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 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).
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!
Professor of Law
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