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?


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