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.

Afternoon al Nashiri Hearing – 4 August 2014 – GITMO – Qifan Wang

Judge Spath is presiding over the al Nashiri USS Cole case.

Judge Spath presides over the al Nashiri USS Cole case.

Lunch 

After the NGO Observers had a quick lunch in the NGO Lounge, we returned to the courtroom for the continuation of the case against al Nashiri, an alleged mastermind of the USS Cole attack off the coast of Yemen that killed 17 U.S. Sailors and injured dozens more.

Judge fails to recuse himself.

Unsurprisingly, the first thing in the afternoon is Judge Spath’s denying the motion of recusal.

How many judges are on the case? Who is in charge?

The court move to motion AE305 dealing with another very strange situation.

Chief Judge Pohl presided over the al Nashiri case from its beginning, until last month when he detailed a successor, Judge Spath, to handle the case.

But Judge Pohl reserved his authority regarding some al Nashiri motions. The result is at this specific time, there are two military judges in charge.

The defense makes a textual interpretation of the Military Commission Act, which consistently use the singular form (‘a military judge’ and then ‘the military judge’). The defense wants Judge Spath to reconsider some prior motions Judge Pohl had ruled upon.

On the other side, the government does not have much trouble with that. The government is arguing that there is no actual overlap between the authority of Judge Pohl and Judge Spath.

Chief Judge Pohl originally presided over al Nashiri case.

Chief Judge Pohl originally presided over al Nashiri case.

Judge Spath asked whether he can issue order in contradiction with Judge Pohl’s former rulings. The answer would be yes. Then it just becomes more confusing since what would be the actual point for Judge Pohl to preserve this authority? The defense labels the potential impact on the court as ‘unlawful influence’, while the government rebuts as there is no prejudice shown.

It is somehow difficult for me to comment on this motion and these arguments. Just like lots of other motions or procedures, this is a unique situation and it’s foreseeably hard to find any reference or precedents. I agree that if any new fact or law occurred, a motion for reconsideration  (more…)

AL NASHIRI HEARINGS – 6 AUGUST 2014 – MARGARET BAUMGARTNER (FT. MEADE)

Quiet morning on at Ft. Meade. Sign in front of the Post Theater, the site of the secure video-link from GTMO

Today was a shortened day.  Hearings ran until the lunch recess.  The hearing after lunch was to be classified and then they would discuss scheduling for the next couple of months.  No more hearings are scheduled for this week.

The Hearings:  Appearance

Mr. Nashiri declined to be in attendance today.  He was present yesterday and on Monday.  The defense went through a procedure to demonstrate that Mr. Nashiri’s absence was voluntary, for the record.  This included having the staff judge advocate at Gitmo testify of the process whereby the accused was advised of his commissions for the day, advised of his rights, executed a voluntary waiver, used an interpreter, etc.  I think it was well established that Mr. Nashiri chose on his own accord to not attend and it was clear from the evidence presented by both parties that it was a voluntary choice.

The Hearings:  Decision on Funding for Defense Contractor

Judge Spath granted the request for 175 more hours of Mr. Assad’s time.  From the arguments made yesterday, I feel this is in line with what was presented by both parties (see yesterday’s post for the details and context).

The Hearings:  Tu Quoque

Tu Quoque (“you also”, in Latin), or as we sometimes say on the homestead “that’s the pot calling the kettle black”, means “a person is guilty of the very thing of which they accuse another”.  This doctrine was argued by the defense in trying to rationalize the alleged (more…)

al Nashiri Hearings begin – August 4th Morning – GITMO – Qifan Wang

al Nashiri, the alleged USS Cole attack mastermind, in the GTMO courtroom

My First GTMO Hearing

This is the very first hearing I’m participating in as an NGO Observer at GTMO. It is for the al Nashiri case against the person charged with being mastermind of the attack on the USS Cole in Yemen in 2000.

Moving to the GTMO Courtroom; Prosecutor Statement

We walked from our tents to the court. After strict security checks, the NGO team entered the gallery. The seats are assigned and we all sit on the left end of the room. It is said the families of the victims are on the left side. While we are waiting for the hearing, we learn that the Chief Prosecutor Brigadier General Mark Martins gave a statement yesterday afternoon. He made some brief remarks about the recent decision by the Court of Appeals for the DC Circuit, al Bahlul v. United States, upholding the conspiracy conviction and vacating the material support for terrorism and solicitation convictions. Also, he mentioned about the upcoming discussions about motions and orders around AE120AA. This is also among the main issues for this week’s hearings.

Inside the Court — The Hearings Begin

Before the hearing starts, the staff in the courtroom check with the interpreters whether the system works. The interpreters are obviously in another room, rather than being present in the courtroom. At about 9 a.m., the hearing starts on time. This is the first time that the Air Force Col. Judge Vance Spath appears for the week. The defendant, Mr. Al Nashiri is sitting in the courtroom, physically close to his learned counsel, Mr. Kammen. There is only one person sitting between them. I’m not sure who this person in the middle is, and suspect that he is the interpreter on the defense team. Mr. al Nashiri is wearing a white T shirt and looks in an (more…)

Arrival at Guantanamo Bay – 3rd August – Qifan Wang

Sign at the GTMO Office of the Military Commissions Expeditionary Legal Complex

Arrival — NGO Observers Meet

Our flight from Andrews Air Force Base was delayed and we finally arrived at Guantanamo Bay around 2:45 p.m. on Sunday.

Soon the NGOs all met and we got familiar with each other and shared some ideas about the upcoming hearings in the al Nashiri case which we will be observing.

Motions of the Week

We have a copy of the docketing order and it lists some motions that will be heard. One of the emotions is about the issue of ex post facto. That is a defendant cannot be charged for behavior that happened before there was a law against it. Crimes cannot be made up and charged after the behavior happens. If the logic stands, all defendant’s conduct shall be barred from prosecution. On the government’s side there may be a necessity argument considering the gravity of the crime, the difficulties for investigation and collection of evidence, and so on.

At this moment I could not predict how the judge would rule or even explain this issue. The only impression I’m having is that it’s another hard decision to be made. We’ll see soon.

 

 

AL NASHIRI HEARINGS – 5 AUGUST 2014 – MARGARET BAUMGARTNER (FT. MEADE)

Ft. Meade Parade Grounds

Ft. Meade Parade Grounds

NGOs in Attendance

Today, I made another effort to speak with those in attendance at the Theatre.  It wasn’t a large crowd.  There was one guy who kept to himself (he left at lunch), the lady who polices the door, the two contractors handling the feed, and the wife of one of the prosecuting attorneys.  I spent some time talking to the wife and found her very nice.  She will be lonely once the trial begins.  The attorneys will not be leaving the base until it is over.  She did not give many thoughts on the hearings other than they have been going on a long time.

The Hearings:  Death Penalty 

Defense filed a motion to compel the procedures on the manner in which the Government intends to put Mr. Nashiri to death if he is found guilty.  Judge Spath mentioned that the timing for this motion is a bit early because if the defendant is acquitted, then this becomes moot and there are other pressing matters to attend to.

Recently, there was an execution that took almost 2 hours to complete in Arizona.  There is debate as to whether this execution was “botched”, resulting in cruel and unusual punishment.  Defense wanted to make sure that Mr. Nashiri would not be put to death in a manner thrown together at the last minute or would be executed in an unreliable method.  Defense also wanted to know the proposed location of said execution.  Mr. Nashiri cannot be moved to U.S. soil (ruled on in a prior hearing that he cannot be moved to the U.S.) and Gitmo does not have the facilities in place (more…)