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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.

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RAGS, DETAINEES, & DEATH


by Sean August Camoni

Personally, the single most disturbing detail in the entire NCIS report was that the dead men had rags deep in their throats. My first reaction to that image was an instinctual abhorrence, much the same as when I imagine death by drowning.  What could be a more terrifying way to die?  The rags in the throats are especially disturbing not only for this horror-movie quality, but also because they  strongly undermine the military investigation’s conclusions about what happened that night.   The more I consider this detail, the less it seems to jibe with the official account of “suicide by hanging.”  The rags became even more important later, when I heard Sergeant Joe Hickman’s account of the meeting he attended the morning following the deaths with Colonel Bumgarner, who told Sergeant Hickman and about 50 others that the men died because of rags stuffed in their throats, but that wouldn’t be what they heard on the news.  At the beginning, I didn’t know that.  All I had was the NCIS report, but still, those rags haunted me.

According to the medics, the rags were found when they tried to intubate a detainee and found the airway was obstructed.  The obstruction, when removed, was a rag, or cloth, large enough to block the  airway.  But how did it get there, and why?

If these men killed themselves by hanging themselves from the ceiling of a locked cell, then I must logically conclude that each detainee put the rag in his own mouth.  Ignoring the question of “why” for the moment, let’s follow that scenario through to the end.  I place a rag in my mouth.  I bind my own hands and feet and throw a hood over my head, a noose around my neck.  I step off the sink.  What happens?  The noose constricts my throat.  It closes the trachea, or windpipe, which leads to suffocation (because I can no longer breathe) and I die.  Now, if the windpipe is closed off, how do I inhale the rag?

So it can’t have happened after I step off the sink.  What about before I step off?  Do I swallow the rag?  Even assuming I could get it past my gag reflex, it wouldn’t matter— swallowing would pull the rag down the esophagus toward the stomach, not the trachea toward the lungs.  So I didn’t swallow it.  That leaves aspirating the rag, or breathing it down my own windpipe, and then hanging my self.  This makes no sense.

First, imagine yourself purposely sucking a sock down your own windpipe.  If you accidentally aspirate a small amount of water when drinking (i.e., it “goes down the wrong  pipe”), what happens? You choke and cough it up involuntarily.  Your body won’t let you breathe in anything but air without fighting you.  So physically, it is highly unlikely that a person could do this (let alone three), but let’s say they did.  Would it be quiet enough so as not to attract a guard?  Certainly not. There’d be thrashing and coughing and heaving and choking as the body struggled to expel the mass.  Far from a quiet affair.  Further, even assuming a human being (or three) could physically commit the act of inhaling a rag, why do that AND hang yourself?  If you planned on inhaling the rag, you’d have to do so with the purpose of cutting off your supply of air.  Hanging yourself accomplishes the exact same goal.  Why do both?  If one could inhale a rag effectively, that would seem to  be far less disruptive under the circumstances of constant surveillance.  If you could quietly inhale a sock and die on your mattress, no one would know until morning at least.  On the other hand, if you wanted to make a statement and hang yourself right under the guards’ noses, why suck a rag down your windpipe and take the risk of blacking out before you can complete the preparations and step off the sink?  Why the redundancy?  It’s patently ridiculous, and utterly implausible.  I don’t buy it.

I try to imagine a scenario in which the human body could inhale a rag, deep enough into the trachea to effectively block passage of a medical tube.  I imagine breathing, with a rag in my mouth.  I would breathe through my nose instinctually, so my nose would have to be blocked somehow.  So my nose is blocked, and I have a rag in my mouth.  My hands must be restrained somehow, otherwise, why would I not, instinctually, take the rag out of my mouth?  I need air.  I must be struggling to draw a breath.  I must be pulling hard with my diaphragm, sucking for a drop of oxygen to make it past the obstruction in my mouth and into my lungs— but none comes.  I pull harder and harder; I am dying.  My body’s need for air overcomes the reflexive reactions that would otherwise resist, and my struggling sucking pulls the rag in my mouth down my throat, and I am helpless to do anything about it.  I die, choked with a rag deep in my throat.

This is the only scenario that I can come up with in which the human body could aspirate a foreign object as bulky and difficult as a rag big enough to clog the trachea.

What scenario includes all of these elements?  Hands restrained: the dead men’s hands were bound, so perhaps hands bound.  Rag in the mouth.  Nasal passage obstructed.  Each dead man had ligature marks around the neck, so maybe some sort of binding around the neck.  A struggle for air.

A horror akin to drowning.