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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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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 http://www.miamiherald.com/2011/02/10/2060899/pentagon-scraps-guantanamo-hearing.html. I will post more information on the case as the hearing commences.