Nineteen nongovernmental organizations have been granted “observer status” on an Office of Military Commissions list that defines the coterie of Americans who can travel to Guantanamo Bay, Cuba, and watch the upcoming military commissions hearings. The University of Toledo is on that list. And a 23-year-old UT law student is about to become one of the few Americans who will ever sit in the same room as a Guantanamo detainee. Evan Matheney will be a military commissions hearings observer at the U.S. Naval Base in Guantanamo Bay, Cuba, from June 14-21.
Matheney said he believes he will attend the trial of Khalid Sheikh Mohammed (KSM), who was identified as “the principal architect of the 9/11 attacks” by The 9/11 Commission Report.
“I was super excited when I first found out that I could go because it’s a big honor,” Matheney said. “I view it like going to the Nuremberg Trials after World War II. For the rest of my life I can say that I got to attend the historic 9/11 hearings.”
Matheney said he feels “personally intrigued” by the story of Daniel Pearl, an Israeli-American journalist who was captured by al-Qaida in Pakistan. During a 2007 military hearing, Mohammed stated that he had personally beheaded Pearl five years before.
“KSM is proud, not remorseful. Of all the people in Guantanamo, he deserves to be in there,” Matheney said. “It’s hard to grasp someone being responsible for the deaths of thousands of people.”
Matheney was nominated to be an “observer” at the hearings by his former UT professor, Ben Davis. Davis attended the American Bar Association’s annual meeting in August 2012 where he met U.S. Army Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions.
“I tried to be a straight shooter with him,” Davis said. “I’m just an ordinary citizen who has been looking at this situation and I felt like he should hear someone challenge him on a few things in a heartfelt way.”
Davis said he had “enormous respect” for Martins as a lawyer, but was concerned about the number of legal precedents being determined by allowing the Supreme Court to decide that only certain provisions of the U.S. Constitution apply in Guantanamo.
“I told Gen. Martins that this is a bulls*** process and I don’t want him to get played,” Davis said. “We don’t know where the U.S. Constitution applies, yet these lawyers are citing all these federal and state criminal cases to build their respective cases. Those were all decided within the context of the U.S. Constitution. So are these really precedents or just an informal, interesting thing?”
Following their discussion, Martins told Davis that he was “welcome to come to Gitmo and see the hearings for himself.” Two weeks later, Davis decided to accept Martins’ invitation.
Following Martins’ endorsement, the Office of Military Commissions promptly added UT to the exclusive list of organizations with “observer status” at the hearings. Davis, who could simply always nominate himself as UT’s representative to Guantanamo, has instead sent about 10 of his UT students for a week each.
“This is a learning experience for them,” Davis said. “The defense council and sometimes the prosecution will meet with observers and encourage them to ask any question they want. “That’s an incredible opportunity.”
Linda Amrou, a third-year law student, was the third person from UT to visit Guantanamo Bay via the nomination of Davis. She went for a week in October 2013.
“I’m a Muslim American woman who wears a headscarf, so going down there was particularly important not only for me but for all Muslim Americans,” Amrou said. “We are part of the fabric of this nation so what happened on 9/11 affected us just like it affected your neighbor.”
Amrou said she feels “really excited” for Matheney to discuss what he observes in Guantanamo with the prosecution, defense council and representatives from other nongovernmental organizations.
“Talking to them is single-handedly the best part of the trip,” Amrou said. “These people aren’t a second source of information — they deal with the detainees day in and day out. They told us very bluntly and openly about their experiences and that was extremely important and eye-opening for me.”
Like Davis, Amrou expressed concerns about the legal precedents that are being set every day in Guantanamo and their implications for the future of American law.
“No matter what your politics are, no one can truly understand what’s going on down there unless they’re able to witness it firsthand. We’re callous and removed,” Amrou said. “We know what’s happening on a pretty superficial basis, but because it’s not in our face day to day we don’t understand the impact on our justice system. When we’re there, we can’t deny it.”
Matheney said he and his fellow law students frequently discuss the implications for U.S. law should the 9/11 hearings “translate” into the American court system.
“The scariest thing about Guantanamo Bay is how they’re making up rules of a military tribunal as they go along,” Matheney said. “Lawyers are scared about what the precedents being set mean for all of us here at home.”
Davis said he remembers sitting in the observer box at a trial during his January 2013 trip to Guantanamo. The box’s monitor feed suddenly went blank. Forty seconds later it flashed back on. Sometimes the judge will press a button to delay the box’s monitor so that observers do not hear classified information. However, the judge had not pressed the monitor control button.
“That’s when I realized things are worse than I thought they were,” Davis said. “One of the intelligence agencies has a link to the monitor and they control the censorship on classified information, too. So the military judge really isn’t in charge of his own courtroom. That’s something to think about. Who are the actors off screen and what are their roles in these court proceedings?”
Davis said he remembers sympathizing with the reaction of the judge, who seemed “shocked and angry” that this intervention would happen in a U.S. courtroom.
Like all observers, Matheney will adhere to the daily instructions of a military handler regarding where he is allowed to go, who he is allowed to talk to and what he is allowed to photograph or discuss.
“I’m happy for him because this is such a positive and unique historical experience,” said Kendra Matheney, Evan’s mother. “It seems to encompass everything that he’s interested in — the legal system, human rights and politics. There is that nervous aspect when your kids travel anywhere but it sounds pretty safe to me because he’ll be on a U.S. naval base.”
Matheney said his classmates have told him that Guantanamo is “super Americanized,” complete with an ice cream parlor, shopping center, fast food and a gift shop where you can buy an ‘It doesn’t Gitmo better than this’ T-shirt.
“It’s been described to me as one of the most stark lines between heaven and hell,” Matheney said. “You can look one direction and see a tropical paradise with beautiful beaches and forests. But it’s a harsh dichotomy because 20 feet away is Camp X-Ray, where some of the worst human rights violators have walked.”
Matheney will pay for his transportation to and from Andrews Air Force Base in Maryland where observers fly out together. However, the U.S. Department of Defense will pay for the rest of his trip, including flights. After returning to the United States, Matheney has the option to write a one-credit research paper about some aspect of his experience.
“I want to give it a fair shake,” Matheney said. “I want to give my country the benefit of the doubt. I want to believe we are good people at heart, that we have the world’s best interests at heart and that we are hopefully setting good precedents. “We’ll see.”
