New to COMAJ, Veterans Assistance Project Lawyer Observes Guantánamo Bay
by Elisa Alcabes, Pro Bono Volunteer and Military Affairs & Justice Committee Member March 5, 2018
I am a new member of the Military Affairs & Justice Committee (COMAJ). I joined the Committee because of my work with disabled veterans, who I have represented on a pro bono basis before the Department of Veterans Affairs. I am currently engaged in reform litigation on behalf of the massive number of veterans waiting inordinate amounts of time for the VA to resolve their appeals of the denial of disability benefits.
I did not expect to visit Guantánamo Bay. It was never on my mind. I did not know that civilian observers have been going to watch the proceedings for several years. I was generally aware of the detention center, the horror stories, and the fact that some detainees were being tried, including those alleged to have planned and carried out the 9/11 attacks. But “GTMO” was not on my radar screen until I attended my first COMAJ meeting in January 2018. It was eye-opening. I learned that COMAJ, and more generally, the NYC Bar Association, was an official observer of the proceedings at GTMO. They needed a volunteer to attend in February. My hand shot up. I don’t know why, except that the opportunity to witness history in a remote place that had been the subject of so much controversy seemed compelling.
I was quickly approved for the observer mission. I was going to be attending pre-trial proceedings in the Hadi case. I knew nothing about Abd al Hadi Iraqi or the military commissions. I gave myself a crash course in both, using resources provided by Julie Jetton, who coordinates the observer missions for COMAJ, news articles written by Carol Rosenberg of the Miami Herald, who is a constant at GTMO, and the considerable amount of material available online about the proceedings and the detainees. I deliberately steered clear of detailed commentary about the wisdom of holding the proceedings at Guantánamo and the issues involved. I wanted to travel there with a clean slate, an open mind. I skimmed a few articles that suggested the proceedings should be moved or handled differently. Other than that, I was prepared to form my own impressions based on what I saw.
Before reporting on my observations and conclusions, I offer a few caveats. I am not a 9/11 scholar. I am not a military expert. Other than what I have read in the news and what I did to prepare for my trip, I do not have detailed knowledge of the detainees who are currently on trial at GTMO. I have been a litigator for nearly 30 years, though. I understand pre-trial motions. I have written them and argued them. I have appeared before judges. I have participated in trials. I am comfortable in a courtroom.
First, my impressions and experiences:
The island is beautiful – stunning really. Rolling hills dip down to rocky, peaceful beaches. There are few people around and vast expanses of empty space. The sunsets are breathtaking, turning the sky a deep orange-pink-blue. Windmill Beach is the largest of the beaches. It’s a rocky, gravelly beach that spreads out in a curve and is punctuated by small cliffs on either side. On one of the cliffs sits a gate and gatehouse—apparently the entrance to the detention center.
There were five NGO representatives on my trip, all deeply engaged in the process and eager to watch the Hadi hearings unfold. Three representatives were law students—one held a PhD in political geography, another was a former U.S. Marine, and the third, a former physical therapy student seeking a joint business/law degree. A fourth representative was a professor, currently UNESCO Chair for Global Humanities and Ethics Education at the University of Southern California and an active member of the Pacific Council on International Policy. I was the NGO representative with litigation experience.
Hadi is accused of serving as a high-level al-Qaeda commander who, among other things, allegedly led and executed lethal attacks on U.S. forces in Afghanistan, funded suicide bombings, and ordered roadside bomb attacks. One of his defenses is that he is not Hadi but, rather, someone named Nashwan al Tamir. In other words, he is not who the government says he is. The week I observed Hadi’s military commission proceeding, the key issue was a recorded deposition provided by Ahmed al Darbi, another detainee. Darbi had reached a plea agreement with the government and was about to board a plane to travel back to Saudi Arabia to finish out his sentence. During his deposition in August 2017, Darbi identified Hadi as a former al-Qaeda commander. Darbi was now being treated as a cooperating witness. He was due to take the stand in the Hadi case to be cross-examined by Hadi’s defense team. Essentially, this would be time-capsule testimony preserved for Hadi’s trial. If the cross-examination did not proceed, Darbi’s testimony could not be used.
The Hadi case is not a death penalty case, which I understand makes it somewhat easier to proceed. Learned counsel is not needed. His defense team is comprised of military and civilian lawyers, including civilian Adam Thurschwell and Navy Commander Aimee Cooper, highly skilled, experienced and effective advocates. Over the course of the week, my impression of the military commissions process evolved.
On Day 1, the Saturday of our arrival, we toured the courtroom facilities. No proceedings were in session. My first impression: How can we—the Unites States of America—expect to portray ourselves as a country of laws when we have built this courtroom in a remote location off the mainland in the backyard of a detention center notorious for torturing terrorists? I was willing to keep an open mind, though. I had promised myself I would not judge right away.
On Day 2, there was a Sunday session. A witness took the stand. He was a neurosurgeon. They called him “Neuro 1” because he did not want to disclose his name. In the proceedings the week before I arrived, Hadi’s defense team argued that Hadi was physically incapable of attending court—his right unless waived—because he was suffering the after-effects of four recent back surgeries and may need further surgery. The military judge—Marine Colonel Peter S. Rubin—refused to make a determination regarding Hadi’s ability to sit in court without first hearing a medical opinion. Judge Rubin directed a doctor who recently treated Hadi to attend the hearing and provide testimony. The doctor did not show up, essentially claiming that he was too busy with patients. Reading between the lines, he had not treated Hadi for a sufficient amount of time to provide an opinion.
Back to Neuro 1. He was obviously reluctant to disclose his name because he was about to tell the court that Hadi was medically cleared to attend the hearings. Yes, he might need surgery at some point in the future, but he has been improving since his last surgeries, and no further surgery is recommended at this time. This is not what Hadi’s defense team wanted to hear. After arguing that the anonymity of the witness made it impossible for the defense to evaluate his testimony, Thurschwell cross-examined Neuro 1. The witness stood his ground, with nuanced testimony indicating that Hadi may be in pain and will find it difficult to sit for prolonged periods of time, but he is medically able to attend. His presence in the courtroom, as opposed to sitting in his cell, would do nothing to exacerbate his back problem. The judge took under advisement the defense’s motion to abate the hearings based on Hadi’s medical condition.
After Neuro 1 left the stand, Hadi’s defense team argued two other motions. The first was a motion to permit the defense to retain a consulting expert on enhanced interrogation techniques. The defense argued that the expert was needed to help prepare Hadi’s team to cross-examine Darbi, who admittedly had been subjected to severe instances of torture. The government countered that a consulting expert was unnecessary. The defense had been in possession of the Darbi testimony for months and did not need expert help to undertake an effective cross-examination. The defense also sought access to psychiatric records for Darbi, which were privileged. The judge took these motions under advisement as well.
Day 3, Monday morning. The judge found Hadi was medically capable of attending court with accommodations. Judge Rubin denied the defense motions to retain an expert and obtain Darbi’s psychiatric records. Thurschwell then argued a motion to continue the Darbi cross-examination until April. This would post-date the scheduled departure of Darbi.
Day 4, Tuesday. The judge announced his rulings and the way forward on the Darbi cross-examination. The hearing would be continued to Saturday, giving the defense three more days to prepare. In addition, the schedule would entail two half-day sessions followed by a day off for Hadi to rest, then resume with two half-day sessions and a rest day until the cross-examination was complete.
Our NGO group was deflated. We had seen Darbi in Court. He sat in the back of the courtroom during the defense arguments seeking his psychiatric records. We had heard so much argument on the Darbi deposition, we were eager to hear Thurschwell’s cross-examination. But we were scheduled to leave on Saturday morning, the day the cross would start. We sought permission to stay until Sunday, but we were told this was not workable.
We made the most of our next few days, scheduling meetings with Carol Rosenberg, a walking encyclopedia of all facts—past and present—pertaining to the military commissions proceedings, the detainees, the prosecution and defense teams, the detention center and all things GTMO. We met with the defense team. And finally, we met with Wendy Kelly, who oversees the operations of the military commissions. During these meetings, I learned much about the military commissions in general and the challenges all the constituents faced. I also learned that a plan is underway to expand the military commissions’ facilities.
My observations and conclusions:
By the end of the week, my initial impression had changed significantly. Did I get used to the island? To some extent, living there for even a week enables you to see the base as more than its shadow. It is a living, breathing town. My closing observations:
• The residents, whether living there full or part-time, act with dignity and self-respect.
• The legal process is underway, but the pace is excruciatingly slow.
• The prosecution, defense and military judges are doing everything they can to handle the proceedings with professionalism.
• The military judge is highly-qualified, diligent and respectful of the parties. His task is a difficult one, though, as the military commissions process is virtually impossible to manage efficiently.
In March 2016, NYC Bar Association representatives Lynn Kelly and Barbara Berger Opotowsky traveled to GTMO and prepared a detailed report, which appeared in the New York Law Journal. The report appropriately and pointedly questioned the effectiveness of the military commissions as the forum in which to hold these proceedings, noting the vastly more efficient and open process that takes place in federal court. Two years later, I came away with similar questions. The process is slow and takes place outside the public eye. Without Carol Rosenberg’s astute journalism—at times minute-to-minute reports via Twitter—the American public would have little knowledge of what goes on at the military commissions. Ideally, the cases pending in the military commissions would be moved into federal court on the mainland or at GTMO. In light of significant resistance to bringing the trials back home, coupled with the current political climate, the question is how, if at all, this may be achieved.
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