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A Dispatch from GTMO: Day One

Kelli Stout '11 observes military tribunals and reports back

Kelli Stout ’11, a Fellow in the Center for Policy and Research, is visiting Guantánamo Bay Military Base with observer status, as a representative of Seton Hall Law, to observe military commissions, the tribunals established to try detainees for war crimes. This is the first of her dispatches.

Since 2004, the government has permitted non-government organizations (NGOs) to travel to the Guantánamo Bay Military Base (GTMO) to observe military commissions, the tribunals established to try detainees for 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, 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 delayed 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, 2011 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.  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 question 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 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 published material about the commissions that wasn'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 of the supposed misconduct, Rosenberg now asks a member of the military press escort to review the information she takes 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 from a GTMO source?  Such aggressive control of information (even public information) seems to be the norm 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 opted out because the hearing is supposedly only a sentencing hearing.  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 is often perceived more as unfair criticism of 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 operating and the concerns they pose aren’t still real.

In contrast to the absence of the U.S. press, the international media maintain 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.  Nevertheless, 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, the 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 an 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 government 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.

Learn more about the Seton Hall Law Center for Policy and Research.

Learn more about the Center's series of reports on the Guantánamo Bay detention camp.