Observing Guantánamo’s military commission hearings

On 21 July 2008, the first trial to take place before a military commission convened under the Military Commissions Act of 2006 opened at the US Naval Base in Guantánamo Bay, Cuba.  Matthew Pollard, Amnesty International’s legal advisor, was present to observe the proceedings.

In the first part of a two-part series, he gives a sense of what it was like there and the importance of independent observers attending such proceedings.

Amnesty International has always been denied access to the detainees held at Guantánamo. Does the organization’s access for the purpose of trial observation offer it any glimpses of the detention facility?

The total area occupied by the United States at Guantánamo Bay is quite large, some 116 square kilometres, with a wide variety of functions. The camps where detainees are held are only a small part of the larger base. As NGO observers, we are not permitted to go anywhere near the detention facilities, or any significant military installations.

In short, coming to Guantánamo Bay to observe the military commissions, except to the extent that conditions of detention become an issue during the trial proceedings, does not add to what we already know about conditions from released detainees, lawyers representing detainees, and the authorities themselves.

How easy is it to communicate with the outside world as an observer there?

We pay a weekly fee for wireless internet access, which we are able to use from within the tents. There is also a tent with telephones that can be used with long distance calling cards that function just like the ones you would buy anywhere else.  Civilian mobile phones do not, so far as I am aware, work on the network at the base, though some European phones apparently pick up a signal from Cuban networks on the other side of the fence separating the base from the rest of the island.

As we can’t take anything electronic into the area where hearings take place, and don’t leave that area during the day except for lunch, we generally only get a real opportunity to telephone or email in the evening.

Are you free to move around?

If we want to leave the area immediately around our tents, as NGO observers, we must always travel in a group and always be accompanied by one of the several “minders” assigned to us by the military here. They are members of the military, and one of the three minders must always be with us, 24 hours a day.

During the day, they generally must accompany us in uniform. Even with the minders, there are many places we cannot go. Understandably, there are additional security checks and restrictions when we enter the area where the hearings are actually held. And, as mentioned earlier, we are not allowed to go anywhere near the detention facilities.

Where do you stay?

We spend most of our time in an area called “Camp Justice” – an ironic name if ever there was one – which consists primarily of ordinary semi-permanent air-conditioned military tents, each with six beds, where we sleep and work (and where I am writing this now) as well as a fridge, microwave and so on; tents containing shower, toilet, and laundry facilities; and a media centre located in a hangar where we can observe (but not ask questions at) press conferences, and talk to the media nearby.

From here, we are not far from the buildings where the trials take place, but need to pass through lots of security and be escorted by our military minder to go there.

The other areas we are allowed to see do not look too different from a small town anywhere in the United States – after all the base as a whole is essentially a community for the people who work here – so there are familiar chain restaurants, pubs, recreational facilities, residential neighbourhoods, an outdoor cinema, parks, several small shops and at least one supermarket, and so on.

How do you get there?

The military offers space on some of its flights from Florida to journalists and NGOs. However, the frequency of those flights is limited. Several private companies also offer commercial flights to Guantánamo Bay.  Everyone requires permission from the Department of Defense.

The commercial flights to Guantánamo Bay won’t permit anyone who doesn’t have the necessary documents to board the plane. They leave from Fort Lauderdale airport, just north of Miami, Florida. The flight I took was an older small plane, capable of carrying about 8 passengers.

These flights may include military and civilian personnel who work at the base, lawyers, and NGOs. The flight generally takes between three and four hours, partly due to the fact that the plane cannot enter Cuban airspace and so must take a longer route than would otherwise be necessary.

Can you describe a ‘typical day’ for us?

On a day where a court hearing will take place, we generally get up around 7am, shower and have a coffee and cereal bar in the tent, and are collected by our minder at around 8. We go through the security procedures to the building where the hearings are conducted, usually beginning at 8:30.

Hearings are scheduled to continue until 5pm, with several short breaks and a longer break for lunch, though they often sit later into the evening in order to finish with a witness (so that the length of time he or she is on the island can be minimized). Our minders have to sit with us in the hearings. Sometimes the hearings end early or may not happen at all.

After the hearing is finished, there is normally a press conference in the media centre, where the Chief Defence Counsel and Chief Prosecutor, or their designates, answer questions from the media. NGOs are not allowed to ask questions at the press briefings, though we are able to sit and observe.

Once the press briefing is finished, often around 7:30 or 8pm, we may speak with the print or television media outside the briefing room for anywhere from a few minutes to an hour.

After that, we normally return to the tents and change into more comfortable clothing, and then go to a restaurant for dinner. Again, our minder must accompany us. Finally, we return to our tents to write reports back to our offices and then finally get to bed sometime between 11:30 pm and 1 or 2 in the morning.

How many others are with you?

As I mentioned, the NGO observers generally must always travel as a group. During my time here, I have been with three observers from other organisations. There are also journalists who we see at the hearings and press conferences and from time to time run into elsewhere on the base – their numbers vary.

Sometimes there are only one or two in the room where the hearings take place (though more may be watching via CCTV from the media centre) and only a handful on the island at all – at other times larger crowds of journalists may stay for only a day or two around a significant event.

Why do they allow observers?

You would need to ask the US authorities for a definitive answer, but my understanding is that they believe that allowing observers demonstrates their confidence in the fairness of the procedures. Of course, we do not agree that the procedures are lawful or fair, but being there helps us to document further our concerns.

Are there any key absences? Do you know of any people denied access?

I don’t know if any person or organization who has sought to observe the trials has actually been denied access. Access for witnesses may be a different question, however. At the time of my writing, some problems were anticipated with regard to access to the hearings for certain witnesses the defence counsel wished to call.

For instance, in the trial I am observing, the accused is alleged to have entered into a conspiracy that included high-level al-Qa’ida officials, some of whom are currently being detained in highly restrictive conditions as so-called “high value detainees”.

Normally when these detainees appear in their own proceedings, the observers sit in a sound-proof box and a lengthy time delay is added to what they hear such that audio can be cut if the military judge or national security officer deems it necessary. At the time I left, it remained unclear whether these detainees would be allowed to testify as witnesses in the trial I was observing.

There have also been indications that some other witnesses the defence consider necessary for the defendant’s case, who live in other countries, might not be allowed access to the base, and again, at the time of writing, it is not known whether these people would give testimony by video link or otherwise.