Muslim Link Dispatch from Guantanamo

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Our Special Correspondent Reports from the Infamous Prison Symbolic of the War On Terror

 

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I attended the military commission proceedings in United States v Abd al Hadi al-Iraqi the week of January 26-30 in Guantanamo Bay, Cuba.

The U.S. Naval Station Guantanamo Bay, Cuba, has served as the location for conducting military commissions since 2004. In operation since 1903, the station provides support to U.S. and coalition forces in the Caribbean Sea.  It now also houses law of war detainees at the detention facility run by the Joint Task Force Guantanamo (JTF-GTMO). Military commissions (court proceedings for law of war detainees) operate in facilities on a former military air field in an area designated “Camp Justice.”  “Camp Justice” also houses a city of tents where media, observers and attorneys reside which attending proceedings at the military commission.

Prior to each week or session of a military commission, the judge, court staff, defense attorneys, prosecutors (or “trial counsel”), interpreters, media, and commission observers (including victims and law observers), fly down to GITMO, all on a  defense contracted airplane from Andrews Air Force Base, outside Washington, DC.

On Sunday, January 25, I found myself meeting just inside the gate two other journalists and Lt. Colonel Myles Caggins, the Department of Defense spokesman for Guantanamo, Detainee Policy, Military Commissions, and Periodic Review Secretariat.  I met defense counsel and prosecutors as we waited to board the plane.  There was clearly a large group of people (counsel for either side, court staff and security personnel) who knew each other and this was a regular rendezvous for them all.  After mechanical problems with our plane and the replacement, we finally took off hours after a scheduled 10:30 am departure, for the three hour flight to Guantanamo Bay.

More than 17 miles of fence and razor wire separate the base (45 square miles) from the rest of Cuba.  Marines guard the American side, and Cuban troops and land mines are on the other side.   As we flew into the airstrip at GITMO, out of the descending plane I had my only observation of the “wire”.  After landing, we went thru “customs” by showing our passports to US military personnel in the airport (Leeward Point) on the base.  From the airport, we then waited for the ferry that would take us to the other side of the bay and Camp Justice.

Because of our late arrival, we toured the media operations center and quickly went to show our passports to get our JTF media badges.  We then attended a press briefing by Chief Prosecutor Mark Martins and then defense counsel for Abd al Hadi Ai-Iraqi, US Marine Corp Ct. Col. Thomas Jasper and US Air Force Major Robert Stirk.  After signing up for our media internet access with the civilian contractor, we headed to dinner at one of the few restaurants on the base (O’Kelly’s Irish Pub) and to pick up some provisions at the 24 hour convenience store on Marine Hill, before heading to bed in the tent.

I had my own corner of a tent, with plywood walls and a curtain for a door – and air-conditioning that kept the tent well below 70 degrees – I slept with two blankets and multiple layers as well as my cashmere scarf wrapped around my head to keep warm.  There were female and male latrines and showers – unfortunately the female hot water heater wasn’t working that week, so I have a week of cold showers – but I understand it has since been replaced.  There is a tent set up like a recreational lounge of sorts – with various games and a TV that is hooked up to…nothing.  There are small microwaves and frigs in each tent and a larger frig in the recreation tent.

Each morning, after a breakfast either at the galley or made in the media kitchenette with provisions bought at the Navy Exchange or the mini mart, I attended commission proceedings in Courtroom 2.  Media observers can chose between watching court feed (on 40 second delay for security review) in the media operation center or attending the proceedings in the gallery, behind double glass.  The media operations center has desks set up for each person, complete with a phone and (slow…) Internet access bought through a civilian provider.  The media center has a small kitchen and television which plays the court feed or cable television.  In Courtroom 2, viewing from the gallery means one can see live activity in court – although audio (and video) feed is on a 40 second delay.   There are also live feed to various sites stateside for media, the public, and the victim’s families, depending on the proceeding.  For those watching in the courtroom gallery, which is separated from the courtroom by double soundproof glass, observers are only allowed to bring in paper, a writing instrument and bottled water.  There is also a single approved sketch artist who is allowed to bring their own materials into the gallery.

Observers first go through metal detectors and leave electronic devices in a tent away from the courtroom and names are written in a logbook.  Then, when the courtroom opens up, our names are checked against a list at the door of the gallery, and we are given seat assignments in the gallery.  The media operations escort sat behind us and to the side.  Commission observers must leave the courtroom during breaks and stand around outside.   While I took copious notes of the proceedings, to include my thoughts as the proceedings unfolded, this was not entirely necessary as two court reporters transcribe the proceedings and the transcripts are released to us almost immediately after the morning and afternoon sessions (and made available to the public on the commission website).  For lunch each day, in addition to food prepared in the kitchenette, media can order Subway sandwiches for delivery during the lunch recess or be escorted to the galley by the media center staff, army reservists deployed to GITMO who staff the center in 9 month shifts.  Someone from the media center staff is available 24 hours a day when media are at Camp Justice for any issues that arise and for access after-hours to the work rooms for media.  The staff also drives us to dinner as well, or to evening activities - the bowling alley, bar, or outdoor movie theater, where “The Gambler” and “American Sniper” were playing the week I was there.

While there are legal arguments on some defense motions on Monday, the rest of the week of the commission time was spent dealing with the “emergency defense motion for appropriate relief to cease physical contact with female guards”.  This motion was filed after an October 8, 2014 incident where for the first time since Mr. Hadi Al Iraqi was brought to the detainee camp in 2007, a female guard had been assigned to the unit escorting him, which necessarily would include her touching his person.  Mr. Hadi Al Iraqi filed this motion after he had made a repeated request for religious accommodation.  The institutional response, as outlined at the hearing, was the line of command questioning him and ultimately a forced cell extraction to bring him back from his legal visit to the camp and his cell.  In the motion, the defense indicated that Mr. Hadi al Iraqi would no longer attend legal meetings or Commission sessions if female guards continue to perform these duties.  The importance of the motion to Mr. Hadi Al Iraqi was summed up by his counsel who said in a press conference that “he has nothing else left” but his religion.  The Religious Freedom Restoration Act of 1993 (RFRA) 42 U.S.C. §2000bb-1 provides in part: "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the burden "is in furtherance of a compelling governmental interest," and does so by "the least restrictive means."  Mr. Hadi al Iraqi 's Muslim faith requires him to avoid physical contact with any females to whom he is not married or related, as supported by his declaration and that of an Islamic scholar.  The Military Commission issued an interim order, pending a decision on the motion, enjoining the use of female guards in positions that require touching of Mr. Hadi Al Iraqi during movements to and from legal meetings and Commission hearings, pending a final ruling on the motion.  So, on January 27 and 28, the Commission received evidence and heard testimony and legal argument on the motion. As of the filing of this story, many of the pleadings have not been unclassified, including the exhibits entered into evidence at the hearing, some of which were read into the record, and thus are not yet available to the public.  While the Military Commissions strive for “Fairness Transparency Justice”, there is a 15 business day delay before public release of any filing, per security review pursuant to 2011 Regulation for Trial by Military Commission Chapter 19 Section 4.  And this means you can be sitting in court and not have been able to review filings that the parties are discussing.  The week of proceedings ends as it began, with a press conference with the head of the prosecutors (not the prosecutors assigned to the case before the commission that week) and defense counsel.

On the last day of my trip to GITMO, because the Commission ended a day early, I went on a windshield tour of Camp America and the detainee prison complex).  The Joint Task Force Guantanamo, which oversees detainee operations, has a slogan of “Safe Humane Legal Transparent”.  The majority of those working at Camp America – the detainee camps and joint task-force headquarters -  are temporary – as staffing of the detention center is done by reserves deployed there for 6, 9 or 12 month tours.  Only 122 detainees remain, down from a high of 677 in July 2003 (and a total of over 780 men held during the 13+ years of operation).  Detainees are now held in “state of the art” Camps Echo, 5, and 6 - and the secret Camp 7, with a classified location.  We drove by the first camp – Camp X-ray, which can only be described as a kennel made for humans – cement stabs in between wire fences and barbed wire.  My description doesn’t and can’t do justice to the horrifying sight.  It was a temporary structure where detainees were held for 91 days in 2002 and has been ordered preserved by a federal judge as evidence for detainees in lawsuits.  It is not covered and open to the elements.  Media tours of the prisons don’t occur during weeks when military commissions are held, so I could not see inside, but Camps 5 and 6, protruding above barbed wire and covered fences, appear like numerous prisons and jail that I have seen before.  What is clearly different is the circumstances and process that lead the men to end up there and the quagmire of facts and law that has resulted in 122 men remaining, of which 54 are cleared for release, 35 are “forever prisoners” under the Law Of War and 33 are pending trial or stand convicted.  I now also hope to return for the “media” tour of the camps to see what the inside really looks like.

The opportunity arose for me to attend the proceedings and I gladly agreed.  To say that the plight of the men detained at Guantanamo Bay has captured my attention would be putting it mildly.  It was a fascinating week that I continue to mull over in my head – as I continue to read pleadings and books about Guantanamo and watch various documentaries and commentaries about the camps.  I started The Guantanamo Diary by Guantanamo detainee Mohamedou Ould Slahi while on the flight to GITMO and finished on the ride back; I then started Murder at Camp Delta by former Guantanamo Bay guard Joseph Hickman.  I had the pleasure of spending the week in Guantanamo with Miami Herald Guantanamo reporter Carol Rosenberg, who covered the detainees and commissions since Day 1 of the detainees’ arrival at Guantanamo.   I will continue to follow proceedings by viewing the feed at Fort Meade in Maryland, viewing the transcripts, and, I hope, returning again to Guantanamo to view Commission proceedings.  I will therefore follow up here with analysis of the religious accommodation request, once I have all the exhibits and filings, as well as reporting on the request in the 9/11 detainee proceedings for the same accommodation.

Jenifer Wicks is a special legal correspondent for the Muslim Link.  She is the Litigation Director of the Civil Rights Department at the Council on American-Islamic Relations.  She is a Professional Lecturer in Law at the George Washington University Law School.  She has been a practicing criminal defense and civil rights attorney for 16 years.

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