Since 2003, the Office of Military Commissions has granted observer status to nongovernmental organizations (NGOs), including the American Bar Association, to “attend, scrutinize and even publish critiques of the proceedings” at Guantanamo Bay. Matthew Cowherd, an associate at BakerHostetler in New York and a reservist in the U.S. Army JAG Corps, served as a legal observer at Guantanamo Bay in July 2016 and writes about it in the May-June issue of TYL.
He details the “unprecedented opportunity … 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 U.S. and international law.”
The current hearings involve the government case against five accused coconspirators of the 9/11 attacks and another against those accused in the USS Cole attack in Yemen in October 2000. Both cases are still in pretrial motions and hearings.
“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,” Cowherd writes.
A host of people attend each hearing, including prosecution and defense lawyers, commission staff, paralegals, members of the media, judges, victims’ families and NGO legal observers.
Today, a total of 24 NGOs have been approved to send observers, including the ACLU, Amnesty International, Judicial Watch and the New York City Bar Association (under whose auspices Cowherd attended), in addition to the ABA.
Cowherd writes of the “remarkable access” that observers are given “to a process that few Americans can experience,” including meeting with defense teams, the chance to review filing and briefs, “at least one sit-down meeting with the chief prosecutor, General [Mark S.] Martins,” the opportunity to observe a media briefing and a tour of the courthouse and compound (“including the holding facilities for the accused”).
He emphasizes that observers “engage with issues ranging from procedural due process and the rules of evidence and privilege, to broader matters concerning human rights and international law,” all while “helping to ensure that the hearings are, and remain, fair and open.”
Any lawyers interested in serving as an observer can get in touch with any of the sponsoring organizations to learn more about how to volunteer. (Kevin Scruggs, director of the ABA Criminal Justice Section, is the ABA contact.)