Kelli Stout ’11, a Fellow in the Center for Policy and Research, visited Guantánamo Bay Military Base with observer status in February, as a representative of Seton Hall Law, to observe military commissions, the tribunals established to try detainees for war crimes.
Day Four
In this fourth and final dispatch, sentencing hearings continue for GTMO detainee, Noor Uthman Mohamed. He already pled guilty to providing material support to terrorism and conspiracy to provide material support to terrorism. The lack of live testimony gives the proceedings a surreal feel.
Day four and the commission got weirder. Today, the courtroom transformed into a Stepford Wives movie script, only adapted to a trial setting. Every procedural rule was followed. The judge was evenhanded and polite. Both sides were able to present their cases. But there were no objections or cross-examination. The adversarial character was completely absent and in its place, two tables of attorneys going through (some of) the motions.
We have to remember that this sentencing hearing commenced because of a plea agreement and a short stipulation of facts. We observers in the glass box are not privy to the complete agreement, which could include agreements to stipulate to testimony, back off from rebuttals, etc. But that possibility doesn’t alter the strange appearance of the proceedings today.
The prosecution began by reading to the panel members the stipulation of facts, explaining Noor’s travel to Afghanistan, training at Khalden training camp, and his subsequent stay in a safe house. The prosecution read from the diaries of terrorists, played a video of Abu Zubaydah, and showed pictures of wires and bomb-making plans found at the safe house where Noor resided. But then, instead of calling live witnesses, the prosecution carefully read through pages and pages of stipulated testimony of the witnesses it would have called. The defense, including Noor, had agreed that the testimony in those documents would be the facts the witnesses would establish had they been present. We heard no live witnesses and no cross-examination.
And that’s not to say the prosecution’s case was without obvious holes. The prosecution focused on the lives of other well-publicized, alleged terrorists who happened to train at Khalden and those men’s hatred for America. It never offered even stipulated testimony that Noor himself detonated any bombs, took up any arms, or even hated America (although it could be inferred that he knew the types of men he was training with). At one point, the prosecution read stipulated testimony describing how a man who had trained at Khalden brutally tested poison on dogs. Despite the clearly prejudicial nature of this evidence, the defense remained silent, never addressing it.
The defense, however, played its own case well. Taking advantage of Noor’s right to make an unsworn statement without cross-examination, the attorneys read his unsworn statement describing his desire to go back to Sudan and live in peace as well as the suffering he has been through during his time in U.S. detention. It also offered declarations from his tribal leader and a non-government organization located in Sudan, who were ready to help Noor reintegrate into society. Two of the government defense attorneys even traveled to Sudan to visit Noor’s family. But again, all the evidence was written and read to the jury. The prosecution, like the defense, made no objections, remaining silent.
Even in its “rebuttal,” the prosecution only made glancing reference to other stipulated testimony, stating that in November 2002, eight months into his detention, Noor had stated the Americans had treated him better than he expected. The defense presented no evidence in surrebuttal, despite previously admitted evidence that would establish poor treatment during his later years in confinement.
And with that, the show and dance ended for the day, just in time for Noor’s afternoon prayer. Today was definitely odd, but perhaps to be expected when scripted by a secret pre-trial agreement, the outcome of which will not likely be changed by a real jury or a panel of military members. They just have to go through the motions, bang the gavel down, and we can get off this island.
So, why again, did we come here? Today is day four. Morale among the observers (and probably other participants) is low, people are tired, we want to go home. Dozens of people have been away from their families, their homes, their lives, to hold this military commission. The government has put them in tents and small trailers and subjected them to military escorts at all times. The observers take 90-minute lunches - because it takes that long to get everyone out back through security, gathered by their military escorts, bused up to the dining hall, and back. We talk about the financial costs of these commissions, but we never talk about the human aspect—how much it takes out of all of the people who are here to participate and watch the commissions, how much we have to give up to be in Guantánamo Bay. And to what end?
Day Three
In this third dispatch, sentencing hearings ensue for GTMO detainee, Noor Uthman Mohamed, who has already pled guilty to providing material support to terrorism and conspiracy to provide material support to terrorism.
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 — which can get a little complicated — 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 to the States on Saturday, but if they need another day to finish the hearing, they will scrub the Saturday flight, hold court Saturday, and fly out instead on Monday. The good news is that if this 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 plea 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 may just 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 faces a sentencing hearing. A panel of commissioned officers on active duty will make a decision as to Noor’s sentence. Because the government and Noor agreed to a sentence as part of his plea, the panel’s decision will only take effect if the panel imposes a sentence below the one the parties agreed to. Because I think that such a result is very unlikely, the hearing feels like it is meaningless. The decision need not be unanimous. It requires three quarters of the panel to agree to a sentence of anything more than 10 years. It only requires two-thirds to agree to any sentence below 10 years.
As part of the plea agreement, Noor waived away many of his rights, including any claim to confinement credit, and 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.
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 — even 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 — instead they refer to him as “enemy belligerent,” “enemy combatant,” “terrorist.” Out of 15 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 judge understood 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 somewhat meaningless to me, 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?
Day Two
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.
Day One
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.