The first two Georgetown University Law Center students selected as part of a Department of Defense program visited the military commissions and observed pre-trial hearings at Guantanamo Bay in November and December. Additional student trips are planned for the coming months.

Selected through an application process available only to second-year and third-year law students, as well as Master of Law students, Kayleigh Golish (LAW ’15) attended proceedings from Nov. 3 to Nov. 8, which primarily dealt with pre-trial evidentiary motions related to the impending trial of Abd al-Rahim al-Nashiri, a Saudi Arabian citizen accused of orchestrating the bombing of the USS Cole in 2000 before his arrest in 2002.

“The most interesting [motion] to me was that the defense counsel was requesting that the death penalty be taken off the table as a possible punishment for al-Nashiri because of the limitations with accessing classified information,” Golish said. “I thought that was a really interesting conversation that was worth having.”

Shaw Drake (LAW ’15) visited the base from Dec. 14 to Dec. 17 to observe hearings related to the 9/11 case, which includes charges against five members of al-Qaida for orchestrating the deadly attack in New York City and Washington, D.C. While Drake was there, the potential conflict of interest for a lawyer of one of the defendants was dominating the proceedings.

“An FBI investigation targeted one of the members of the defense team,” Drake said. “If your attorney is under investigation by the FBI, that could affect the decisions that they make.”

Another critical motion being considered was the refusal of the defendants to attend meetings with their lawyers because of the presence of women guards in the movement of prisoners.

“The five 9/11 detainees were refusing to go to attorney meetings or court because women were now in positions where they would physically touch them,” Drake said.

After several closed-door sessions with the lawyers that the observers could not view, the judge in the case decided to cancel the hearings, denying Drake the chance to view any proceedings.

“It seems like a calculation was made by the judge: Do we hold the meeting that probably gets us nowhere because the prosecution is not prepared … and in doing so, do we bring beaten up and bloodied defendants into the courtroom because they’ve had to be forcibly removed from their cells and tied down? It’s probably not worth doing that,” Drake said.

The Guantanamo Bay Naval Base was a primary subject in the “torture report” released by the Senate Select Committee on Intelligence in December, which detailed prisoner abuses used to elicit information and confessions from prisoners at the base. Despite the cancellation of the hearings, Drake explained that the defense counsel met with the observers to discuss some of the issues behind the trial, particularly in relation to the torture discussed in the Senate report.

“[Torture] was a dominating discussion topic … It’s pretty clear that the trial is going to have months and months of arguments around that topic,” Drake said. “The defense team has claimed all along that the way their clients were treated will and should impact the reliability of the evidence and the usage of any statements that they’ve made. They alluded in that conversation that what was released in that report is purely the tip of the iceberg.”

Golish echoed Drake, explaining that the question of torture was ever-present in the Guantanamo commissions.

“Someone who’s been subjected to torture, can they give a voluntary confession?” Golish said. “Every defense counsel is going to try to bring those issues to the forefront and try to use them specifically as mitigating factors.”

Both cases are stuck in the pre-trial stage. According to Drake, the defense counsel in the 9/11 case do not expect a trial until 2017, while the al-Nashiri case is projected by some to start later in 2015, though the defense was pessimistic.

“It’s really quite incredible, not in a good sense, how long it takes, because al-Nashiri is facing charges for events that happened in 2000, before 9/11, and he was arrested in 2002. His trial is starting potentially 13 years later. What does that say for fair and speedy trials?” Golish said.

The observer status conferred upon GULC by the Department of Defense primarily applies to non-governmental organizations, though other universities, including Yale University, Indiana University, Seton Hall University and the University of Toledo, have all sent observers to the proceedings as well. GULC’s Center on National Security and the Law Executive Director Nadia Asancheyev (LAW ’06) said that the law center thought the observer status would provide a platform for students to experience the law in practice.

“We have such a depth of expertise on these issues at Georgetown Law … that we could fulfill the Department of Defense’s mission of having observers go and be able to really do a lot with the information that they gathered,” Asancheyev said. “We just saw a natural opportunity to enhance their learning.”

Asancheyev noted that even as three additional trips were pending for January and February, GULC would continue sending observers as long as the program continued.

“When they have a hearing set, it appears that then they go to the observer pool — and we’re in the observer pool — and ask for nominations for people they want to send,” Asancheyev said. “As long as they are continuing to prosecute people at military commissions at Guantanamo, we intend to send representatives as observers.”

Drake pointed to the program as setting the university in a position to interact with important national issues.

“It puts Georgetown in a unique place to be able to engage with major issues that will make headlines over the next few years, and establishing ourselves as a law school that will send qualified and prepared students to engage actively in this observation project is something that will set Georgetown apart,” Drake said.

Golish reflected on her experience, explaining that viewing the trial had given her a nuanced understanding of the issues surrounding the military commissions. As a member of the Journal of National Security Law and Policy, she explained that the organization was planning a symposium to address issues of terrorism trials and would incorporate her experience into the discussion.

“I think there is a lot of stuff that is still unsettled in terms of rights these people have and whether we’re okay with that. We’re a country that believes in laws and adheres to laws and yet, the laws, as they apply to this set of people, who we’re not crazy about, are not clear,” Golish said. “I also went into these proceedings thinking that they were completely unfair. But after going, you realize that people are trying to achieve justice, but the practices haven’t quite caught up with the law and vice versa. And everything surrounding these commissions is very hazy about where the legal lines really are.”

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