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A View From Gitmo: Proceedings lack transparency available in US courts

June 18, 2014
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gitmo-riley sigGuantanamo Bay, Cuba, has finally been in the news again recently, but Americans have been in the dark too long with little or no information about the prosecution of alleged terrorists at the naval base. I recently had the privilege of serving as an observer for the Indiana University Robert H. McKinney School of Law Military Commission Observer Program and traveled to Gitmo from April 21 to 28 to witness the pretrial motions hearings in U.S. v. al-Nashiri. Abd al-Rahim al-Nashiri is accused of masterminding the bombing of the USS Cole in 2000.

This is the first article of a three-part series that I intend to write about legal procedures that are in contravention of the American court system. By creating the Military Commission Office in 2009, Congress has created a new paradigm like no other. But as any good appellate lawyer, I would first like to frame the issues and comment on how my experience has influenced my thoughts regarding the exchange of Sgt. Bowe Bergdahl for five Afghans imprisoned at Guantanamo Bay.

Guantanamo, at its core, remains a lawless place and at odds with the American value of transparency in its courts. Many dozens of inmates, not accused of any crime and, in fact, cleared for release still remain at Gitmo. Their release has nothing to do with legalities or justice, but just depends on the luck of the draw. There has never been an inmate repatriated to Yemen, the nationality of al-Nashiri. In fact, even if he is found not guilty (an unlikely prospect) he still will not be freed or allowed to leave Gitmo. He is referred to as a “forever prisoner.” So, the exchange of Bergdahl and the prisoners that were released is tied less to court decisions than to the politics of the time.

My first observation has only been reinforced these last few weeks. The hearings that I observed leading up to trial amount to political theater. The prisoner exchanges, which should continue, seem like a show. Legal principles are being re-interpreted with an eye toward satisfying the political wind of the times.

So, the first issue we should consider before we debate whether the transfer of five Afghans was lawful is this: the American public should ask themselves whether the detention of these prisoners is lawful. Many are held without charges being filed, there are few or no protections guaranteed by the Geneva Conventions as was true in prior wars, and the hearings that I observed did not follow constitutional principles that guarantee a fair trial.

Twenty prisoners were first taken to Guantanamo Bay to inaugurate Camp X-Ray Jan. 11, 2002. It is hard to get an accurate account of how many detainees are in Gitmo, but on April 15, 2014, a total of 2,268 remained at the camp, up from 2,127 as of Nov. 6, 2013 – before the prison camp imposed an information blackout. The cost to house one detainee a year in July 2011 was estimated to be $800,000 a year. By July 2013, it was estimated to cost $2.7 million per prisoner based on Defense Department figures. Most of the reporting coming out of Gitmo is from Carol Rosenberg at The Miami Herald, who has an up-to-date twitter account that I recommend, @carolrosenberg. Also, I encourage you to go to the IU McKinney Law School website, mckinneylaw.iu.edu, where there is a link to the MCOP program and its blog.

Al-Nashiri was arrested in 2002, and he is facing the death penalty as the alleged mastermind of the October 2000 suicide bombing of the USS Cole that killed 17 U.S. sailors. Even though he was arrested in 2002, he did not arrive at Gitmo until September 2006, as he was held in various “black sites” that the CIA operated.

It has been reported by Rosenberg and Adam Goldman at The Washington Post that three European countries hosted CIA “black sites” – Lithuania, Poland and Romania. Al-Nashiri was at the Polish site from December 2002 to September 2003, and then moved to other sites. The government has admitted that he was waterboarded many times, threatened to be killed with a power tool, threatened that his mother would be raped, and he was sexually abused. These are the tortures that the government admits.

One of the most contentious motions being considered in the al-Nashiri hearings was first argued in February, and on April 14, Judge James Pohl granted the defense attorneys’ limited discovery about what had happened to the defendant while at a black site. He ordered the CIA to give defense lawyers details – names, dates and places – of its secret overseas detention and interrogation of al-Nashiri.

When I was there in April, the government kept referring back to Appellant’s Exhibit 120 and wanted the court to rescind the part of its order that would allow the defense to have that information. In fact, the government’s motion to reconsider was the main issue argued at the recent June hearings.

The government has been giving the defense either redacted versions of its discovery or summaries. But since the government is in charge of discovery, they get to decide what is appropriate for the defense. Without Rick Kammen’s and other defense members’ relentless arguments about what they need in order to conduct a death penalty trial, there would be no need for a trial of any kind. Keep in mind that all the attorneys have top secret classification so they can read those documents. But their client does not have top secret classification so they cannot discuss those documents with their client.

While on a break at Gitmo, a family member of a serviceman killed in the bombing said loudly and in my presence that Kammen should just get on with it because all “we want to do is kill him (al-Nashiri.)” I understand that this is a war like no other, but we shouldn’t lose sight of our values of fairness and belief in the rule of law.•

__________

Patricia Riley, a judge on the Indiana Court of Appeals, is participating in the Indiana University Robert H. McKinney School of Law Military Commission Observer Program. The opinions expressed are those of the author.

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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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