GUANTANAMO BAY TRIP PREPERATION – AL NASHIRI HEARINGS By Chuck Dunlap

I was honored to be selected last week to serve as an observer for the Al Nashiri (USS Cole Bombings) hearings at Guantanamo Bay, Cuba the week of Nov. 3-7. I have previously participated in the Program in International Human Rights Law and its U.S. Military Commission Observation Project at IU McKinney Law School in mid-June, 2014.  At that time, I observed the hearings of Khalid Shaikh Mohammad and the other accused 9-11 co-conspirators via a secured video link at Ft. Meade in Maryland.  This June trip was after an earlier scheduled hearing I was planning on attending was canceled at the last minute due to a schedule change by the presiding judge.  Since then, and based on what has happened to other participants in this program, one thing I fully count on is last minute schedule changes.  For that reason, I’m trying not to get my hopes up to high about observing the hearings until I am actually on the plane headed to Cuba.

Plans for Future Blogging

The overall mission of the IU McKinney School of Law’s Program in International Human Rights Law and the U.S. Military Commission Observation Project is to “Observe, Analyze, Critique, and Publish materials on the hearings.” As I prepare for the trip I will be posting several bog entries about various aspects of this assignment including the preparation process, preliminary research, work on the Fair Trial Manual, and of course the actual hearings.  From what I hear, due to the lack of Wi-Fi and internet access at the base (at least for NGO’s and journalists) much of my reporting of my observations from the actual hearings may be more post-visit than actually during the week of my visit.

Preliminary Process & Logistical Preparation

The actual process to be selected to participate has several stages. Initially, since I previously participated as an observer at Ft. Meade, I had also expressed my interest in attending the hearings in person at Guantanamo Bay.  I was first notified last week about the possibility that I would be able to participate (there were many more steps to complete, some of which are still to come.)  Once I cleared my schedule to ensure I was available for the hearing dates, I received word that the IU Committee had approved my selection.  The next step was for the Pentagon and the Office of Military Commissions to approve me.  Fortunately that step was very quick (within 24 hours of having my name submitted.)  With the notice from the Pentagon that I had been approved came a number of forms to complete and sign with disclaimers, ground rules, and various other procedural information.  Since this program is being run under the auspices of IU, the forms have to also go through the IU legal department review process.

In addition to the procedural process, I have also had to figure out the specific logistics for the trip. The plane to Guantanamo Bay leaves Andrews Air Force Base on Sunday morning Nov. 2 and returns on Saturday afternoon Nov. 8.  Fortunately I have been able to talk to several other participants who have traveled to Guantanamo Bay who have been very helpful in finding out several useful tips like where to stay the night before the flight (Sleep inn & suites, upper Marlboro, Maryland- thanks Jeff Papa), and that even though you are going to Cuba you should make sure to include some warm clothes since they keep the tents where we sleep very cold to keep out the banana rats and other pests (thanks Judge Riley, very good to know).

I will be posting more as I continue to prepare for my trip and hopefully during the trip as well, Wi-Fi willing, and certainly after I return.

Stakeholders may vary across Guantanamo Bay proceedings – Hattie Harman

My upcoming mission to Guantanamo Bay

Late last week I was honored to learn I have been nominated by Indiana’s Military Commission Observation Project (MCOP) and approved by the Office of Military Commissions to travel to Guantanamo Bay to observe the November 17-21 pretrial hearings in the case against Hadi al Iraqi.   I had the good fortune to travel to Fort Meade in April of this year to observe via secure video link a set of hearings in the case against Khalid Shaikh Mohammad (KSM) and his co-conspirators in the planning and execution of the 9/11 attacks.   I am very much looking forward to observing more hearings in person at Guantanamo Bay.

Guantanamo Bay Fair Trial Manual

In preparation for my upcoming trip to GTMO I have begun studying MCOP’s indispensible Guantanamo Bay Fair Trial Manual.  The Fair Trial Manual focuses on assisting observers in assessing whether the rights of all stakeholders in the Military Commission proceedings are adequately protected. And while one frequently thinks of the right to a “fair trial” as belonging only to the accused person, I recognize now that this is too narrow an understanding of the concept. As the Fair Trial Manual makes apparent, a somewhat disparate set of individuals and organizations have an interest in the outcome of Military Commission proceedings, and, concomitantly, in their fairness. Just as in traditional criminal trials, the crime victims and their families have an interest in a fair proceeding with a just outcome. A conviction which is later reversed due to a faulty proceeding serves no one, including (and perhaps especially) the victims.

Charges against Hadi al Iraqi

In reviewing the charges against Hadi al Iraqi (which are detailed here) I found it notable that the bulk of the charges involve Hadi’s alleged actions as an al Qaeda commander in hostilities against U.S. and Coalition forces in Afghanistan, Pakistan, and Iraq after the post-9/11 U.S. action in Afghanistan commenced. Unlike the primarily civilian victims of the 9/11 attacks, most of the direct victims of Hadi’s alleged crimes were military personnel. Thus, it seems the victim stakeholders in Hadi’s proceedings differ in character from those in the KSM proceeding. What, if any, impact that has on the nature of the proceedings themselves or the nature of the stakeholders’ rights is a question I don’t know the answer to. Perhaps more research will shed light on the question.

How Can the President Close Guantanamo Bay? by Clarence B. Leatherbury

Senate Bill 2410 - Carl Levein - To Authorize Military Activities for 2015On June 24, 2007, while on the Presidential campaign trail, Illinois Senator Barack Obama stated to a crowd in Texas, “We’re going to close Guantanamo. And we’re going to restore habeas corpus.” Now President Barack Obama is trying to honor that promise.

One way President Barack Obama could close Guantanamo Bay is by vetoing the annual defense spending bill. The 113th Congress drafted Senate Bill 2410, known as the “Carl Levin National Defense Authorization Act” for Fiscal Year 2015. The National Defense Authorization Act includes a provision which prohibits the President of the United States from transferring the remaining 149 detainees to the U.S.

The provision reads:

SEC. 1031.LIMITATION ON THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NATIONAL STATION, GUANTANAMO BAY, CUBA.
(a) In General- Except as provided in subsection (b), none of the funds authorized to be appropriated by this Act for fiscal year 2015 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who–
(1) is not a United States citizen or a member of the Armed Forces of the United States; and
(2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.
(b) Transfer for Detention and Trial- The Secretary of Defense may transfer a detainee described in subsection (a) to the United States for detention pursuant to the Authorization for Use of Military Force (Public Law 107-40), trial, and incarceration if the Secretary–
(1) determines that the transfer is in the national security interest of the United States;
(2) determines that appropriate actions have been taken, or will be taken, to address any risk to public safety that could arise in connection with detention and trial in the United States; and
(3) notifies the appropriate committees of Congress not later than 30 days before the date of the proposed transfer.

Veto?

If President Barack Obama vetoed the legislation though, Congress could override the veto with a two-thirds vote of both houses, whereupon the legislation would become law.

Signing Statement?

A second option is President Barack Obama could include a signing statement upon the signing of the bill into law. The President’s signing statement could declare that the provision limiting the transfer or release of individuals at Guantanamo is unconstitutional. His administration then could take action to close Guantanamo Bay and remove the remaining detainees to other prison facilities. The website http://www.presidency.ucsb.edu/ described a signing statement as, “a written comment issued by a President at the time of signing legislation. Often signing statements merely comment on the bill signed, saying that it is good legislation or meets some pressing needs. The more controversial statements involve claims by presidents that they believe some part of the legislation is unconstitutional and therefore they intend to ignore it or to implement it only in ways they believe is constitutional.”

Signing statements though have often been criticized by many Constitutional scholars. They argue that the President should sign the bill as presented by Congress, veto the bill, or do nothing. They argue that there is no constitutional provision which empowers the President of the United States to approve or reject which part of the legislation his administration plans to enforce. And they argue that the signing statements which effectively nullify parts of a bill assume the nature of the Line Item Veto, which was declared Unconstitutional in Clinton v. City of New York. \

Pre-Existing Authority?

Others argue that the President already has the authority to close the detention center. On May 23rd, 2013 former Congressman Ron Paul on the Podcast Ron Paul’s America, stated, “I believe the president does have this authority to do it on his own. He’s the commander in chief. He has the authority to move his troops around. . . So I would say if he’s telling us the truth that he wants it closed, just go ahead and do it.”

Conclusion

Currently, there are 149 detainees at Guantanamo Bay. 79 have been approved for transfer to foreign nations, although finding a trustworthy nation to house them is an issue that must be carefully weighed. The U.S. had Abu Bakr Al-Baghdadi in custody, who now heads ISIS, but Al-Baghdadi was later released after being transferred to Iraqi custody. A provision in the National Defense Authorization Act allows them to return to their home countries or to certain other nations willing to receive them. Another 37 detainees been classified as too dangerous to be released, in spite of a lack of evidence to convict them by trial. And 33 are in pretrial hearings or have been designated for prosecution by the military commission.

The White House wants to close Guantanamo Bay, in part, due to the astronomical cost that are associated with running the prison. The prison cost taxpayers 500 million per year to operate. And the White House wants to close the prison because it now it now stands as a symbol for torture, the suspension of habeas corpus, secret renditions, erosion of due process, secrecy, and perpetual war. These negative symbols are a result of indiscretions committed by the US government and closing Guantanamo Bay could be a big step towards ending them.

For more insights, please see this WSJ article: Obama Weighs Options to Close Guantanamo: Any Move to Override Congressional Ban on Bringing Detainees to U.S. Would Spark Fight

Senate Bill & House Bill - Military Authorization

Cancellation of October Hearings and Related Fair Trial Concerns (Luke Purdy)

On September 29 I was notified by the Pentagon that the October hearings for Al Nashiri had been cancelled. Consequently, I was unable to travel to Guantanamo Bay for the hearings scheduled between October 7-10. The Pentagon did not provide an explanation for the cancellation. Al Nashiri’s next court hearing at Guantanamo Bay is not scheduled until the week of November 3rd of this year.

The delay in the case against Al Nashiri raises potential concerns for the defendant’s right to trial without undue delay, as set forth in the International Covenant on Civil and Political Rights (ICCPR), as well as other international human rights documents like the Body of Principles on Detention, and the International Criminal Court Statute. The ICCPR, in Article 14(3)(c), guarantees all persons charged of criminal offenses the right “to be tried without undue delay.” In addition, Article 9(3) states that

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

One should note that Al Nashiri has been detained since November 2002 for his alleged role in the 2000 bombing of the USS Cole, and that charges against him have been pending since 2008, though they were dropped dropped for three years until the Government reinstated them in 2011, the defendant remaining in custody throughout the intervening period.

The fair trials checklist, which I had planned to bring with me to Guantanamo Bay and distribute to observers from various NGOs, lists potential warning signs of undue delay, based on research into case law and secondary sources detailing the ICCPR’s requirements of the right to trial without undue delay. Relevant queries include: whether logistical issues contributed to trial delay, and whether a delay was caused by the judge’s failure to rule on motions in a timely fashion. Granted, I was not present to observe the reasons for the present postponement. The present delay simply raises a concern about whether the Government has granted Al Nashiri his right to have the case against him resolved efficiently.

 Planned Travel to Fort Meade, Maryland for Khalid Shaikh Mohammad Hearings 

Image of Khalid Shaikh Mohammad

Image of Khalid Shaikh Mohammad, accused of involvement in various acts of terrorism, including the 9/11 attacks on the Pentagon and World Trade Center.

Next week I plan to travel to Fort Meade in Maryland to observe a live video feed to Guantanamo Bay for hearings in the U.S Government’s case against Khalid Shaikh Mohammad. Under “enhanced interrogation techniques,” Khalid Shaikh Mohammad confessed to masterminding multiple terrorist acts, including the 9/11 terrorist bombings. He has been in custody since 2003. In February 2008, the U.S. Government charged the defendant with war crimes and murder. If he is convicted of these crimes, Khalid Shaikh Mohammad will face the death penalty.

Assuming the hearings on Khalid Shaikh Mohammad go forward as scheduled, I plan to blog about my observations of the trial. I will also post pictures at the base and updates about the hearing.

Upcoming Trip to Guantanamo Bay for Al Nashiri hearings (Luke Purdy)

On the right, the hole in the side of the U.S.S. Cole that al Nashiri (left) is accused to have planned the bombing of. The U.S. ship was docked in a port in Yemen during the October 2000 attack that killed 17 U.S. sailors and wounded over 30.

On the right, the hole in the side of the U.S.S. Cole that al Nashiri (left) is accused to have planned the bombing of. The U.S. ship was docked in a port in Yemen during the October 2000 attack that killed 17 U.S. sailors and wounded over 30.

During the first week of October 2014, I plan to travel to Guantanamo Bay, Cuba as a representative of the U.S. Military Commission Observation Project (MCOP), which is also known as the Gitmo Observer. While at GTMO, I plan to observe military proceedings in a capital case against Abd al-Rahim al Nashiri, whom the United States Government has accused of planning the bombing of the USS Cole in October 2000, which resulted in the deaths of 17 U.S. sailors.

The U.S. Military Commission Observation Project (MCOP or Gitmo Observer) was established by the IU McKinney Program in International Human Rights Law. MCOP was granted “NGO Observer Status” by the Pentagon in 2014. This means that MCOP representatives may travel to Guantanamo Bay (or view a secure video link at Fort Meade in Maryland) to observe trial procedures at GTMO that are otherwise inaccessible to the public.

As an NGO Observer, MCOP seeks to ensure that fair trial rights are afforded to all stakeholders in the observed proceedings. These stakeholders include the defendant(s), victims and family members of, and the prosecution. Representatives of MCOP will observe, document, critique, and analyze these proceedings with the help of a Fair Trials Manual and Checklist, which can be accessed here.

Photo of me taken during the 2014 summer in Pago Pago, American Samoa, during my IU McKinney Law International Human Rights Law internsip.

Photo of me taken during the 2014 summer in Pago Pago, American Samoa, during my IU McKinney Law International Human Rights Law internsip.

My Interest in the Guantanamo Bay Military Commissions

My interest in MCOP emerged from a variety of sources, including an overseas international human rights internship, classes in law school, and a growing desire to get more international human rights work experience, specifically in the context of military tribunals. (more…)

Hadi al Iraqi’s First Guantanamo Bay Pre-Trial Hearing – Jeff Papa

Jeff Papa at Camp Justice, holding Indiana folder.

Jeff Papa at Guantanamo Bay’s Camp Justice, before hearings opened today in the war crimes case against Hadi al Iraqi.

Hadi al Iraqi was arraigned at Guantanamo Bay on 18 June 2014 for war crimes allegedly perpetrated in Iraq and other countries when he was a senior member of al Qaeda Iraq and liaison with the Taliban.

Hadi’s first pre-trial hearing was set to begin today at 9:00 a.m., but was delayed until 1:30 p.m. The judge noted that in conference the previous afternoon, the defense had asked for a delay until 1:00 for Hadi to meet his new counsel, whom Hadi would have met for the first time.  Defense had then asked for an additional 30 minutes to accommodate prayers.

Hadi

Just before the hearing began, I could see Hadi and his defense team through the soundproof window that separates the inner courtroom from the public gallery, where the NGOs sit in assigned seats. In addition to myself, 8 other NGOs representatives were present for today’s (more…)

Hadi al Iraqi Hearing commences at GTMO – Jeff Papa

Jeff Papa at Camp Justice, holding Indiana folder.

Jeff Papa at Camp Justice, holding folder with an Indiana logo.

Jeff Papa reported that the Hadi al Iraqi hearing commenced today at 1330 (Monday, 15 September 2014). Due to erratic internet connections, he could not send in his commentary on the hearing. He was able to send this photo. He promises more later.

My First Afternoon at Guantanamo Bay (Jeff Papa)

Jeff Papa - At Camp Justice - GTMO - 14 September 2014

“Camp Justice” is the name of the barracks-like Tent City where NGOs are housed at Guantanamo Bay. Immediately to my left, out of the camera’s view, is the court house complex.

  Andrews Air Force Base – Early Sunday Morning

The military instructed us to arrive at Andrews Air Force Base no later than 0630 this morning for our 10 am flight to Guantanamo Bay, Cuba.

There was some confusion since the address given for the Andrews Visitor Center was apparently wrong. Several of the nine Non-Governmental Organization (NGO) representatives traveling with us arrived at the Andrews main gate, and got turned back. One of our escorts arrived at 6:30 and transported us to the air terminal on the base.

Flying to Guantanamo

As those familiar with the GTMO process know, the planes to Guantanamo contain many different categories of participants, including the presiding officers, defense counsel, prosecution, victims’ family members, NGO representatives, and the media. Today was no different. We met several of these people, including Carol Rosenburg of the Miami Herald who routinely covers GITMO proceedings (she mentioned Indiana’s own Justice Steve David, who served here previously).

The flight to Guantanamo was a little over three hours. The weather on arrival was perfect – blue sky and temperatures in the 80s.

This is my bed for the next few days at Guantanamo Bay. They keep the tents very cold to discourage insects, banana rats and iguanas.

This is my bed for the next few days at Guantanamo Bay. They keep the tents very cold to discourage bugs, banana rats and iguanas.

We took a ferry from the airfield across the bay to the main base area and were escorted to our quarters – barracks-like tents kept ice cold to discourage bugs, banana rats and iguanas from intruding.

No more WiFi.

Unfortunately, a change in access now prevents non-military persons (like the NGOs) from accessing WiFi in the area where our tents are. No mainland U.S. wireless carriers function here. We also have no access to Cuban carriers.

We received photo identification badges that give us access to the courtroom. We then visited the Navy Exchange store for supplies. Still no WiFi was available.

We finally found a restaurant with extremely slow WiFi some distance away – but too slow to upload or download much more than email (thus no photos with this posting, at least not today).

front cover - Guantanamo Bay Fair Trial Checklist

Front cover of Guantanamo Bay Fair Trial Checklist. It has been well-received at Guantanamo Bay.

 Sunday Afternoon Business

Prosecution and defense counsel met with the judge this afternoon to review the schedule for this week’s hearing. It is rumored that tomorrow’s hearing may start late as defense counsel is transitioning and the accused, Hadi al Iraqi, has not yet met the incoming counsel.

Guantanamo Bay Fair Trial Checklist a “Must Have”

The newest draft of the Guantanamo Bay Fair Trial Checklist prepared by Professor George Edwards and his law students at the Indiana University McKinney School of Law has been well-received by the other NGO representatives (a very diverse group). I believe the Checklist is quickly becoming the “must have” guide for NGOs observing GITMO proceedings.

NB:  Update just in… Hearings will not begin until 1300 hours tomorrow (Monday afternoon, instead of 9:00 in the morning as scheduled). And a few photos made it through the slow internet connection.

Jeff Papa - Camp Justice Sign - long one -- GTMO -- 14 September 2014

Another view of the front of Camp Justice.

 

Preparing to Travel to Guantanamo Bay (Jeff Papa)

front cover - Guantanamo Bay Fair Trial ChecklistIntroduction

I am scheduled to travel to Guantanamo Bay, Cuba for pre-trial hearings beginning Monday, 15 September 2014. I have reviewed many documents related to the case I will monitor – against alleged senior al Qaeda in Iraq official named Hadi al Iraqi, who is said to have been a liaison with the Taliban. Hadi al Iraqi’s charge sheet is posted here on the Gitmo Observer website, where other basic Military Commission documents can be found.

My role is as an “NGO Observer”, sent to monitor the proceedings and determine for myself whether, based on the law and my observations of facts, I believe that stakeholders are receiving a fair trial. My most important tool for preparing for this mission is the newly launched Guantanamo Bay Fair Trial Checklist, which provides a framework for me to conduct monitoring.

The Guantanamo Bay Fair Trial Checklist

I have read and re-read the Guantanamo Bay Fair Trial Checklist, which is an innovative document created by Professor George Edwards, the Founding Director of the Program in International Human Rights Law (PIHRL) of the Indiana University McKinney School of Law. Edwards is also the founder of The Gitmo Observer – also known as the U.S. Military Commission Observation Project (MCOP) of the PIHRL.

Volume I of the Checklist identifies a list of right for stakeholders during pre-trial hearings. While this document will be further developed by PIHRL students at the McKinney Law School, the current version includes a comprehensive list of rights for victims, victim’s families, the accused, the prosecution, the press, and witnesses. The Checklist is very easy to use, and should be utilized by any observer of commission proceedings, whether they want to quickly learn basic facts or want to study in great detail a particular hearing.

The Checklist contains sources of domestic U.S. and international law for reference, and provides easy to understand, but comprehensive, checklists for each possible right, as well as general background information. If you review available background information about a particular hearing you will monitor, and then reading through this Checklist step by step, you will gain a very deep understanding of the issues involved, as well as the likely legal arguments, strengths and weaknesses of each party’s position.

An Objective / Neutral Source

The Checklist provides an objective, neutral framework for analyzing the commission proceedings. The Checklist will become the standard document for those new to commission observation, as well as for seasoned experts.

Checklist Volume 1

Volume I of the Checklist  covers pre-trial hearing stage issues, as that is the current stage of the most Guantanamo Bay proceedings today. But many of the Checklist considerations are entirely relevant to other phases (pre-hearing, trial & judgment, and post-trial/post-judgment). Future Volumes of the Checklist are planned to cover these remaining phases in a comprehensive manner.

In the 2014 summer, I traveled to Ft. Meade, Maryland to observe a different Military Commission hearing. I did not have the benefit of the Checklist , which had not yet been created. I read many documents for the earlier proceeding. I wish I had had the Checklist then. In preparing for my hearings at Guantanamo Bay next week, I appreciate that the Checklist is well-organized and clarifies the issues in my mind, and provides a very logical flow regarding what issues are likely to arise in a particular proceeding.

This Checklist  will become the standard for reviewing commission proceedings. Following the Checklist through its stages is easy to follow, and ensures that all issues are covered. The references to source law and rights within the document is also extremely helpful.

The full name of the Checklist  is  the Guantanamo Bay Fair Trial Checklist for U.S. Military Commission Participants and Observers: A Guide for Assessing Human Rights Protections for the Prosecution and the Defense, Victims and Victims’ Families, Witnesses, the Press, NGO Observers, and Other Military Commission Stakeholders.

A copy of the current draft of this excellent resource can be found at http://gitmoobserver.com/2014/08/12/guantanamo-bay-fair-trial-checklist-launches/

Indiana University McKinney Law Students Assist Guantanamo Bay Stakeholders

Guantanamo Bay -- Indiana McKinney Law School - The Gitmo Observer - Proposed Rights Project - Autumn 2014 - George Edwards (1)

Handout on Indiana McKinney Law Gitmo Observer Research Project

Indiana McKinney Law Student Guantanamo Bay Gitmo Observer Project

During the Autumn 2014 semester, Indiana University McKinney School of Law students will research domestic and international rights to be afforded to stakeholders in the U.S. Military Commissions being held at Guantanamo Bay, Cuba. The research will be published as part of the Guantanamo Bay Fair Trial Checklist.

Professor George Edwards, who has incorporated this project in his International Criminal Law class stated: “The Indiana McKinney law students in my class will help all Guantanamo Bay stakeholders understand what their rights are. We care about the rights of victims and victims’ families, rights of the prosecution, rights of the media, rights of defense and prosecution, and rights of other stakeholders. International and domestic law provide that all stakeholders are entitled to the right to a fair trial at Guantanamo”.

The project is being conducted by The Gitmo Observer, which is the name given to the Military Commissions Observation Project (MCOP) of the Program in International Human Rights Law (PIHRL) of Indiana University McKinney School of Law.

Guantanamo Bay Fair Trial Checklist

The Gitmo Observer will provide a resource (e.g., The Guantanamo Bay Fair Trial Checklist) to assist all Guantanamo Bay stakeholders, particularly those seeking to ascertain whether fair trial rights are being afforded to all. Gitmo Observer representative travel to Guantanamo Bay will facilitate research and contact with different stakeholders who may use Gitmo Observer materials for informational, (more…)

Charges Against Abd al Hadi al Iraqi (Jeff Papa)

Hadi al Iraqi

Hadi al Iraqi

The Latest Guantanamo Bay Charges

On 18 June 2014, the Military Commissions arraigned Abd al Hadi al Iraqi on a number of charges. Hadi al Iraqi’s first pre-trial (pre-commission) hearings are scheduled to be held at Guantanamo Bay, Cuba 15 – 16 September 2014.

I have been selected to travel to Guantanamo Bay as an NGO Observer for these hearings next month. I will be representing the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law. (We are also known at The Gitmo Observer“).

Charges Against Hadi al Iraqi

Specific allegations against Hadi al-Iraqi  fall within five general charges. These are highlighted and summarized below.

Charge I: Violation of 10 USC 950t(6), Denying Quarter

The government alleges that Al Hadi directed forces under his control in Afghanistan and Pakistan that there should be no survivors allowed and that all hostilities should conclude with no opposing survivors, even if practicable to accept surrender.

Charge II: Violation of 10 USC 950t(4), Attacking Protected Property.

The government alleges that Al Hadi intentionally attacked a medical helicopter, which was clearly marked as medical and protected (more…)

Guantanamo Bay Fair Trial Checklist Launched

The Gitmo Observer has launched a Guantanamo Bay Fair Trial Checklist to help guide those interested in Guantanamo Bay Military Commission pre-trial hearings and trials. It can be used by anyone who seeks to ascertain whether fair trial rights are being afforded to all Military Commission stakeholders, including the defense and prosecution, victims and victims’ families, witnesses, the press, and Non-Governmental Organization (NGO) Observers.

NGO representatives who travel to Guantanamo Bay, Cuba to monitor military commissions may find the Guantanamo Bay Fair Trial Checklist to be a particularly useful tool, as they carry out the remits of their sending organizations.

Professor George Edwards of Indiana University McKinney School of Law founded The Gitmo Observer, and is the principal author of the Guantanamo Bay Fair Trial Checklist.

Professor Edwards said “I hope the Fair Trial Checklist provides a framework for NGO Observers and others who are assessing whether the Guantanamo Bay system meets international and U.S. standards for a fair trial. The Checklist identifies binding rules of international and U.S. law, and presents a series of questions that observers might consider in their fair trial analysis”.

The Guantanamo Bay Fair Trial Checklist was launched on 12 August 2014, from Expeditionary Legal Complex at Guantanamo Bay, Cuba, where Professor Edwards is monitoring pre-trial hearings in the case against Khalid Shaik Mohammed and other alleged masterminds of the September 2001 attacks on the World Trade Center and the Pentagon.

A limited number of copies of the GGuantanamo Bay Fair Trial Checklist are available for distribution in the Guantanamo Bay NGO Internet Lounge. Copies are available for download below at this link:

Click here — Guantanamo Bay Fair Trial Checklist

 

_______

9/11 Hearing Monday 11 August 2014 – Fort Meade (Matt Kubacki)

Be glad this is on a typed blog, no way anyone could read the notes I took from the hearing.

Be glad this is on a typed blog, no way anyone could read the notes I took from the hearing.

At Ft. Meade for a 9-11 case hearing

Yesterday I was able to visit Fort Meade and observe the 9/11 hearings taking place in Guantanamo Bay.  The Judge, Army Colonel James L. Pohl, had decided that the only matter to be heard was an “emergency” motion by the Government on the severance of Ramzi bin al Shibh (“bin al Shibh”) from the other four defendants (including Khalid Shaik Mohammed).  bin al Shibh was the only defendant in the room that morning and the camera only had a quick shot of him at the very beginning of the hearing.  It was interesting to see him sitting there having what looked like a very casual conversation with someone, knowing in my mind that he is facing capital charges.

The hearing opens

The hearing started with Judge Pohl giving a brief synopsis on bin al Shibh and his case, concluding that the court, sua sponte, decided to sever bin al Shibh from the rest without any argument from the Government or Defense (what I took to be a somewhat rare move).  Judge Pohl ended his opening by stating that the hearing would ONLY focus on the severance matters, but that any conversation regarding bin al Shibh’s mental competency should be on procedural matters NOT substantive (reiterating this multiple times).  Judge Pohl then opened the floor to the Government in what was much like an appellate oral argument (due to the fact that both sides did not have an opportunity to brief arguments on the matter).

The government argues

The Government argued that the issue of severance in this setting should be analogized with the Federal Rules which would allow severance if the defendant raises and claims that he is facing unrelated charges from his co-defendants, .  The Government took the time to stress that this is NOT the case with bin al Shibh; He did NOT raise a motion to sever and Government took great measures to NOT bring certain charges in order to maintain a joint trial of all the defendants.

The Government next addressed any concerns of delay if Judge Pohl were to not sever bin al Shibh, specifically any speedy trial concerns, noting that reasonableness is the key factor (as it is with EVERYTHING in criminal law).  The Government started the speedy trial discussion noting that bin al Shibh has not raised any speedy trial concerns, rather it was a separate defendant, and that when we are discussing joint defendant’s the speedy trial clock is “unitary” between them (ie it must be reasonable among all of them).  Simple prejudice, the Government noted, is the last resort for a court to grant severance, due to a preference for joint trials.  The Government argued (per U.S. vs. Vasquez) that the standard and burden for prejudice is very high, requiring compelling prejudice, which places this matter in a unique situation as bin al Shibh has NOT raised any speedy trial concerns (begging the question how he could meet his burden?).  The Government  concluded this discussion that the court should ONLY look at the delays attributed to them and consider whether they are “reasonable” in 1. Length and 2. Reason, and whether 3. The Defendant has asserted this right, and, finally, 4. Whether there is any prejudice to the Defendant’s speedy trial right (compelling prejudice).

Judge Pohl interrupted to make clear that the Government’s position is (which the Government agreed that it was) “We can move along with a joint trial by addressing bin al Shibh’s unique issues first and then move along with the trial.”  The Government noted that supporting Federal case law, though not directly controlling in the Military context, would support this position that the ten-month delay in deciding bin al Shibh’s unique issues is not unreasonable or prejudicial (with caselaw holding that delays of much longer (2 years) are “reasonable” within the speedy trial context), that there is still much discovery to be done, and that not trial date or deadlines for motions have been set.  Because of this, the Government finished, there is not prejudice to bin al Shibh or the defense team, and their actions of not raising these concerns are much more indicative that no prejudice exists.

The defense argues

The Defense took the podium next to address the matters, though much shorter than the Government.  Defense counsel started with his concern that he was not given 14-days to response to the “emergency” motion filed by the Government (noting that Judge Pohl had specifically stated that there would be no “emergency” motions without such response).  Judge Pohl stated that he would allow him the full 14-days to respond, but wanted to know whether he had any position on the matter presently.  The Defense stated that it was difficult for them to have a position, so Judge Pohl posited whether if he were to vacate the severance order today, allow bin al Shibh the full 14-days to fully brief the issue, move on to other matters and then return to the severance issue later would be prejudicial.  The Defense stated that it would be very prejudicial due to the fact that the Judge issued a severance order and then, in a quasi-appeal, decides that it was pseudo-clear error to have done so.

The Defense finished with what I believed to be the reason Judge Pohl decided to NOT have any hearings today (Tuesday August 12): bin al Shibh is in a unique position as it relates to the other defendants with his 292, 909 (mental competency) and 152 (living conditions issue) matters pending.  Specifically, if no severance or should the court wish to wait deciding the matter, these matters need to be cleared up before the court can even consider anything else as bin al Shibh MUST be present at these matters to voice an argument.  It is these upcoming and pending issues that the court MUST consider in deciding whether to grant or deny a severance (arguing that in this context the “severance” matter is much broader than in a Court of Appeals).

Recess

After a brief delay in denying the Government from responding with separate counsel (Gen. Martins attempted to speak), the Judge Pohl concluded that he would not hear matters on Tuesday.

My experience

The entire experience was fantastic, although it was a shame that today’s hearings were cancelled as this was to be my last day.  The proceedings did seem to be “fair” from a purely objective standpoint, granted my view was ONLY on the bin al Shibh severance matters (thus I could see how a trial or other matters might not seem as fair as they should be).  It will be interesting to see how Judge Pohl decides the severance and how the remaining matters with bin al Shibh are address (ie expeditiously or over time).  I hope to be able to go back to Fort Meade or Guantanamo soon to watch move and recommend to anyone interested that they take the time to do so as well.

This will be right after you turn onto Llewellyn Ave.

This will be right after you turn onto Llewellyn Ave.

Ft. Meade logistics

 

To those going to Fort Meade in the future, I recommend finding a hotel near the base and to leave early to get to the base.  The hotel I stayed at was 3 miles awa

ut I was only able to get in through the entrance on Annapolis Rd (175) and Clark Rd.  You will go through a quick ID and vehicle check, then stay on Clark until it T’s into Cooper Rd, Turn left on Cooper until it T’s into Llewellyn Ave., Turn left and the Post Theater will be on your right.

 

Initial Thoughts-Julie Riche

Next week I will have the opportunity to observe some of the hearings for Khalid Shaik Mohammad as well as several co-defendants in their trial for the September 11th attacks. As a law student about to enter my final year of law school, I am interested in observing the hearings and seeing how the law is applied in this situation.

 

Patriotism runs strong in my family and military hometown of Pensacola, Florida. I remember 9-11 as the day the skies were eerily quiet in my hometown, as Pensacola is the home of the Blue Angels. Classic behavior for a military town, my neighborhood gathered together to line the streets with American flags in honor of one of our own, a fallen Marine who died in Iraq in 2005 at just 27 years old. Further, I clerked for a Florida state judge last summer, who impressed on me a greater appreciation for loyalty, devotion, and nationalism. He exemplifies the American spirit of serving one’s country both as a soldier defending America overseas in Kuwait and Iraq and as a legal public servant in the capacity of judge. I am aware that my background and local interactions with the people in my hometown have molded and shaped my perspective.

 

I have found my legal experiences outside the classroom have had a profound and lasting impact on me more than an academic lecture. I look forward to witnessing the hearings and gaining perspective of American jurisprudence.

The Importance of Due Process – 9-11 Case – (Ft. Meade) (Frank Garrett)

My name is Frank Garrett and I am a third-year law student at Indiana University, Robert H. McKinney School of Law. I leave tomorrow morning for Fort Meade, Maryland to attend the 9-11 hearings next week. This will be my first act as a member of the Guantanamo Bay, Cuba U.S. Military Commission Observation Project (“MCOP”).

I’m attending the hearings in order to help ensure that the 9-11 defendants get a fair trial. In my initial post, I’d like to explain why that’s important to me.

My interest in the MCOP stems from reading Boumediene v. Bush, 553 U.S. 723 (2008) in a Federal Courts class last spring. In Boumediene, the Supreme Court held a provision of the Military Commissions Act that stripped federal courts of jurisdiction to hear the habeas corpus petitions of Gitmo detainees unconstitutional. The government argued that the Constitution did not apply at Gitmo, or at least not to non-citizens, because the United States technically did not have sovereignty over Gitmo. When Cuba and the United States entered into a lease agreement in 1903, Cuba retained ultimate sovereignty over Gitmo. However, the United States has had complete  control over Gitmo for over 100 years.  In other words, the government argued in Boumediene that because the United (more…)

Initial Thoughts on Abd al Hadi al Iraqi Hearing (GTMO) – Jeff Papa

Abd al Hadi al Iraqi

Abd al Hadi al Iraqi – The Defendant

In September 2014, I am scheduled to travel to Guantanamo Bay, Cuba to observe proceedings related to charges against Abd al Hadi al Iraqi.  Military Commission charges against Hadi allege that he was a senior member of al Qaeda and liaison to the Taliban and Al Qaeda in Iraq, and that he led insurgency efforts in Afghanistan and Pakistan.

These alleged activities included supporting and directing attacks against U.S. and coalition forces, utilizing illegal means, such as attacks on civilians, using perfidy, and firing on medical personnel during efforts to evacuate casualties. He also stands accusedof denying quarter by directing that coalition forces should not be taken alive.

Following his activities in Afghanistan and Pakistan, he is also alleged to have traveled to Iraq for the purpose of helping to lead al Qaeda in Iraq.  The maximum sentence for these charges, if convicted, could be confinement for life. (Dept. Defense News Release 426-13, 10 June 2013).

A recent article by Carol Rosenberg in the Miami Herald (Iraqi Appears in Guantanamo Court on War Crimes Charges, 18 June 2013) states that Hadi was captured in Turkey in 2006, and was held by the CIA until 2007, when he was transferred to Guantanamo. Rosenberg’s article describes a long career for Hadi, including service in the Iraqi Army during the 1980-88 war with (more…)

INITIAL THOUGHTS – AL NASHIRI – 7 AUGUST 2014 – JASON SPRINKLE (GTMO)

My name is Jason Sprinkle and I will begin my third and final year at the Indiana University Robert H. McKinney School of Law this month. I applied to attend the criminal hearings of Abd al-Rahim al-Nashiri in Guantanamo Bay as a participant in the Military Commission Observation Project (MCOP) in April 2014 but was not selected. I was delighted to be notified that I was selected to attend the hearings this September.

My personal background does not include military service and none of my close relatives have served. It was not until I began law school that I seriously began to consider a legal career with our armed forces. I have participated in initial interviews with the Army, Air Force, Navy, and Marine JAG C0rps for entry into the direct appointment programs of each branch. During my second year of law school, I trained for over six months with the Marine Corps officer candidate pool in Indianapolis. I have never experienced such a challenging and rewarding period of personal growth. I pushed myself to my mental and physical limits and gained a profoundly deep respect for the men and women who serve our country. I eventually obtained a perfect score on the Physical Fitness Test and gained invaluable knowledge and skills. Although I narrowly missed selection for Officer Candidate School this spring, I will continue to pursue a legal career with our armed forces and will submit my applications to the other branches this fall.

My sincere interest in pursuing a long-term career with the JAG Corps stems in part from my commitment to the preservation of human rights. I believe that all participants in our justice system deserve a fair trial, whether that be in civilian or military court. I feel that the JAG officers serving our armed forces are best suited to preserve the integrity of our military justice system for both victims and defendants. I hope that my observation of the proceedings in September will reveal that these ideals remain intact within our military courts.

I am currently traveling out west with family. In fact, I typed this first blog post as I gazed out at a gorgeous sunset here in Glacier National Park. Given my remote location and lack of accessibility to a printer/scanner, I had many difficulties in completing the required forms for both Indiana University and the Military Commission Observation Project (thank goodness the lobby of our lodge here in Montana has free wifi). I fully understand that civilian travel to Guantanamo Bay for such a serious purpose requires the utmost attention to detail for security reasons and I sincerely appreciate the guidance and patience of the Office of Military Commissions  NGO Escort Team.

Immediately after being notified of my selection to attend the hearings of Abd al-Rahim al-Nashiri, I began to conduct light research of the facts surrounding his capture and detention. Before I became involved with the MCOP I was vaguely aware of the defendant’s name and the bombing of the USS Cole in 2000. However, it was not until I began my research that I became aware of the fact that the defendant has been detained since 2002.

I enter this experience with very little knowledge of Guantanamo Bay nor the legal proceedings that occur there. I have several mentors who have served in Guantanamo Bay in both legal and non-legal capacities. However, our discussions of their experiences have never included any specifics of the military justice system or al-Nashiri’s case. Therefore, I will do my very best to observe the proceedings with as little bias as possible. I strive to conduct a thorough and unprejudiced observation of the hearings and I take this responsibility very seriously.

Our unit is scheduled to depart Andrews Air Force Base on the morning of Monday September 7 and return on Saturday September 13. Although it will be exactly one month before I depart, I very much look forward to sharing my future experience here with The Gitmo Observer. Please stay tuned for future photograph and blog postings.

 

CLOSING COMMENTS – Al Nashiri – 7 AUGUST 2014 – MARGARET BAUMGARTNER (FT. MEADE)

Me (Margaret Baumgartner) and one of my favorite members of our armed services.

Me (Margaret Baumgartner) and one of my favorite members of our armed services.

Who Am I & What Did I Experience at Ft. Meade?

To put a face behind the name, I thought I’d include a picture of myself.  That handsome man beside me is my brother, who is part of the reason I’ve become interested in this project.  My other brother is still active duty but I want to preserve some of his anonymity since he is deploying again.  Thus, I didn’t include a picture of him (I’m not slighting him!!!).

With everything I’ve seen this week, I’ve gone through a wide range of emotions.  I wasn’t expecting that to occur.  I would walk into the hearing in the morning, feeling that the process in place was a fair one (I do believe in justice) and then I would leave feeling conflicted.  Nothing is black and white in this process.  For example, I expected the government would be the party slowing the process down to avoid a verdict as they’ve taken this long to bring charges.  Instead, it was the defense filing motion after motion and going off on tangents during arguments.  I also wasn’t sure what I expected in Mr. Nashiri.  From what the contractors said and my observations, he was very respectful (I’ve heard some of the 9-11 defendants are prone to outbursts).  There were no outbursts and his responses to questions were polite.  I did find it easy to keep an open mind throughout the process and I hope that in my posts, I’ve appeared neutral towards all parties and issues.

I have no career experience with international human rights law or criminal procedure.  In fact, with my career, I’ve never seen the inside of a court room (patent cases rarely, if ever, go to trial).  The only exposure I have to criminal procedure are the courses I took in law school (IU-McKinney School of Law, J.D. ’10) with Professor William Marsh.  Professor Marsh would periodically go down to Guantanamo Bay to advise detainees of their rights.  He would come back and detail his experience to us in the classroom.  This mostly included a trip down and his clients refusing to see him.  My interest was piqued by his chronicles (enough that I took two semesters of Criminal Procedure with him!).

Website Resources

The materials provided on this website have been a valuable resource to me.  Having limited knowledge of this area of law, I found myself able to get quickly up to speed.  I specifically like having everything in one place to download.  We were also provided with binders containing everything on the website.  I liked having the motions, conventions, and histories to flip through as I needed reference during the hearings.  If I found anything that might have been lacking, it would be biographies or summaries of the parties on the prosecution and the defense.

Another helpful item was a checklist that serves as a guide on what to look for and comment on during our observations.  I love lists (I get such joy from checking things off or filling out forms….that’s probably why I’m a patent attorney) and the questions in the list helped acquaint me with the defendant in greater detail.  The checklist itself is lengthy and encompasses the entire process.  I found myself flipping around to find questions relevant to the pre-trial process, but it was a fantastic resource.

Thoughts on the Process

Did I witness human rights violations?  Is the process fair?  There is no definitive answer that can be formulated with three observation days and not having access to ALL (including classified) information.  I believe that the length of time that Mr. Nashiri has had to wait to have his day in court would not be stood for if this occurred in a U.S. civilian court.  There would be all kinds of uproar in the media.  Yet, you don’t see headlines drawing attention to this. I also understand that information that is critical to our national security cannot be revealed, but conversely, defense counsel needs to be able to build an informed case.  I feel that this lack of information has contributed to the onslaught of motions and arguments (which is in turn slowing the pace).  They are trying everything they can to get something to stick given their limited resources.

I’m given the appearance that Mr. Nashiri is being treated with dignity during his detainment.  He seemed in good physical health at the trial.  He did not appear to be starving or sleep-deprived.  He seemed to be accorded his rights to attend proceedings.  I was concerned about Mr. Kammen’s comments that they are monitored by video when they meet with Mr. Nashiri.  A comment was also made that they thought the room also had audio surveillance.  A client has a right to attorney-client privilege and it makes me question if Mr. Nashiri is being given this right.  I am satisfied that Mr. Kammen is learned counsel given his experience.  He honestly seems to be giving his client his best effort and he appears genuinely concerned for his client.

Closing Thoughts

I highly encourage anyone who is qualified to attend as a representative to apply.  This program is a necessity to bring awareness to what is going on in Guantanamo Bay.  We need to keep an eye on what happens because it will affect how we are viewed by the rest of the international community.  Around D.C., there are signs posted in the metro that say “If you see something, say something”.  They are for reporting suspicious activity.  I think this phrase is pretty apt here as well.  Get the word out.