Challenge coin

Professor Edwards (right) with one of his Indiana law students (Ms. Sheila Willard) at Guantanamo Bay, Cuba. (file photo)

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.

Hadi al Iraqi / Nashwan al Tamir, the alleged 2nd highest al Qaeda member in U.S. custody. Professor Edwards is scheduled to attend his hearings at Guantanamo from 19 – 29 August 2019.

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 to Guantanamo.

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).

Guantanamo Non-Governmental Organization (NGO) Observer Challenge Coin — with our Stated Mission —
To Attend, Monitor, Be Seen, Analyze, Critique & Report

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.

We disseminate information through our blog at www.GitmoObserver.com.

Hadi / Nashwan Background

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.

For at 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.

This 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.

His trial 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, is unpredictable.

We will need to wait to see how matters unfold this week.

Stay tuned to www.GitmoObserver.com for updates!

George Edwards

Professor of Law

Direct, Military Commission Observations Project (MCO)

Program in International Human Rights Law

Indiana University McKinney School of Law

www.GitmoObserver.com

www.GuantanamoBayReader.com

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Check your eligibility to travel to Guantanamo Bay to monitor hearings through Indiana’s Guantanamo Project. Click here.

Non-Governmental Organizations (NGOs) who travel to Guantanamo Bay, Cuba, to monitor U.S. Military Commission hearings now have a military challenge coin!

The coin reflects the NGO mission, which focuses on transparency at Guantanamo war crimes proceedings.

The Pentagon permits a limited number of NGO representatives to travel to Guantanamo to monitor proceedings. NGOs are the eyes and ears to the outside world on what happens at Guantanamo, consistent with the right to a public trial for all categories of Guantanamo stakeholders. Stakeholders include defendants, prosecution, victims and victims’ families (VFMs), guards, witnesses, media, and others – all who have rights and interests.

Other Guantanamo groups have challenge coins, including the defense, prosecution, the Office of Military Commissions, the Commissions Liaison Group, and different Guantanamo camps and other sub-groups of deployed personnel.

All the Guantanamo coins honor aspects of the military and civilian personnel involved with Guantanamo, and their contributions.

Other side of the Guantanamo Bay NGO Challenge Coin

A brief history of the challenge coin

A challenge coin is a coin or medallion typically created by an organization to demonstrate membership or participation, to honor service, or for commemorative purposes. Challenge coins are steeped in military and public service tradition, and are often exchanged or distributed during visits, given as an award, exchanged between friends as gifts, or exchanged as collector’s items.

About the NGO Guantanamo coin

The new NGO Guantanamo coin is round, is bronze with white background, and is 3 inches in diameter, much larger than a silver dollar.

On one side, the coin reads “U.S. Military Commissions” (top) and “Guantanamo Bay, Cuba” (bottom). This side contains a U.S. flag in red, white, and blue, Lady Justice in bronze, and a map of Cuba with a red star placed on Guantanamo Bay.

Lady Justice holds the Scales of Justice in one hand and a sword in the other. A blindfold over her eyes represents that justice should be applied impartially.

The opposite side of the coin lists the 6-part mission of Guantanamo NGOs – to attend, monitor, be seen, analyze, critique, and report on the Guantanamo hearings.

Most aspects of the mission statement are obvious – transparency as fundamental to the right to a fair trial obviously requires monitors (or observers) to be present and to observe, and to analyze what they observe, and critique (positive / negative) and report.

The reasoning behind the “be seen” portion of the NGO mission may not be so obvious, but it is very important. The Military Commission Act, the U.S. Constitution, international law, and regulations and rules related to the Guantanamo proceedings all call for a public trial. The defendants sitting in the courtroom should be able to turn around and look into the observation galley and see a slice of the public. The defense lawyers and prosecution should be able to see a slice of the public, and the judges and jury and victims and anyone else should be able to see the NGOs, who represent the public. The presence of the NGOs, and their visibility – their ability to be seen – goes to the issue of not having secret trials (with secret trials being prohibited under U.S. and international law).

The visibility of NGOs might give comfort to some trial participants who might feel heartened that if there are any improprieties, NGOs might bring such improprieties to the attention of the outside world. The visibility of some NGOs might cause other actors to be extra diligent in doing their jobs, fearing that NGOs will report improper behavior.

The background on this side is also white, with a design of the Scales of Justice in the middle. The edge surrounding the coin reads, “At Guantanamo Bay justice must not only be done, but must be seen to be done” (top), and “Non-Governmental Organizations” (bottom).

Availability of the Guantanamo Bay NGO Coin

A limited number of Guantanamo Bay NGOI coins were produced, and are available for $15. If you are interested in acquiring a coin, please contact The Gitmo Observer at gtmo@indiana.edu or gitmo@indiana.edu. Coins can be shipped to you.

Both sides of the Guantanamo Bay NGO Challenge Coin

End Note: This NGO Challenge Coin was designed by the Military Commission Observation Project of Indiana University McKinney School of Law, directed by Professor George Edwards, with input by and consultations with numerous individuals, including many involved with other Guantanamo NGOs and other Guantanamo stakeholder groups. No coalition or union of Guantanamo NGOs exists, and there was no vote among NGOs as to the design or production of the coin. Thus the coin is not an “official” coin of the NGOs, but one that any NGO or NGO representative might use if they wish, particularly if they believe that the coin reflects their mission.