Research Fellows meet with House Armed Services Committee

On March 23, Professor Mark Denbeaux and Research Fellows from the Seton Hall University School of Law Center for Policy & Research had the unique opportunity to meet with staff members of the Oversight and Investigations Subcommittee of the House Armed Services Committee.

The Subcommittee is conducting a retrospective, in-depth study of Guantánamo detainee transfers and outcomes, with a view toward issuing a report later this year. The staff of the Committee invited Professor Denbeaux and the Research Fellows in light of the Center’s work on detainee release, transfer, and recidivism, as well as its involvement in detainee representation.

In anticipation of the meeting with the Center, the staff members sent Professor Denbeaux an overview of their objectives:

We plan to assess the government’s past and present policies, procedures, and practices for determining detainees’ eligibility for transfer or release, including how security risks and country assurances were determined. We also plan to examine how transfers and releases were implemented and determine, to the extent possible, what happened to detainees after they left Guantanamo, including any re-engagement in terrorist-related activities.We hope to be able to identify lessons learned from past detainee transfers and make recommendations for improving transfers in the future.

At the meeting the students presented the Committee with information regarding its profile of detainees, a profile of detainees who have been released, the evidentiary basis for their release, and thoughts about the procedure for determining whether to release them.

In accordance with the Committee’s timeline, the Center will concentrate on three projects: an updated profile of all released detainees, including the allegations against each detainee; a survey of all released detainees to determine their reintegration into civilian life; and a study of allegations made in habeas cases.

The habeas project reviews allegations, findings of fact and legal holdings at the Combatant Status Review Tribunal, District Court and Court of Appeals levels.

The project then compares the government’s allegations at each level, specifically contrasting the allegations against those released with those still detained in an attempt to determine what evidence is considered sufficient to support further detention or release.

Learn more about the Guantánamo Reports.

Learn more about the Center for Policy and Research.


Rumsfeld Knew: Followup – Washington Post Picks Up Story

Sean Camoni

The Washington Post has a story about the Seton Hall Report here.

Tellingly, while Rumsfeld quibbles about the exact words he used or did not use, he does not deny the substance of the report: GTMO was populated with low-value detainees and the government knew it. Despite that knowledge, GTMO detainees were continually subjected to harsh interrogations in indefinite detention with obstructed or no due process. The government continued and still continues to claim the men in GTMO are dangerous and likely to be repeat offenders, yet the majority of detainees were never even accused of committing an act of violence before incarceration at GTMO, and the government has never substantiated its recidivism claims. The Rumsfeld Memo confirms that the Bush Administration knew at least as early as 2003 that the men imprisoned in GTMO were not the so-called worst of the worst, yet continued to make that assertion in public. Secretary Rumsfeld did not deny any of that to the Post.

Rumsfeld Knew: Center Discovers Memo That Contradicts “Worst of the Worst”

Read the Report here.

Rumsfeld Confesses to Joint Chiefs of Staff that Guantanamo is Filled with “Low Level” Detainees in Recently Declassified Memo; Finding Calls into Further Question “Recidivism” Representations

Seton Hall University School of Law’s Center for Policy & Research has issued a report: Rumsfeld Knew: DoD’s “Worst of the Worst” and Recidivism Claims Refuted by Recently Declassified Memo. The Seton Hall Center for Policy and Research has discovered a recently declassified memo written by Defense Secretary Rumsfeld to the Joint Chiefs of Staff. Rumsfeld’s explicitly contradicts his continued public statements that Guantanamo Bay was reserved for the “worst of the worst.”

Rumsfeld Knew suggests that the misrepresentations of the dangerousness of those sent to Guantanamo is of a piece with the government’s continuing public characterization of those who had been detained at Guantanamo as having “returned to the battlefield” or “reengaged” against the United States. It demonstrates that the Department of Defense’s recent Summary, the latest in a series of statements on this subject, is no better based in fact than earlier efforts to mislead the American people on the dangerousness of those detained in Guantanamo.

Throughout, the U.S. Government has maintained publicly that detainees incarcerated at Guantanamo Bay are dangerous, “high-value detainees,” the “worst of the worst.” The Government has also claimed that upon release from GTMO, many of these detainees have “reengaged” in their dangerous activities. Seton Hall Law discovered a recently declassified Memorandum from Secretary of Defense Donald Rumsfeld to the Chairman of the Joint Chiefs of Staff from April 2003. The Memorandum undermines both of these claims, revealing that no later than that date, Secretary Rumsfeld knew that GTMO was “populated. . . with low-level enemy combatants.” Not only does this contradict Government assertions that the prison at GTMO holds the worst of the worst, but it also calls into question the Government’s assertions that the released detainees are dangerous men who have and likely will reengage.

Sean Camoni, a Fellow at the Seton Hall Law School Center for Policy and Research and a co-author of the report said: “Bob Woodward has said that Donald Rumsfeld’s memoir is ‘a book filled with evasion and deception.’ It now appears that the same thing is true of Guantanamo and this time the proof is in Secretary Rumsfeld’s own words.”

Sparked by the revelation that the Government knew at least as early as spring of 2003 that GTMO was populated with low-level detainees, the Center for Policy & Research reexamined all government claims of detainee recidivism. This Report is consistent with the Center’s past findings on alleged recidivism –that the Government has not supported its claims, claims that rest on even weaker ground now that it is clear that the men released from GTMO were never the worst of the worst in the first place.

From GTMO: CP&R Military Commission Observation, Day 4

Kelli Stout, Research Fellow at the Center for Policy & Research, is blogging from Guantanamo Bay, Cuba this week as an NGO observer.

Day four and the commission got weirder.  Today, the courtroom transformed into a Stepford Wives movie script, only adapted to a trial setting.  Every procedural rule was followed.  The judge was evenhanded and polite.  Both sides were able to present their cases.  But there were no objections or cross-examination.  The adversarial character was completely absent and in its place, two tables of attorneys going through (some of) the motions.

We have to remember that this sentencing hearing commenced because of a plea agreement and a short stipulation of facts.  We observers in the glass box are not privy to the complete agreement, which could include agreements to stipulate testimony, back off from rebuttals, etc. But that possibility doesn’t alter the strange appearance of the proceedings today.

The prosecution began by reading to the panel members the stipulation of facts, explaining Noor’s travel to Afghanistan, training at Khalden training camp, and subsequent stay in a safe house.  The prosecution read from terrorists’ diaries, showed a video of Abu Zubaydah, and showed pictures of wires and bomb-making plans found at the safe house where Noor resided.  But then, instead of calling witnesses live, the prosecution carefully read through pages and pages of stipulated testimony of the witnesses it would have called.  The defense, including Noor,  had agreed that the testimony in those documents would be the facts the witnesses would establish had they been present.  We heard no live witnesses, no cross-examination, and even more strangely, no objections.

And that’s not to say the prosecution’s case was without obvious holes.  The prosecution focused on the lives of other well-publicized, alleged terrorists who happened to train at Khalden and those men’s hatred for America. It never offered even stipulated testimony that Noor himself detonated any bombs, took up any arms, or even hated America (although it could be inferred that he knew the types of men he was training with).  At one point, the prosecution read stipulated testimony describing how a man who had trained at Khalden brutally tested poison on dogs.  Despite the clearly prejudicial nature of this evidence, the defense remained silent, never addressing it.

The defense, however, played its own case well.  Taking advantage of his right to make an unsworn statement without cross-examination, the attorneys read his unsworn statement describing his desire to go back to Sudan and live in peace as well as the suffering he has been through during his time in U.S. detention.  It also offered declarations from his tribal leader and a local NGO, who were ready to help Noor reintegrate into society.  Two of the government defense attorneys even traveled to Sudan to visit Noor’s family.  But again, all the evidence was written and read to the jury.  The prosecution, like the defense, made no objections, remaining silent.

Even in its “rebuttal,” the prosecution only made glancing reference to other stipulated testimony, stating that in November 2002, only eight months into his detention, Noor had stated the Americans had treated him better than he expected.  The defense presented no evidence in surrebuttal, despite previously admitted evidence that would establish poor treatment during his later years in confinement.

And with that, the show and dance ended for the day, just in time for Noor’s afternoon prayer.  Today was definitely odd, but perhaps to be expected when scripted by a secret pre-trial agreement, the outcome of which will not likely be changed by a real jury or a panel of military members.  They just have to go through the motions, bang the gavel down, and we can get off this island.

So, why again, did we come here?  Today is day four.  Morale among the observers (and probably other participants) is low, people are tired, we want to go home.  Dozens of people have been away from their families, their homes, their lives, to hold this military commission.  The government has put them in tents and small trailers and subjected them to military escorts at all times.  The observers take ninety minutes lunches — because it takes that long to get everyone out back through security, gathered by their military escorts, bused up to the dining hall, and back.  We talk about the financial costs of these commissions, but we never talk about the human aspect—how much it takes out of all of the people who are here to participate and watch the commissions, how much we have to give up to be in Guantanamo Bay. And to what end?

From GTMO: CP&R Military Commission Observation, Day 3

Kelli Stout, Research Fellow at the Center for Policy & Research, is blogging from Guantanamo Bay, Cuba this week as an NGO observer.

Our military escorts are always very positive and smiling, and when we want them to drive us around or take us on a run (yes, when we want to go for a run, the military escort has to run with us), they say, “Of course, we are here for you!” So, aside from the fact that five us of have to share one escort, it’s okay. On our run yesterday, we started hearing a high-pitched screeching, and sure enough, out from the bushes came several of the legendary GTMO banana rats.

There is a flight coming back Saturday, but if they need another day to finish the hearing, they are scrubbing the Saturday flight, holding court Saturday, and flying out Monday. The good news is if that happens I will get a sanitized tour of the camp on Sunday. The bad news is I probably will get eaten by a banana rat before then.

Back through the barbed wire fences, Noor’s hearing continued today into the sentencing stage. It stills feels odd to walk into a high-security courtroom – it’s so different from the courtrooms in America. While in other courtrooms, the judge just may yell if your cell phone rings during court, in this courtroom, a cell phone in your pocket, ringing or not, will set off an alarm system and put the courtroom on lockdown.

Yesterday, Noor pled guilty to charges of providing material support to terrorism and conspiracy, but he still is permitted a sentencing hearing. A panel of commissioned officers on active duty will make a decision as to Noor’s sentencing. Because the plea agreement sets out an agreed-upon sentence, the panel’s decision will only take effect if it come up with a lesser sentence than that in the plea agreement. Thus the hearing, in some sense, is really meaningless. The decision need not be unanimous. It requires three quarters of the members of the panel to agree to a a sentence of anything more than ten years. It only requires two thirds of the members to agree to any sentence below ten years.

As part of the plea agreement, Noor waived away many of his rights, including any claim to confinement credit, his right to appeal his conviction, sentence, or detention. Noor, however, can testify under oath and be subject to cross-examination or questions by the panel members or judge. Noor can also choose to remain silent, in which case the panel will be instructed not to infer anything “adverse” from his silence. Or, Noor can make an unsworn statement, say whatever he wants, and not be subject to cross-examination or questioning by members or the judge. However, if he chooses to do this, the prosecution may present evidence to rebut anything Noor says during his unsworn statement, effectively cross-examining him.

However unusual some of the rules and terms are, the voir dire procedures felt like a federal trial—outside of the fact that the lead prosecutor swore in the jury. The judge, prosecution, and defense each took turns asking the panel questions as a group. But when the entire panel is made up of commissioned officers, it is hard to imagine the prosecution would challenge any of the members—and they didn’t. Unlike a court martial proceeding, the commissioned officers are not judging another soldier from another country but a foreign citizen. But, of course, this is not a court martial-=; it is a military commission! I am struggling with this. In fact, the government has gone to great lengths to call Noor anything but a soldier— but rather enemy belligerent, enemy combatant, terrorist. Out of fifteen panel members, the defense challenged six of them for cause, arguing actual and/or implied bias, because of their experiences serving our country against the enemy fighters of whom the government alleges Noor is one. The judgeunderstood the issues of bias—and the need only for five jurors under the military commission rules—and granted five of the challenges.

But while this sentencing hearing seems meaningless, it gives the public—or at least the public who is permitted to watch—a chance to see what types of evidence and arguments would have come out at trial. The opening statements tried to play up or play down Noor’s connections to al Qaeda—one side portraying him as a terrorist trainer and leader, the other side portraying him as a low-level worker, never wanting to be involved in al Qaeda. But for such an important case, the prosecution’s opening statements were short. The gist: “Terrorists are not born; they are made. And Noor has made hundreds of them.”

So, tomorrow, we will proceed, trying to answer the question: how bad of a person was Noor? It seems strange that the next steps in this process will, in a sense, be a moral battle. Was he really just searching for religious meaning in his life, or was he an evil terrorist trainer and leader? Did he really try to get out of Afghanistan and back to Sudan, or was he actually hiding out looking for new ways to further terrorist goals? But how well can we really answer these questions? And at the end of the day, and considering the circumstances of this hearing, does it really matter?

From GTMO: CP&R Military Commission Observation, Day 2

Kelli Stout, Research Fellow at the Center for Policy & Research, is blogging from Guantanamo Bay, Cuba this week as an NGO observer.

After eight years of confinement, Noor Uthman Mohamed got his hearing. But instead of insisting of his innocence as he had for eight years, Noor pled guilty to providing material support to terrorism and conspiracy to provide material support to terrorism. The sentencing hearing will begin Wednesday.

The courtroom where the military commissions are held is close to Camp Justice, where the NGO representatives and the media stay. While the courtroom itself resembles any other civilian courtroom, the Department of Defense seal on the outside of the building certainly changes the external surroundings. It is no ordinary courthouse. The outside of the building is highly guarded, surrounded by high fences and barbed wire. I had to go through two metal detectors just to get to the building, and even then, the guards refused to let me go inside the courtroom because I was not on the list of observers with security clearance. I had to wait outside for half an hour while our military escort and other military personnel made phone calls and obtained additional documentation in regard to my security clearance so that I could go inside the courtroom.

When I arrived in the glass box inside the courtroom, the defense was already seated—four attorneys, a translator, and Noor, dressed in his white detention garment and a blue jacket. The eight members of the prosecution team filed in shortly thereafter. Military personnel with their name tags covered sat along the side wall closest to Noor.

Myself, the other NGO representatives and the media were in a partitioned-off observing room made of bulletproof and soundproof glass. The observing room is at the back of the courtroom about twenty yards from where the judge Navy Captain Modzelewski was sitting. There were several TVs in front of us to display a live but slightly delayed feed of the hearing. The video and the audio was about a minute delayed, making it useless to observe the actual hearing we could see through the glass. We are also subject to judge’s orders with regard to any information that we do hear—she can restrict what we can report back to the public.

Noor was given headphones so that he could hear the translator clearly. Between the last hearing and today, there were five 802 conferences addressing pre trial issuesbetween the judge, defense, and prosecution, but it is unclear if Noor knew these were occurring or knew the substance of the conversations. At the beginning of trial, Noor was sworn in by the lead prosecutor on the case. He sat slightly slouched in his chair, seemingly almost defeated . But in many ways, he already had been defeated. The options for Noor were slim: take a plea or go through with the unfair military commission trial, which could take years and result in life imprisonment. After eight years of detention at GTMO, he had no choice but to take a plea. He has lost out on an opportunity for a trial in a military commission and never given the opportunity for a trial in federal court. One member of the media commented on the lack of emotion in Noor’s voice when he answered the judge’s questions. We all agreed it wasn’t apathy in his voice that we heard, but defeat .

The hearing itself was incredibly long for a plea. Navy Captain Modzelewski went to great lengths to ensure Noor’s plea was voluntary, reading him the definitions of certain terms like “conspiracy,” explaining each one of the elements of the charges one by one, and asking him each time if he understood. It was a lot of due process for a situation that due process could no longer remedy. It was the right thing to do, although it also could have been to preclude any chance of appellate review. The Judge explained to Noor the rights he was giving up by taking the plea, including the right to self-incrimination, right to trial by the facts by a military commission, the right to confront the witnesses against him and call witnesses. In addition, the plea arrangement dictates that he must give up any collateral attacks pending, his habeas corpus petition in federal court, and his rights to challenge the conditions of his confinement. It is this last right that Noor gave up that is most concerning, considering what the world knows about the conditions and treatment of detainees at Guantanamo.

What I find interesting about the plea are the ethical issues that confine the attorneys in the situation. Noor forgoes challenges to the underlying issues of military commissions—challenges that could get his case dismissed and help set down precedent for future cases. For example, he can no longer argue that material support to terrorism and conspiracy are war crimes recognized under the MCA of 2009, and he cannot fight the unfair procedures of the military commissions. Considering the fundamental problems with military commissions, the plea may have ultimately been in Noor’s best interest. However, the underlying issues with military commissions will never be solved if the best, and seemingly only, option available to detainees is to plead guilty.

The government has prosecuted six cases to date in the military commissions—four resulting in guilty pleas and two trials resulting in convictions. The government has not used the military commissions to prosecute the “high-value detainees,” opting instead to try five of them in federal court. Federal court affords them many more protections than a military commission. It is ironic that the Secretary of Defense and the Attorney General—the officials who decide which detainees get prosecuted and where— refuse to prosecute those detainees deemed not “high-value” in federal courts, where they are not subject to the same rules of evidence.

At the end of the commission on Tuesday during the press conference, a reporter asked Captain Murphy why it was so important that the government secured this plea confidentially. He responded: “Every case is important. Every case is part of an overall strategic plan.” What that strategic plan is, is unclear. Out of the approximately 100 detainees left at gtmo, the military commissions have prosecuted only six detainees, leaving the others to sit in Guantanamo and wait for charges or, perhaps, for release. Currently, the prosecutors are only considering prosecuting three other cases. While the number of detainees that remain at the camp are slowly decreasing, the problems surrounding Guantanamo and the military commissions still exist, and we cannot forget that.

From GTMO: CP&R Military Commission Observation, Day 1

Kelli Stout, Research Fellow at the Center for Policy & Research, is blogging from Guantanamo Bay, Cuba this week as an NGO observer.

Since 2004, the government has permitted non-government organizations (“NGOs”) to travel to the Guantanamo Bay Military Base (“GTMO”) to observe military commissions, the tribunals established to try detainees of war crimes. The press is also permitted to come, though it operates under considerable restrictions. Prior to 2004, military commissions were closed to NGO observers. This veil of secrecy raised questions about the process afforded detainees and the nature of the commissions themselves. While the rules of the commissions were published, the lack of observers raised fundamental questions about what exactly was taking place and why it needed to be kept secret. While NGO observers are now allowed to attend the hearings, like the press, their access is not without restrictions. The government, for example, does not permit NGO observers to hear any evidence it deems classified. It accomplishes this restriction by screening testimony and delivering it to observers on a delay feed after determinations regarding classification is made. While this is a relatively quick process, there is no opportunity to check whether non-classified information is excluded improperly.

On Thursday, February 10, 201,1 Seton Hall University School of Law was granted observer status to observe military commissions at GTMO. As a result of this status, the law school was permitted to send a single observer to the military hearing of a detainee identified as Norr Utman Mohamed scheduled for Monday, February 14. Having spent the last three years in law school working on the Guantanamo Bay Reports, I agreed to go.

I arrived at Andrews Air Force Base at 5 A.M. on Valentine’s Day morning for my flight to GTMO. I had previously contacted a few of the other NGO representatives going, but I did not know what to expect when I got to Andrews. My flight included representatives of the media, both national and international, the prosecution team, the defense team, the NGO representatives, and military personnel. It’s an incredible expense for the government to get everyone to GTMO and an incredible expense and time-commitment for all of us as well. The purposefully isolated nature of GTMO is a double-edged sword. On the one hand, the government has asserted that such isolation is necessary given the nature of the detainees and the potential threat they pose to the United States. Regardless of whether that argument is accurate, the isolation has had the more immediate effect of reducing the detainees’ access to counsel and wreaking havoc on the most basic sense of criminal process as we know it in the United States. If there is any questions that the GTMO detainees were different, one need only look around at the faces lined up at Andrews Air Force base or later on the base at GTMO itself to realize that regardless of the level of danger these detainees may or may not pose, they are not treated like ordinary prisoners.

Carol Rosenberg from the Miami Herald was on my flight. Rosenberg is a die hard journalist in the best tradition. She has covered virtually every military commission down here, ensuring the public is informed of the substance of the hearings as well as providing critical analysis of the controversial procedures. The Department of Defense has tried to exclude her from hearings, alleging that she had printed material about the commissions that weren’t approved for public dissemination. In Rosenberg’s case, even though the information was in the public domain, the government was able to prevent her from publishing it if it came out of a commission. This is just one of many Kafka-esque rules the media must follow in reporting. In an effort to avoid a repetition in the allegation, Rosenberg now asks a member of the military press escort to review the information she transports down to GTMO so that she has a witness that her information came from a source other than the commission itself. This censorship of publicly available information seems odd on so many levels. Primarily, if the information is already available through public sources, what interests does the government protect by attempting to regulate its use depending on its source? Such aggressive control of information (even public information) seems to be the norm though at GTMO. Despite these obstacles, Rosenberg, and other observers and the press have fought to keep the American public informed of the commission proceedings.

Rosenberg’s presence not withstanding, the U.S press still seems under represented at GTMO. Approximately a third of the eligible press outlets simply opted not to come this time. It’s possible that the U.S. press did not come because the hearing is supposedly only a sentencing hearing, as opposed to a full adjudication of guilt. Another possibility is that the novelty of GTMO reporting has diminished with the passage of time. The more remote the events that led to the hearing, the more procedurally nuanced and anti-climatic the hearing, the lesser the press and public interest in the outcome. GTMO has become stale in the news cycle. There is a weariness in the public conscious surrounding the hearings and the detainees themselves. This is in no small part encouraged by the government’s multi-faceted public relations machine – on the one hand the hearings are veiled in secrecy and physically remote, on the other hand the public is simultaneously and patronizingly promised that “there is nothing to see here” and that the government is merely doing what it has to do to keep the country and the citizenry safe. Allegations of human rights violations are old news that are often perceived more as unfair criticisms to the United States by a public that has managed to retain a blissful ignorance and indifference that is fostered by the Government’s policy. But this doesn’t mean that commissions aren’t still occurring and the concerns they raise aren’t still real.

In contrast to the absence of the U.S. press, the international media maintains a strong presence. In some ways, this seems counter-intuitive. The U.S. public and press should have a more immediate stake in the proceedings that allegedly promote our national security and interests. Yet the foreign press can still play a vital role forcing accountability and fairness in the hearings themselves.

GTMO itself does not feel different than other military base. It has places to eat, recreational sports, a small library, a grocery store and a couple of bars. It’s beautiful here. People scuba dive and run along scenic trails. It’s hard to imagine that a high-security detention center for alleged terrorists sits a few miles away – a detention center that has been, and continues to be, the focal point of so many human rights violations.

There are five representatives of NGOs here-Human Rights Watch, Human
Rights First, ACLU, the National Institute of Military Justice, and Seton Hall Law’s Center for Policy and Research. We are kept separate from the media. In fact, while we have to struggle to find a place to get internet, the media gets a whole area where they can go and report what’s going on. But we as NGOs do not get the same access, although we are also here to report on the military commissions. We are kept separate from the press during the military commission as well. And while we may attend press conferences after the hearing, we may not ask questions-only the press can. I will continue to explore this dichotomy in my time here and post more about it at a later time.

The military commission for Noor Uthman Mohamed begins February 15. Noor is charged with material support of terrorism and conspiracy. Noor’s commission has been going on for years now, slowed by delayed discovery and one prosecutor’s resignation from the case because of lack of fair procedures. For this week’s hearing, the prosecution has brought in several experts, including an al Qaeda expert from the Pentagon.

If you would like the latest on the case, I recommend Carol Rosenberg’s article at I will post more information on the case as the hearing commences.