could take pictures of the theater when court was not in session; the answer was a resounding “no”.

The drive home was an experience in and of itself.  I finished listening to the Guantanamo Diary, a book written by a current GITMO detainee.  I took a break to listen to the Pentagon Press Briefing on the closure of Guantanamo Bay as I drove past the site the Flight 93 crash.

Leontiy Korolev, JD 2012, Observer

Many of the ideas above are based on my memory and understanding of the 22 February 2016 Hearings and related motions and transcripts. The foregoing is my opinion in my own personal capacity, and my blog posts and other comments are my own and do not necessarily reflect those of the Indiana University McKinney School of Law or anyone else, for that matter.

2/21/2016 Day 2: Breakfast and a Tour

The Gold Hill Galley is a great deal at ~$3 for all-you-can-eat breakfast

Thank you to Professor George Edwards who had the wherewithal to leave an electric blanket at the NGO lounge for observers to use. The tents are kept very cold and I think I was the only person in my tent who slept comfortably last night. This morning most of us left for breakfast at 7:30 AM. Our driver Carl and our escort Mark told us last night that the Gold Hill Galley is by far the best breakfast option on the island and they were not kidding. I had a big plate of bacon, biscuits and gravy, a few hard boiled eggs and fresh fruit (enough that I skipped lunch today). At about $3 for all-you-can-eat, it’s a very good deal as well.

After breakfast our driver Carl took us on a tour of the island. Around the Navy Exchange we saw the less-exciting familiar arches of a McDonald’s and later on a Pizza Hut. A Taco Bell and a KFC were formerly on the base as well, but both are no longer open. We passed a variety of recreation facilities including the Lateral Hazard golf course (which is where I assume that MCOP observer Paul Schilling golfed during his visit last week), a paintball range,  a bowling alley, a 24 hour fitness facility, an outdoor movie theater showing first-run movies (schedule available here; we made tentative plans to see “The Big Short” on Wednesday night), an Irish bar, a Jamaican restaurant and a marina where we were told we could rent kayaks and anyone with a captain’s license can rent boats to take out on the bay.

Matt Kubal in front of Camp X-Ray, the detainment facility where detainees were held when they first arrived at GITMO in 2002

We also had the unique opportunity to see two pieces of United States history from afar: Camp X-Ray and a facility where the some of the detainees are currently held. Camp X-Ray is the temporary detainment facility that inspired the independent drama film of the same name and a full-scale replica built in Manchester, England. Camp X-Ray is where the first detainees transferred to Guantanamo Bay in 2002 were first held. It was originally built in 1990 to temporarily house some Cuban asylum seekers who had crossed the minefield surrounding the Guantanamo Bay facility, but were denied asylum for one reason or another. Now the facility looks spartan and overgrown. Compared to the current detainment facility, Camp X-ray offered a very different experience for the prisoners and guards as the facility’s open design meant that detainees and guards could communicate freely whereas the current facility is closer in design to a maximum security facility where detainees are much more isolated from guards and their fellow detainees.

While we were able to take photos of Camp X-Ray and see it from a distance of roughly 200 yards, we were very far away from the current detainment facility on top of a ridge above the base. We were absolutely prohibited from taking photos. Of the 91 detainees still housed at Guantanamo Bay, some of them are accused of horrific crimes while many others have already been approved for release. As of 2010, 48 detainees held in Guantanamo Bay were designated for indefinite detention. As I looked at the facility from afar, I felt a mixture of sympathy for those held who are already cleared for release and for the guards who are tasked with the duty of guarding and maintaining the facility (a job I do not envy) and frustration that this justice system we have created to determine guilt and prosecute those accused of some of the most notorious and horrific crimes in modern history moves so slowly. I only had a moment to briefly ponder the mixed feelings I felt looking at the facility from afar before it was time for us to return to our camp and our nearby NGO lounge.

Matt Kubal in the NGO lounge reading the Guantanamo Bay Fair Trial Manual

I am typing this post from a desk in the NGO lounge. The NGO lounge is a couple of rooms in Camp Justice that are connected to the hangar where the media briefings are held. We can view press conferences via CCTV on the television here and some of the NGOs store supplies for observers to use during their time here (including the electric blanket that allowed me to sleep last night). The lounge also has desks, phones, a small refrigerator and we can access the internet here.

It is great to have a permanent space to store supplies, prepare for hearings and work to ensure that, “what happens at Guantanamo Bay, should not stay at Guantanamo Bay” (p. 29, Guantanamo Bay Fair Trial Manual, DRAFT , 20 Jan 2016, 4:15 am). Offering the NGO lounge is a good example of the U.S. government’s commitment to encourage independent observers to attend and monitor the Military Commission hearings. The Guantanamo Bay Fair Trial Manual provides an excellent description as to why the U.S. Government invites observers:

The U.S. government (the Pentagon / Department of Defense) invites NGO Observers to monitor U.S. Military Commission hearings to demonstrate to the U.S. and international community that the rules under which the Commissions operate are legal under U.S. law and international law,  and that these rules are being applied in compliance with U.S. and international law. The Pentagon seeks to have NGOs examine whether the rights of all Military Commission stakeholders are being fully afforded to them, under U.S. and international law, and to confirm that these rights are being so fully afforded. (p. 29, Guantanamo Bay Fair Trial Manual, DRAFT , 20 Jan 2016, 4:15 am)

Since I arrived yesterday, I have been impressed by the resources provided to us and the access we have been provided to prosecution and defense counsel.

Day 2: A Briefing and Q&A with General Martins

Matt Kubal after the briefing with General Mark S. Martins, the Chief Prosecutor of the Military Commissions overseeing the 9/11 case

This afternoon we had the opportunity to meet with General Martins and ask him questions regarding his personal history, the 9/11 case and the Military Commissions more generally. General Mark S. Martins is the Chief Prosecutor of the Military Commissions overseeing the 9/11 case. I was impressed with the ease in which General Martins’ discussed the various motions and answered our questions about the 9/11 case and the Military Commissions. Afterwards, several of the observers commented that they were similarly impressed and understand why he was selected as Chief Prosecutor. As Paul Schilling wrote last week, General Martins, “sounds like a prosecutor.” I very much appreciate General Martins taking the time to speak with us today and staying afterwards to take photos with us.

I hope to create a separate post in the next few days with a summary of some of the main themes in the comments made by the defense yesterday at the barbecue and by General Martins and the prosecution this afternoon. I will also summarize the hearing in the 9/11 case held on February 22, 2016.

9/11 lead defendant Khalid Shaik Mohammad, in the Guantanamo Bay courtroom. (Sketch by Janet Hamlin)

A schedule conflict prevented me from traveling to Guantanamo Bay last week, but I will be in Ft. Meade on Monday to observe one day of hearings in the 9/11: Khalid Shaikh Mohammad et al. case. These are truly historic proceedings from so many perspectives including legal, cultural, and political, and I am glad to have the opportunity to Observe.  Paul Schilling reported directly from Guantanamo last week, and Matt Kubal will be doing the same this week.  Their posts have contributed, and I have no doubt will contribute to the mission of the Military Commission Observation Project and I hope mine will do the same.

Travel:

I left Indianapolis around 2pm, it was sunny and in the 60s.  I saw people in shorts and t shirts as I drove through Fountain Square and onto 70 East, where I would spend the next 9 or so hours.  Professor Lemmer referenced the “Guantanamo Diary” in one of her posts. It is a book written by Mohamedou Ould Slahi, a current detainee at Guantanamo Bay. I was able to listen to a few hours of it on the drive out east.  I won’t turn this into a book review, but I highly recommend it.   The book certainly helped pass the time, and the perspective it provides, I imagine, is unlike any other.  The drive gave me a lot of time to reflect and the substance of the book certainly provided plenty of food for thought. I arrived at my parents’ house around 11:30 pm, it was pitch black and parts of the ground were still covered in snow.

Fountain Square, Indianapolis at 2 pm. Sunny and in the 60s

Leaving the city.

About 9 hours on 70 East took me past Columbus, Pittsburgh as well as through Indiana, Ohio, West Virginia and Pennsylvania

Still plenty of snow on the ground in Hanover, PA

Getting ready for tomorrow’s hearing.

I am staying at my parents’ house who live an hour and a half from Ft. Meade.  I plan on getting up in the morning in time to arrive at Ft. Meade by 8:00 am.  In the meantime I’ve been reviewing the manual, recent transcripts, and some of the ae400 Motion documents.  One of the hearings tomorrow is expected to deal with the ae400 Motion.  The ae400 Motion was filed by members of the media stating that certain information was improperly withheld from the public.  Mr. Kubal should be posting shortly with some background on the ae400 Motion, and I hope to provide a substantive overview of the hearing on the ae400 mid-week.