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In rare experience, New England Law student visits Guantanamo as official observer of military commissions

Reports on hearings concerning U.S.S. Cole attack

(Boston, Revised-10/9/13) New England Law | Boston: “Can the U.S. government kill witnesses and then still use their evidence?”  This was among the high-stakes questions raised at Naval Station Guantanamo Bay during a June visit by Abbigail Shirk ’14, who went to “GTMO” in Cuba as an observer of pre-trial military commissions proceedings.

Camp Justice The setting for Guantanamo Bay military commissions hearings.
Shirk represented the National Institute of Military Justice (NIMJ) and reported on the oral arguments and evidentiary hearings concerning Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri, who is charged with multiple crimes, including murder and terrorism, stemming from the 2000 attack on the U.S.S. Cole that killed 17 U.S. sailors and injured dozens of others, and for attacks on other vessels. Shirk is only the second law student to have observed military commission proceedings on behalf of the NIMJ.  
 
“No one answered the defense’s question about killing witnesses,” said Shirk, but that wasn’t surprising given the unique nature of the commissions.  She learned that it was a “groundbreaking case” and that decisions in this case would affect decisions made elsewhere.
Abbigail Shirk '14 Abbigail Shirk '14
 

Establishing precedents in a new trial format

A military commission is a military court of law traditionally used to try law of war offenses. The GTMO hearings are in concert with the Military Commissions Act of 2009, which established procedures for trying individuals accused of hostilities against the U.S. or its coalition partners, or who were part of al Qaeda. While the procedures are based upon those of general courts-martial under the Uniform Code of Military Justice, they are still being refined in trials such as Al-Nashiri’s.

New England Law alumna Susan Crawford ’77, a noted expert on military law, served as convening authority for military commissions from 2007 to 2010. She was responsible for overseeing many aspects of the military commission process, including supervising the Office of Military Commissions and deciding whether to bring GTMO detainees to trial.
 
Shirk observed both defense and prosecutorial strategies live in court. “Both sides really embodied their core litigation strategies, to establish precedent and make this a respectable system that works,” she said. She was impressed by the earnestness of the lead prosecutor, Army Brig. Gen. Mark S. Martins, who thoughtfully answered every question posed by Shirk and her fellow observers in a small group presentation. “He thinks the commissions process is the best way to achieve justice,” Shirk said. Defense counsel Richard Kammen was equally professional and forthcoming in his group meeting, though his sentiments may have been best captured by the kangaroo pin that he wore on his lapel.

An opportunity to witness the law being defined

Shirk’s undergraduate international experiences included studying in South Africa and the Middle East; she was in Jordan when the Arab Spring erupted in 2011. At New England Law she has served as a researcher for Associate Dean Victor Hansen, a former regional defense counsel for the U.S. Army Trial Defense Service and current NIMJ vice president. Hansen knows GTMO from his own visits and encouraged Shirk to serve as an NIMJ observer.
 
Shirk with Camp Justice sign Shirk was only the second law student to observe proceedings on behalf of the National Institute of Military Justice.
Shirk enthusiastically embraced the opportunity. “It’s one thing to read about the news, but I like to see the news,” she said. The opportunity to witness the law being defined was also professionally exciting, she explained.
 
“I felt that this was really big,” she said. “Arguments over whether the Confrontation Clause should apply, how hearsay evidence should be treated, and other questions raised are really important and groundbreaking Constitutional arguments.” Attendees recognized that the presiding judge, Army Colonel James Pohl, could establish ground rules for upcoming trials, including that of accused 9/11 mastermind Khalid Sheikh Mohammed.

A friendly environment, surrounded by barbed wire

Shirk felt at ease despite GTMO’s harsh reputation. The sprawling camp’s detention areas were far away, and an informal intimacy sprang up between prosecution and defense personnel, victims’ families, reporters, and observers. “Everyone was incredibly friendly – I wasn’t terrified or intimidated.”  
 
Proceedings took place in a Sensitive Compartmented Information Facility (SCIF), which resembled an ordinary courtroom. She observed Al-Nashiri in court and was surprised that there wasn’t a commotion when he entered, and that he wasn’t restrained. “I could be in the SCIF and think I was in any other court, then go outside and see the barbed wire.” 

Heated arguments and humor

One key courtroom controversy involved a security breach that compromised the defense counsel’s confidential documents. Defense wanted to stop proceedings until the issue was resolved, but Judge Pohl ruled that they should continue. Another dramatic high point concerned whether Al-Nashiri could have access to a spiral notebook, which, if the wire were removed, could conceivably be turned into a garrote.  

“This was probably one of the more entertaining motions to watch,” said Shirk. “Because of the frustration of the defense counsel, parts of his direct examination were downright comical.”
 
Heated arguments over issues were occasionally lightened by witty courtroom comments.  Shirk noted, “I think they all know the importance of what they are doing, but they also needed to survive it.”


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