I Was a Legal Observer in Guantánamo Bay

Matthew Cowherd

The US Military is conducting one of the largest ongoing legal operations in history with little-to-no attention from the American public. Select groups of observers are invited to attend, scrutinize, and even publish critiques of these proceedings. This is an unprecedented opportunity for young attorneys to see the prosecution of some of the most significant criminal trials occurring in the world. At the same time, observers ensure that the rights of the defendants are upheld under US and international law.

The current hearings conducted under the Military Commissions Act of 2009 by the Office of Military Commissions at Guantánamo Bay Naval Base are comprised of two main cases. The first is the government’s capital case against the five accused coconspirators who allegedly masterminded the attacks of September 11, 2001, on the World Trade Center and the Pentagon—the “9/11 Trial.” The second is the case against the “USS Cole Defendants,” those persons accused of orchestrating the suicide attack on the US Navy destroyer USS Cole as it was being refueled in Yemen’s Aden harbor on October 12, 2000.

Most people are unaware that these historic trials are underway. While the underlying events changed the course of American history, few learn anything about the details of the government’s attempt to prosecute the underlying crimes, except for those who have the chance to bear witness.

Thus far, the proceedings have consisted of a litany of pretrial motions and hearings. The actual trials have not yet begun. The Chief Prosecutor, US Army Brigadier General Mark Martins, requested in August 2017 that jury selection begin in January 2019. That request has been rejected by the Military Judge, US Army Colonel James L. Pohl. The trials have been delayed, in part, because the hearings are only scheduled on average once every two months, for two- to three-week sessions. The hearings are held on a relatively crude compound at “Camp Justice” where there is a single functioning courtroom consisting of little more than four walls. The courtroom was constructed in the “expeditionary” mode, a cost-saving principle that provides no permanent structures or space for legal teams to set up offices and that is designed to be disassembled and relocated. Each session requires travel to and from the United States by a host of people—the defense teams, the prosecution, commission staff, paralegals, members of the media, the judges, September 11th victim’s families who are invited to observe, and the Non-Governmental Organizations (NGOs) legal observers. This entourage typically travels in one chartered flight from Andrews Air Force Base at the expense of the government. All observers require visitor’s orders from the Commander of Guantánamo Naval Base.

For each two- to three-week session, several NGOs are invited to send observers on a rotating basis as space is available. Those observers are given a great amount of access and opportunity to question key personnel as part of the Department of Defense’s efforts to be transparent and to comply with the statutory requirement that the hearings are technically “public.” (2016 Rules for Military Commissions, Rule 806). This is a unique opportunity for young lawyers to gain an introduction to the military justice system and to take part in a precedent setting process with clear human rights implications that impact our government’s political relations around the world.

Observers must be prepared for the Commission to start and stop on short notice as unexpected and pressing matters arise, including hearings that are closed to all observers, primarily due to the classified nature of the evidence being discussed. It can, at times, be a frustrating experience, consisting of days without hearings or hearings that adjourn abruptly. But, as an observer, you will be afforded remarkable access and exposure to a process that few Americans can experience. Within 24 hours of your arrival in Cuba, you will meet personally with the defense teams who will likely brief all the NGO observers on that session’s upcoming hearings. You will be given a chance to review all the relevant filings and briefs. You will have at least one sit-down meeting with the chief prosecutor, General Martins, and you will also meet with the head of the military defense team, US Marine Corps Brigadier General John Baker. You will be allowed to observe the media briefing for that session. In some cases, you may be provided a tour of the courthouse and compound, including the holding facilities for the accused.

Serving as an observer will teach you a lot—you will engage with issues ranging from procedural due process and the rules of evidence and privilege, to broader matters concerning human rights and international law. And in the process of this engagement you will be helping to ensure that the hearings are, and remain, fair and open.

The Office of Military Commissions first granted observer status to five NGOs in 2003: Amnesty International, Human Rights Watch, Human Rights First, the American Civil Liberties Union, and the American Bar Association. Since that time, 20 additional organizations have been approved to send observers to attend the commission proceedings: National Institute for Military Justice, National Association of Criminal Defense Lawyers, Heritage Foundation, the Brennan Center, New York City Bar Association, Seton Hall University School of Law, Judicial Watch, University of Toledo, Duke University, National District Attorneys Association, University of New Mexico School of Law, Pacific Council on International Policy, Henry Jackson Society (London), Open Society Foundation, Indiana School of Law, Geneva Academy, Georgetown University Law Center, Peaceful Tomorrows, National September 11th Memorial & Museum, and Reprieve. While the ABA is no longer accepting applicants to observe the proceedings at Guantánamo, hopeful applicants are encouraged to research and inquire with the 24 other approved organizations.

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Matthew Cowherd

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Matthew Cowherd is an associate at BakerHostetler and a reservist in the US Army JAG Corps. He served as a legal observer at Guantánamo Bay in July 2016 on behalf of the New York City Bar Association’s Committee on Military Affairs and Justice. The views expressed in this article are those of the author and not necessarily those of the US Military, the New York City Bar Association, or of BakerHostetler or its clients.