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A Dispatch from GTMO: Day Two

Seton Hall Law student observes a hearing at GTMO

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. In this second dispatch, Kelli describes the hearing at which GTMO detainee, Noor Uthman Mohamed, pleads guilty.

After eight years of confinement, Noor Uthman Mohamed got his hearing. But instead of insisting on 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 where the non-government organization (NGO) representatives and the media stay. While the courtroom itself resembles any other civilian courtroom, 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./p>

When I arrived 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 sat along the side wall closest to Noor.

I was seated along with the other NGO representative and the media in a partitioned-off observing room made of bulletproof and soundproof glass. The observing room is at the back of the courtroom about 20 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 had been five conferences addressing pretrial issues between 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, looking somewhat defeated — in many ways he had been.  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. He was 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 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 privilege against self-incrimination, right to trial by the facts by a military commission, and 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 Guantánamo.

What I find interesting about the plea are the ethical issues that confine the attorneys in this situation. Noor essentially 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 not recognized war crimes, though they are named and prosecuted as such under the Military Commissions Act 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, and instead in military commissions, where more government-friendly rules of evidence apply.

During the press conference after the hearing on Tuesday, a reporter asked Chief Prosecutor 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 Guantánamo 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 Guantánamo and the military commissions still exist, and we cannot forget that.

Read Kelli Stout's first dispatch from GTMO.