Last Hearing Option Cancelled – Listening to Both Sides: First Up the Prosecution – Catherine Lemmer

The NGO observers had a sliver of hope that we would see actual court proceedings when we learned on Sunday that Walter Ruiz, attorney for Mustafa al Hawsawi one of  9-11 detainees, had filed a motion for a hearing to obtain medical care for his client. The motion alleged that Mr. al Hawsawi was thrown to the ground and shackled on December 7 due to a misunderstanding as to whether he was to return to his cell or to the recreation area. However the Judge (Army Col. James L. Pohl) denied the request. The next hearings for the 9-11 detainees are docketed for February 9.

Given the lack of court proceedings, the NGO observers pushed for meetings with the defense and prosecution teams. The meeting were scheduled around the various 802 conferences and client meetings.

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Brigadier General Mark S. Martins

We met first with Brigadier General Mark S. Martins, the chief prosecutor, and three members of his team. Prior to the meeting we were provided with his 13 December 2014 prepared remarks. The prepared remarks addressed the release of the Torture Report. It was Brigadier General Martins’ opinion that the Torture Report will not disrupt or derail the Military Commission process. Rather, the release of previously classified information will speed discovery for the defense. He reiterated in his prepared remarks that the prosecution will not introduce as evidence statements obtained through torture.

Brigadier General Martins began the session by introducing his staff and referring us to his prepared comments. He noted that he would not discuss the female guard issue nor the FBI conflict-of-interest issue; the latter because he had walled himself off from this issue. He then went on to answer our questions and provide information.

As in his prepared remarks, Brigadier General Martins discussed the prosecutions’s intent not to use evidence obtained through torture. He noted that it is imperative that the people see the government’s case. This is not possible if the prosecution uses classified information. Ironically, his intent doesn’t seem to be shared by some other powers in the government — for example, those entities fighting the release of the remaining torture materials.

In response to one NGO observer’s frustration with the length of time it is taking to get these matters to trial, he likewise shared his frustration with the length of the process. He noted that he feels the frustration of the families of the victims every day. He assured the NGO observers that he was in it for however long it takes. He reassured us that the government was not going to lose interest in providing a sustainable and supportable process. I asked him if he had considered not requesting the death penalty for the 9-11 detainees. He responded that he is guided by the realistic prospect of success when he makes his prosecutorial decisions.

Brigadier General Martins also stressed the importance of the NGO observer. He noted that the observers are indispensable to the wider public and serve as checkers and watchers on the government. (I asked at a later time (1), “why,” given the his view of the importance of transparency, that there were no additional viewing sites in the US? I was told it was because of cost and that there was only one other additional site under discussion — a site in Northern California. Viewing sites are based on the location of victim’s families. Currently the feeds are costly because they are delivered via satellite; perhaps the costs will go down when the $40 million underwater fiber optic cable that is being laid from South Florida is in place.)

Brigadier General Martins is a Rhodes Scholar and Harvard Law School graduate. He appears to be a thoughtful,  resolute, well-read, and highly educated lawyer. It is obvious that he is in an untenable position. He represents a government that is demanding each member of the defense team sign a Memorandum of Understanding(2) before it releases information vital to the defense; a government that resists the release of information that will fully disclose the rendition, detention, and torture of countless individuals; and a government that has no qualms about recording privileged attorney-client meetings; attempting to flip defense team members into government informants; and setting up road blocks that derail the process (e.g., the female guard issue).

At the end, I had a chance to say thank you to Brigadier General Martins for his information session with the NGO observers. I also thanked him for his willingness to take on the job of “Chief Prosecutor.” It is my opinion that it is imperative that we have a process; at this point, it has been decided that the process that will determine the guilt or innocence of, and if necessary the sentences to be imposed on, the Guantanamo Bay detainees is the Military Commission process. To have a genuine process all those involved must have integrity and a dedication to the rule of law even if units of our government fail this test. Brigadier General Martins impressed me as a person of integrity and dedication and one who will perhaps fight as hard as the defense teams for a fair and open process even if it means opposing the very government he represents.

The challenge for NGO observers is that we often only get one official session. We don’t get a chance to come back and ask follow-up questions once we have vetted the information with other sources.(3) We got a different view of many of the issues we discussed with Brigadier General Martins when we had our meeting with the defense teams (see next post); it would have been helpful to be able to cross-check the information with another session.

(1) I actually asked him while the plane was loading — I was sitting next to Carol Rosenberg and she was asking him questions so I just chimed in. It is one of the oddities of the situation — the defense, prosecution, judiciary, observers, media and others are often in each other’s company.

(2)Members of defense teams are being asked to sign a Memorandum of Understanding pursuant to which the lawyer agrees not to disclose any confidential information provided to the defense team and to prevent the client from disclosing the confidential information. Only one defense team has signed the agreement to date; the rest have declined.

(3)Brigadier General Martins provided, without prompting, data to refute the defense’s statements that they are often denied access to their clients. His data showed the number of meetings requested and the number of meeting requests granted. As in all cases, statistics are only as good as the question asked. In this case, the question is not how many visit requests are approved, the question is how many of the approved meetings actually take place. Recently the use of female guards has prevented approved meetings from happening. As an NGO Observer one must always weigh each piece of evidence from multiple perspectives.

An illusion of transparency

 Camp X-Ray Experience

The cancellation of today’s hearings left the NGO observers at loose ends.  A few of us asked if we were permitted to visit Camp X-Ray. A van and driver were arranged and we headed out late morning for the 15-minute drive to the no-longer used facility.

There is a strange juxtaposition of life here on the base. On our way to Camp X-ray we drove through military family housing–many of the houses are decorated with festive Christmas decorations–and just as we made the last turn out of the neighborhood there was a woman walking her dog and another woman jogging while pushing children in a double stroller. We could have been in any middle class suburb in America!

Within minutes of the neighborhood we pulled over & viewed Camp X-Ray. 

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Camp X-Ray (detainees were held here from January to April 2002)

Camp X-Ray was the temporary detention facility at Guantanamo Bay. The first detainees arrived in January 2002. In April 2002 Camp X-Ray was closed and the detainees transferred to the permanent prison camp–Camp Delta.  It is estimated that Camp X-Ray housed 800 men and teens during its use. Carol Rosenberg (Miami Herald) reported that in 2009 the FBI photographed and documented the camp.  U.S. courts have ordered the preservation of Camp X-Ray facilities where detainees were held at the request of defense lawyers who want it kept intact as a crime scene.

Camp X-Ray, Guantanamo Bay

Camp X-Ray, Guantanamo Bay

Although media representatives and others have toured Camp X-Ray, we were only permitted to view it from the road. Similarly NGO observers are not given access to the detainee facilities and other facilities used by the military commission process. The government challenges the credibility of the NGO observers by limiting our access while demanding that we report that all is well here with the Military Commissions in Guantanamo Bay.

 

9-11 Hearings Halted Due to Female Guard Issue – Catherine Lemmer

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9-11  Parties Court Seating Chart

I won’t be using this seating chart this morning.

Despite closed-door sessions with Judge Pohl on Sunday (14 December 2014), the prosecution and defense did not reach agreement on the female guard issue. A detainee is physically touched by the guards when moved from his cell; for example, for court appearances and attorney meetings. Woman constitute nearly 25% of the guard population at Camp 7 where the high level detainees are imprisoned and are integrated into the details. The detainees object on religious grounds to physical contact with women. If women are in the transfer detail, the detainees refuse to leave their cells; even if it means foregoing attorney meetings. If a detainee refuses to leave his cell, a forced cell extraction occurs (“FCE”). The FCE has been described as a tackle-and-shackle procedure.

All detainees were ordered to appear in court this morning which could have prompted FCEs. In order to avoid FCEs, Judge Pohl cancelled today’s hearings.

The NGO observers are awaiting a briefing from Chief Prosecutor Mark Martins later this afternoon. There is also the possibility of a briefing from the defense teams. I will post updates as soon as I have any news.

Addendum: The continued use of female guards despite the religious concerns of the detainees is perplexing. Other accommodations have been made for the detainees. For example, they are allowed to bring their prayer rugs into the courtroom; action in the courtroom stops to allow the detainees to pray; the direction of Mecca is marked on a wall in the courtroom; and dietary restrictions are taken into account when preparing their meals. Explanations as to why all male guard transfer teams are being used include the following (paraphrased): (i) the armed forces are an equal opportunity employer and women are being integrated; (ii) the judge does not manage or wish to manage the detainee facilities; (iii) 25% of the guard force here is women and it is not possible to take them out of the rotation.  More to come on this.

Guantanamo Bay – Arrival and Defense Counsel – Catherine Lemmer

Flight to Guantanamo

“What’s the movie on this flight?” One hardly expects that to be the first question one hears on a chartered Miami International Air flight bound for the Guantanamo Bay 9-11 hearings. One also doesn’t expect to engage in a humorous movie selection process with members of the defense teams, NGO observers, and a flight attendant – in the end, the “chick flick” was vetoed and “Dawn of the Planet of the Apes” went into the play slot.

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Tent 9A – My Home Sweet Home for the next few days.

The Saturday flight from Andrews Air Force Base and the ferry ride to the island were uneventful. I sat in the back of the plane with the media and other NGO observers.

Arrival

Upon arrival, the NGO observers were directed to our tents in Camp Justice, taken to get our base badges, and given a brief NGO orientation about the Guantanamo Naval Base.  What is easy to forget is that the Guantanamo Naval Base has been in existence and operating since 1898; it is only since 2002 that it has served as detention camp for alleged enemy combatants.

Defense Bar-B-Q — Meeting lawyers, press, and others. The week’s agenda.

On Saturday evening the NGO observers were invited to a BBQ by the defense team for Ammar al Baluchi.  Carol Rosenberg and members from the other defense teams attended as well.

James Connell, Learned Counsel for Mr. al Baluchi, gave a lengthy briefing on motions set to be heard Monday and Tuesday. In addition to the conflict of interest matters (see my earlier post), the issue of the use of female guards is occupying a fair amount of time. At issue is whether female guards should be able to physically touch the prisoners as they are being prepared for transfer from their cells. The prisoners object on religious grounds to being touched by the female guards. They have forgone meetings with their attorneys if female guards were part of the rotation that would move them from their cells to the meeting.

The Senate Torture Report

The Torture Report was a big topic of the evening. There was much speculation that the hearings will be reduced to just Monday as both the defense and prosecutorial teams seek to better understand how to deal with the impact of the report. One defense attorney noted that his client is deeply humiliated and embarrassed by the disclosures in the Torture Report. His client refuses to even discuss how the Torture Report should or could be part of his defense strategy.

My role as an NGO Observer

As an NGO observer, it is my job to observe, analyze, and assess whether the defendants are being afforded a fair trail. Given that the defense counsel are military personnel I’ve wondered how zealous they were in the pursuit of justice on behalf of their clients. I had a long conversation with Lt. Col. Sterling Thomas, lead counsel for Mr. al Baluchi, and learned that the men and women on the defense teams are dedicated and passionate about defending their clients. In his case, the defense of Mr. al Baluchi is the only matter he is working on (outside of some administrative duties). The defense attorneys are often outraged and frustrated by the ever shifting ground of the military commission process. No stakeholder need have a concern from a fair trial perspective that the defendants are not afforded talented, compassionate, driven, hard-working lawyers who are interested in justice for their clients.

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Entrance to Camp Justice – Guantanamo Bay Naval Base

Today — Sunday

Today, Sunday, we will get a tour of the courtroom. Unfortunately, no pictures are allowed, but I’ll post on that experience later this evening.

I also plan to talk more with my fellow NGO observers and get their impressions and comments on the Guantanamo Bay Fair Trial Manual.

 

Andrews Air Force Base – Ready to Depart – Catherine Lemmer

Boarding Pass - Andrews to GTMO - Catherine Lemmer - 12 December 2014

My Boarding Pass for the Andrews to Guantanamo Bay flight.

Sunrise at Andrews Air Force Base

Arrived at 5:30 am and waited in the very dark parking lot at Andrews Air Force Base until our escort arrived and took us to the terminal. Stood in line, checked my bag, and got my ticket. It is a little surreal – there are a few military personnel and families awaiting transfers but most everyone in the departure lounge is headed to Guantanamo Bay – yet there are periodic announcements about what to do if there is unattended baggage and actions to take in the event of an active shooter situation.

Now just hanging out in the departures lounge and talking with a wide variety of people. I’ve chatted with a reporter from The Daily Beast, a local independent D.C. newspaper, and two reporters from Germany. I asked the two reporters from Germany what impact, if any, the release of the Torture Report had in Germany. It is safe to say that the reputation of the United States has suffered immensely, especially in Germany where the Torture Report follows closely on the NSA “listening” scandal.

Coffee & Guantanamo Bay Fair Trial Manual Distribution

I’ve met a few of the other NGO observers and now am off to find a coffee and introduce myself to others. We have got a few hours before departure!

High on my priority list is to distribute copies of our Guantanamo Bay Fair Trial Manual to the other NGO representatives. I hope to get good feedback from them as to how to improve the Manual for future Observers and others interested in exploring the issue of fair trials at Guantanamo Bay.

Preparing for Guantanamo Bay 9-11 Hearings – Catherine Lemmer

Our plane to Guantanamo Bay is scheduled to depart from Andrews Air Force Base on Saturday morning, 13 December 2014.

Our plane to Guantanamo Bay is scheduled to depart from Andrews Air Force Base on Saturday morning, 13 December 2014.

Panic like a 1st year law student or new law firm associate!

It is easy for an Guantanamo Bay fair trial NGO observer to experience the same sort of panic that a first year law firm associate experiences when thrown into a complex litigation matter. I’ve spent a fair bit of time over the last few days reading and re-reading the motions to be heard next week when I am in Guantanamo Bay. Despite my homework, I am not sure I fully comprehend the significance of many of the details.

 

Blog posts – to a fair trial – Guantanamo Bay Fair Trial Manual.

Generally, my blog posts during my Guantanamo Bay mission will not focus so much on the substance of the legal arguments related to the case. Instead, they will focus on right to a fair trial issues, as discussed in the Guantanamo Bay Fair Trial Manual. However, on the eve of my departure, I wanted to post on the defendants in the hearings next week, the pre-trial motions scheduled, and on the odd assortment of categories of lawyers expected to be present to represent the defendants and to represent the U.S.

The hearings for 15 – 16 December 2014

Five motions are scheduled to be heard during two days of hearings at Guantanamo Bay in the case against 5 alleged masterminds of the World Trade Center / Pentagon attacks on 9-11. All five defendants, Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak bin ‘Atash, Ramzi bin al Shibh, Ammar al Baluchi (aka Ali Abdul Aziz Ali), Mustafa Ahmed Adam al Hawsawi, and their legal defense teams are expected to be present for the hearings. Also expected to be present is Independent Counsel appointed for Mr. bin al Shibh.

The regular prosecutors in the case will likely not be in the courtroom during at least some of the hearings, but the U.S. will be represented by a “Special Review Team” that was called in to represent the U.S. next week because of conflict of interest issues related to due to allegations related to the FBI allegedly infiltrating defense teams on the case.

Conflict of interest

Earlier this year, it was revealed that members of the 9-11 defense teams had been approached by the FBI to act as informants. This raised issues of conflict of interest for defense team members. Defense lawyers should be loyal to their clients. If the FBI is investigating the defense team, and you as a defense lawyer might be a target of that investigation, might you devote more energy to protecting your own interests than protecting the interests of your client? Does the FBI investigation of your defense team cause the defendant’s (your client’s) legal position to be compromised? Has the attorney / client relationship been damaged irreparably? In April 2014, an independent Special Trial Counsel / Special Review Team (Department of Justice prosecutors) was appointed and tasked with investigating the FBI’s actions with respect to the defense teams.

The Military Commission later concluded that there was no actual or potential conflict with respect to 4 of the 5 five defense teams. The Military Commission concluded that there may be an actual or potential conflict with respect to the legal team representing Defendant Ramzi bin al Shibh.

In August, Judge Pohl ordered Independent Counsel for Mr. bin al Shibh. Lt Col Julie Pitvorek, USAF was then assigned as Independent Counsel for Mr. bin al Shibh.

Lt Col Pitvorek is expected to be present at the December 15-16 hearings, along with Mr. Harrington and LCDR Bogucki, Mr. bin al Shibh’s present counsel.

Summary of Motions Scheduled for 15 – 16 December 

The five motions are described briefly below. The brevity of the summaries is not intended to negate the significance of these matters:

(1)   AE292RR Motion of Reconsideration of AE 292QQ (Order):

The Special Trial Counsel is requesting that the Military Commission reconsider its decision that (i) there may be a potential conflict within Mr. bin al Shibh’s defense team and (ii) the appointment of independent counsel are necessary to determine whether an actual or potential conflict exists with respect to his defense team.

(2)  AE 292SS Joint Motion for Reconsideration of AEQQ (Order): Defense counsel for Mr. Mohammad and Mr. al Baluchi are requesting the Military Commission reconsider its decision to not appoint independent counsel for these two defendants to determine whether a conflict of interest exists with their current legal defense teams.

(3)  AE 292TT Motion of Special Trial Counsel for Clarification of AE 292QQ (Order):

The Special Trial Counsel seeks clarification about what the Military Commission ordered with respect to the FBI’s storage and retention of information related to their investigation of Mr. bin al Shibh’s defense team.

(4)  AE 292VV Motion to Compel Discovery Related to Interference with Defense Function by the United States:

All five defense teams request the Military Commission to compel the Prosecution’s Special Trial Counsel to provide the evidence related to the FBI’s investigations of the defense teams.

(5)  AE 292YY Motion for Appropriate Relief-Disclosure by Military Judge Whether He has Acquired Information Relating to the Case from an Undisclosed Source and the Details of the Information:

All five defense teams request that the Military Commission disclose whether the Military Judge has received additional information regarding the FBI/conflict of interest matter and if he has received such information, provide that information to defense counsel.

My homework — Focus on Right to a Fair Trial Issues

I have done my homework, received helpful advice and insights from MCOP Observers Hattie Harman and Chuck Dunlap, and much direction and guidance from Professor George Edwards. I am excited to start the journey to Guantanamo Bay tomorrow morning when I head to Andrews Air Force base at 4:50 a.m.

My upcoming blog posts will not focus so much on the substance of the legal arguments related to the case as my role is one of observing, analyzing, reporting on the right to a fair trial issues, as discussed in the Guantanamo Bay Fair Trial Manual.

Senate Torture Report on CIA’s Detention & Interrogation Program – Impact on Next Week’s 9-11 Hearings – Catherine Lemmer

The moment I saw the CNN feed with respect to the release of the 525-page Executive Summary of the Committee Study of the CIA’s Detention & Interrogation Program by the Senate Select Committee on Intelligence come across my monitor this morning I have been considering the impact of its contents on the upcoming December 15th and 16th 9-11 hearings at Guantanamo Bay I am scheduled to attend. Throughout the day I listened to reports and interviews of commentators and others. If there is any good news in this matter, it perhaps comes in the words of Senator Dianne Feinstein, chair of the Senate Select Committee on Intelligence, when in response to a question by CNN’s Wolf Blitzer she said: “I want the facts to be there so this never happens again.”

The Committee made 20 findings and conclusions; which are listed in the first 19 pages of the report:

  1. The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees.
  2. The CIA’s justification for the use of  its enhanced interrogation techniques rested on inaccurate claims of their effectiveness.
  3. The interrogations of CIA detainees were brutal and far worse than the CIA represented to policymakers and others.
  4. The conditions of confinement for CIA detainees were harsher than the CIA had represented to policymakers and others.
  5. The CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis of the CIA’s Detention and Interrogation Program.
  6. The CIA has actively avoided or impeded congressional oversight of the program. Front Cover - CIA Detention & Interrogation - Senate Select Committee on Intelligence - Executive Summary - Released 9 December 2014 - Redacted
  7. The CIA impeded effective White House oversight and decision-making.
  8. The CIA’s operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch agencies.
  9. The CIA impeded oversight by the CIA’s Office of Inspector General.
  10. The CIA coordinated the release of classified information to the media, including inaccurate information concerning the effectiveness of the CIA’s enhanced interrogation techniques.
  11. The CIA was unprepared as it began operating its Detention and Interrogation Program more than six months after being granted detention authorities.
  12. The CIA’s management and operation of its Detention and Interrogation Program was deeply flawed throughout the program’s duration, particularly so in 2002 and early 2003.
  13. Two contract psychologists devised the CIA’s enhanced interrogation techniques and played a central role in the operation, assessments, and management of the CIA’s Detention and Interrogation Program. By 2005, the CIA had overwhelmingly outsourced operations related to the program.
  14. CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorized by CIA Headquarters.
  15. The CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained, and held individuals who did not meet the legal standard for detention. The CIA’s claims about the number of detainees held and subjected to its enhanced interrogation techniques were inaccurate.
  16. The CIA failed to adequately evaluate the effectiveness of its enhanced interrogation techniques.
  17. The CIA rarely reprimanded or held personnel accountable for serious and significant violations, inappropriate activities, and systemic and individual management failures.
  18. The CIA marginalized and ignored numerous internal critiques, criticisms, and objections concerning the operation and management of the CIA’s Detention and Interrogation Program.
  19. The CIA’s Detention and Interrogation Program was inherently unsustainable and had effectively ended by 2006 due to its unauthorized press disclosures, reduced cooperation from other nations, and legal and oversight concerns.
  20. The CIA’s Detention and Interrogation Program damaged the United States’ standing in the world, and resulted in other significant monetary and non-monetary costs.

In the Forward to the Committee Study, Senator Dianne Feinstein writes that it is her personal opinion that “CIA detainees were tortured . . . and that the conditions of confinement and the use of authorized and unauthorized interrogation and conditioning techniques were cruel, inhuman, and degrading.” She urges Americans to remember the context (those days following September 11th)  in which the CIA’s Detention and Interrogation Program was created; not as an excuse or rationale for the actions of the CIA, “but rather as a warning for the future.”  Senator Feinstein’s advice seems particularly appropriate with the growing threat of the Islamic State of Iraq and Syria (ISIL or ISIS) and its ongoing horrific and public treatment of those it deems to be its enemies.

I suspect that people at Guantanamo Bay will be discussing the Report when I am there next week. I will post on what I learn from the discussions. The full report is below:

CIA Detention & Interrogation Report Released – Details Torture of GTMO Prisoners

Today the Senate released the Executive Summary of its report that details torture of Guantanamo Bay prisoners, many of whom were held in secret prisons spread around the globe and subjected to treatment deemed “harsh” and “brutal” and that rises to the level of torture.

The report is titled the “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program,” and resulted from a 5-year study conducted by the U.S. Senate’s Select Committee on Intelligence.

The 525-page Executive Summary, which is heavily redacted, can be found here: CIA Detention & Interrogation Senate Report – 9 December 2014

Minutes after the Executive Summary was released, defense counsel in the 9-11 case, that is pending at Guantanamo Bay, circulated an e-mail that stated “The government has excluded from the report the identities of the torturers, the locations of the torture, and many other facts no doubt contained in the remaining 6,125 pages of the report.”

Indiana Law Affiliate Traveling to GTMO this weekend

Ms. Catherine Lemmer, an international librarian at the Indiana University McKinney School of Law, is scheduled to travel to Guantanamo Bay, Cuba this weekend for hearings in the 9-11 case. Ms. Lemmer, who has been instrumental in the Guantanamo Bay Fair Trial Manual and in building the The Gitmo Observer website and blog, will be posting her impressions of the “Torture Report” soon.

Preparing for the 9-11 Guantanamo Bay Hearings – Catherine Lemmer

My work with the The Gitmo Observer

I have been involved with the U.S. Military Commission Observation Project (“MCOP”) (also known as The Gitmo Observer) since mid-spring 2014.  In my position as a law librarian at the Indiana University Robert H. McKinney School of Law I have worked on developing and maintaining The GITMO Observer site and providing research support for the Guantanamo Bay Fair Trial Observation Manual.  Thus I am honored and excited to have been selected to serve as an NGO observer at the upcoming military commission hearings on December 15 and 16 at Guantanamo Bay.

My work in South Africa

I begin assisting Professor George Edwards and the MCOP upon my return from South Africa in April 2014. I spent six months (September 2013 – April 2014) in Johannesburg as a Senior Fellow at the Legal Resources Centre of South Africa (LRC). The LRC is South Africa’s largest and oldest national public interest law organization. Established in 1979, the LRC lawyers challenged apartheid and played important roles in drafting the South African Constitution. In 1994, Nelson Mandela appointed LRC’s founder, Arthur Chaskalson, to serve as the first President of South Africa’s Constitutional Court. The LRC advances research and provides free legal services to the poor and vulnerable in the areas of land and housing rights, children’s rights and education, environmental justice, HIV/AIDS, health and social services, refugee matters, and women’s equality.

George Bizos 85th Birthday 010During my time with the LRC, I enjoyed many a brown bag lunch with George Bizos, an LRC lawyer. An internationally renowned South African human rights lawyer, George Bizos is credited with crafting the three words in Nelson Mandela’s statement during his 1964 treason trial which resulted in the imposition of life imprisonment rather than the death sentence. Upon learning that an American sat across the tea table from him the first time we met, George looked at me and said, “I have sympathy with his position but your President Obama has to shut down Guantanamo Bay.”  The topic of Guantanamo Bay would come up often during the six months I spent at the LRC and my knowledge of what was happening and why at Guantanamo Bay would prove woeful in comparison to that of George Bizos. The MCOP provided a fortuitous opportunity to learn more about the military commission process at Guantanamo Bay upon my return to the States.

The 9-11 case / Khalid Shaik Mohammed case that I will monitor next week

I will be observing hearings with respect to the five 9-11 defendants: Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi.

Earlier this week Professor Edwards was able to confirm that the hearings will involve matters of guard gender, the FBI probe/conflict of counsel, and the hearing schedule for 2015.

My preparation for the hearings

Even though I have been involved with the MCOP project, I had and still have lots of preparation to do. I’ve reread parts of the Guantanamo Bay Fair Trial Observation Manual to better understand my obligations to observe and analyze the proceedings. I am also reading the many documents related to this matter that are hosted on the U.S. Office of Military Commissions website. This is a complex case with five defendants and five separate defense teams.  As a result, I have also been reading biographical information on the Human Rights Watch and other sites to help me identify and keep separate each of the defendants. Later this week I am meeting with two other observers, Hattie Harmon and Chuck Dunlap, who have recently observed proceedings at Guantanamo Bay for advice and information.

Lecture by Gitmo Defense Counsel – Rick Kammen

I recently attended a lecture by Rick Kammen, the lead lawyer for al Nashiri  in the USS Cole case. His presentation focused on the many systemic problems of the Guantanamo Bay military commissions. What was readily apparent from his presentation is that Americans as a whole don’t pay much attention to the activities of the military commissions. In addition to its critically important work to ensure fair and transparent trials for all the stakeholders, MCOP is equally important in that it offers opportunities for many of us to become involved and expand awareness in others.

Guantanamo Bay Fair Trial Manual “required reading for anyone who goes to Guantanamo Bay to observe”

The Gitmo Observer has shared the Guantanamo Bay Fair Trial Manual with many NGO Observers and others who have traveled to Guantanamo Bay, Cuba or Ft. Meade, Maryland to monitor U.S. Military Commission hearings. We have also shared the Manual with many others who may or may not have involvement with the Guantanamo Bay proceedings. Comments returned to us on the Manual have been generally very favorable, constructive, helpful and supportive.

From time to time, the Gitmo Observer will post some of these comments on our website.

Here’s a comment that came in today from an Observer who was recently in Guantanamo Bay Fair Trial Manual -- 11 November 2014 - First PageGuantanamo Bay to monitor hearings:

“While I was there [at Guantanamo Bay last week] I was given a copy of the Guantanamo Bay Fair Trial Manual for U.S. Military Commissions.  I read it cover to cover.  This is simply required reading for anyone who goes [to Guantanamo Bay] to observe.  Thank you for the enormous effort it must have taken to produce it… . I feel a high calling to meet the obligations you note for an observer to report what they have observed.”  

If you have any comments about the Guantanamo Bay Fair Trial Manual, please let us know! Please write to us at GitmoObserver@yahoo.com.

We would love to hear from you:

  • if you have monitored hearings at Ft. Meade or Guantanamo Bay
  • if you are scheduled to monitor hearings at Ft. Meade or Guantanamo Bay
  • if you have not monitored hearings, but have comments

In short, we are happy to hear from you!

E-mail us at GitmoObserver@yahoo.com.

MCOP Observer Returns from Guantanamo Bay – Hattie Harman

NGO Observers with General Martins.  From left: Abburi Harshavardhan (Univ. of Toledo law student), Robert Kerrigan (Human Rights First), Gina Moon (American Bar Assoc.), Emily Finsterwald (U. of New Mexico law student), Sean Murphy (Duke Univ. law student), Adam Adler (Yale law student/Nat'l Institute for Military Justice), General Mark Martins, Anna Kent (Georgetown Univ. law student), Eva Nudd (NYC Bar Assoc.), Charles Gillig (Pacific Council on Int'l Policy), Justin McCarthy (Judicial Watch), Hattie Harman (Indiana Univ. Law School MCOP), Bendan Kelly (Nat'l District Attorneys Assoc.), Ghalib Mahmoud (Seton Hall Law School)

NGO Observers with General Martins. From left: Abburi Harshavardhan (Univ. of Toledo law student), Robert Kerrigan (Human Rights First), Gina Moon (American Bar Assoc.), Emily Finsterwald (U. of New Mexico law student), Sean Murphy (Duke Univ. law student), Adam Adler (Yale law student/Nat’l Institute for Military Justice), General Mark Martins, Anna Kent (Georgetown Univ. law student), Eva Nudd (NYC Bar Assoc.), Charles Gillig (Pacific Council on Int’l Policy), Justin McCarthy (Judicial Watch), Hattie Harman (Indiana Univ. Law School MCOP), Brendan Kelly (Nat’l District Attorneys Assoc.), Ghalib Mahmoud (Seton Hall law student)

As part of a group of non-governmental organization (NGO) observers from across the United States, I spent the past five days, November 16-20, at the U.S. Naval Station in Guantanamo Bay, Cuba (GTMO). My mission as an NGO observer was to attend, observe, analyze, critique, and report on the week’s pretrial proceedings in the government’s case against Abd al Hadi al-Iraqi. Hadi is accused of several crimes arising out of his alleged role as an al Qaeda commander in Afghanistan during the post-9/11 period. I returned home late last night (Thursday, Nov. 20) to Indianapolis via Andrews Air Force Base.

Wonderful  Hosts

I cannot say enough about the wonderful reception the NGOs received from everyone we came into contact with at GTMO. All of them — including General Mark Martins and his staff, Hadi al-Iraqi’s defense team, our NGO escorts Mark Gordon and Darryl Roberson, the numerous members of the JTF Public Affairs Office, and many more — were exceptionally gracious and accommodating of our questions and requests to see and learn as much as possible about GTMO and the Commissions during our trip.

For Future Observers . . .Manual
To anyone with the opportunity to observe GTMO proceedings, I say, “do it!” But try to be as informed and prepared as possible before you go. This is hard to do when you are working or attending law school full-time, but it makes your experience of the hearings and your exchanges with the other NGOs so much more rewarding. Everyone in our group brought his or her own set of knowledge with them and it made for very informative and productive discussions. And the GITMO Observer’s Guantanamo Bay Fair Trial Manual is available free in electronic format at gitmoobserver.com. Many of my fellow NGOs had reviewed the Manual in advance of our trip, and they invariably commented that it was a very helpful tool for providing a framework from which to consider their observations. Hard copies of the Manual are also available on site at GTMO in the NGO “internet café” lounge. They are located to the right of the microwave and are free for the taking.

Detainees Depart GTMO for Resettlement; MCOP Observer Present- Hattie Harman

Breaking in the media today was news of the release and transfer abroad of five long-term Guantanamo Bay detainees.  Five Yemeni detainees deemed of low threat to the U.S. were released last night and accepted today for resettlement in Georgia and Slovakia.  The Department of Defense confirmed the transfer Thursday afternoon, and Carol Rosenberg of the Miami Herald was following the story as it broke.  And without realizing at the time what I was observing, I watched last night around 8:00 p.m. as a plane departed Guantanamo Bay Naval Station, apparently carrying the transferees.  As the NGOs sat around the tents last night discussing yesterday’s observations, the sound of an aircraft departing disturbed our conversation and we all looked up into the night sky.  Not accustomed to observing nighttime plane departures at Guantanamo, one of the group remarked, “I wonder who is on that plane.”  Now we know.

18 and 19 November Military Commissions Events at Guantanamo Bay – Hattie Harman

17 November Hadi al-Iraqi Hearings at Guantanamo Bay – Hattie Harman

Hattie Harman - at GTMO - Camp Justice - 17 June 2014 - IMG_1097

Hattie Harman at Camp Justice, Guantanamo Bay, Cuba.

This morning proceedings commenced in the pre-trial hearings in the government’s case against accused war criminal Hadi al-Iraqi.  Hadi is charged in a non-capital case with several crimes arising out of his alleged involvement as an al-Qaeda commander in Afghanistan.

Courtroom Facility/Personnel and Rights Implications

Hadi entered the courtroom unassisted and unrestrained and greeted his counsel in what appeared to be a congenial, even warm, exchange.  At Hadi’s defense table sat Hadi, his interpreter, and two military defense counsel.  Hadi was escorted by three uniformed (in fatigues) guards.  These guards sat within 12 feet of Hadi through the entirety of the proceedings.  There were from two to four other guards in the courtroom during the proceedings.  A fellow observer who had worked on the  UN International Criminal Tribunal for the former Yugoslavia (ICTY) case of Radovan Karadžić (an alleged genocidaire) told me that there was not near the security presence around the defendant in that case as there was in the Hadi al Iraqi case. [Eds. The Guantanamo Bay Fair Trial Manual addresses security personnel in the court and the issue of a defendant’s presumption of innocence.*]

I watched the proceedings from an observation gallery at the rear of the courtroom which was separate from the main courtroom, but allowed clear visual observation of the entire courtroom through thick glass windows.   Audio speakers in the observation gallery conveyed the sound of the proceedings to the observers, with a 40-second delay to allow for censorship of any unintentionally disclosed classified information in the courtroom.  No such censorship occurred today.   But we thirteen NGO observers were “joined” in the gallery by six uniformed military security persons.

Courtroom Proceedings and Rights Implications

Today’s hearing focused on three defense motions.  These motions implicated issues of

  1. Whether the executive branch or the DoD exerted any “unlawful command influence” regarding the timing of the referral of charges against Hadi.  Curiously, in the view of the defense, Hadi was charged on the Monday after the Friday, May 31, 2014 media coverage of the release of Bowe Bergdahl in exchange for five Guantanamo detainees.
  2. Whether Hadi’s charging document properly included numerous “common allegations” preceding the charges themselves.  These allegations, the defense argues, are simply another mechanism to try to get unproven “facts” before the Commission (MCA equivalent of a jury) before the commencement of proceedings which could prejudice Hadi’s right to be presumed innocent until proven guilty.
  3. Whether Hadi is entitled to a status determination pursuant to Article 5 of the 3rd Geneva Convention as to whether he is actually an “unlawful enemy belligerent” to whom the MCA applies.  If Hadi were determined to be a POW rather an unlawful enemy belligerent, the MCA would not provide personal jurisdiction over him, which in theory would mean he would have to be tried in a different tribunal which presumably would afford him more expansive procedural rights.

[Eds.] *The Guantanamo Bay Fair Trial Manual identifies the right to be presumed innocent as a fundamental right that should be afforded to all criminal defendants at Guantanamo Bay and elsewhere. The Guantanamo Bay Fair Trial Manual suggests that when assessing whether the defendant is being afforded a fair trial, NGO observers might consider whether, among other things, the level security personnel surrounding the defendant might be more in line with a presumption of guilt rather than a presumption of innocence.]

Arrival at Guantanamo Bay Naval Station (GTMO) – Hattie Harman

GTMO - Air Miami - IMG_1085 - Hattie Harman - 16 November 2014

My Air Miami plane parked at Guantanamo Bay air field after arriving from Andrews Air Force Base.

[Gitmo Observer staff posted this item for Ms. Hattie Harman because she had no internet access at Guantanamo Bay to post this herself.]

After a very pleasant flight, I arrived at GTMO a little after 1:00 p.m. today (Sunday).  In addition to the contingent of NGO observers, press, and defense, prosecution, and judicial personnel, passengers on the flight included several “regular” military travelers to the Naval Station (i.e., military personnel with no involvement in the legal proceedings against the detainees but traveling to GTMO on other military business).  The flight included a movie (Spiderman 2), a hot meal (choice of lasagna or chicken), and hot towel service.  It was reminiscent of air travel in the 1980s!

After Arrival

We were busy all afternoon getting badges for access to the court areas, obtaining supplies at the Naval Exchange, and doing a lot of waiting.  Despite the warnings of recent Gitmo Observer travelers, I expected more from the Internet here.  My attempt to purchase (at the cost of $150.00) wired Internet access from the NGO “internet cafe” was foiled for my lack of a proper adapter.

I was able to make it into “town” at 7:00 p.m. to a location that reportedly had wireless Internet access only to find it was not functioning.  Not only am I presently unable to post to the Gitmo Observer Blog, I am without any access to email or any other Internet-dependent mode of communication.  There is of course no cell phone service either.   We’ll see what tomorrow brings on the communication front.

 Hearings Commence Tomorrow, Monday, November 17

 In the morning, I expect to be escorted along with the other NGO observers to the courtroom in advance of the 9:00 a.m. commencement of this set of pretrial hearings in the United States’ prosecution of abd al Hadi al-Iraqi.  Hadi is accused of several crimes arising out of his alleged role as an al Qaeda commander in Afghanistan during the post-9/11 period.  Four motions are scheduled to be heard in this three-day session.

PS:  For access to the Guantanamo Bay Fair Trial Manual, click here.

Departure for Guantanamo Bay Naval Station (GTMO) – Hattie Harman

NGOs with the Fair Trial Manual

NGO Observers studying the Guantanamo Bay Fair Trial Manual. At Andrews Air Force Base waiting for our flight to Guantanamo Bay.

I flew from Indianapolis to Washington National Airport yesterday afternoon, in preparation for this morning’s departure to GTMO. Through the gracious hospitality of old friends, I had a lovely place to stay for the night and was driven to the Andrews Air Force Base Visitor’s Center at 5:30 A.M. Non-governmental organizations (NGOs) such as the Gitmo Observer (of Indiana University McKinney School of Law) tend to have very meager budgets, thus most ­– if not all – of our representatives’ travel expenses are borne by the individual observer. I must thank Spike Bradford, Jill Keesbury, and their son Angus for picking me up at National Airport, putting me up for the night, and driving me to Andrews at the crack of dawn. They are true friends indeed.

Pre-departure Discussions

In addition, my hosts provided very stimulating pre-trip conversation. Spike works for the D.C. area-based Pretrial Justice Institute, a nonprofit organization promoting safe, fair, and effective pretrial practices nationwide.

As the proceedings I will be observing this week at GTMO – those of Abd al Hadi al-Iraqi – are in the early pretrial stages, Spike offered me some perspective for comparison to U.S. domestic criminal courts. To me, the most stark comparison was between the different lengths of pretrial detention. In typical domestic United States criminal jurisdictions, the accused must be charged with a crime within 48-72 hours of arrest or detention, and then has the right (which he or she may choose to waive) to be brought to trial within a particular time limit.  See, e.g., Ind. Rule Crim. Procedure 4(B) (affording accused the right to move for a trial within 70 days). In addition, the U.S. Constitution guarantees the right of the accused “to be informed of the nature and cause of the accusation” and importantly provides that “the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amd. VI (emphasis added). The accused al Qaeda commander Hadi al Iraqi, whose proceedings I will observe next week, was first brought to GTMO in 2007 after being held by the CIA. Hadi was first charged with a crime in 2013.

Andrews Air Force Base

Arrival at Andrews

Arrival at Andrews

When I arrvied this morning at Andrews Air Force Base, I met several other NGO observers who will be attending this week’s hearings. One, a representative of the American Bar Association Criminal Justice Section, was already familiar with the work of The Gitmo Observer. I distributed copies of the Guantanamo Bay Fair Trial Manual to the NGOs and it was well received. Many other passengers continue to arrive at the Andrews terminal and are checking in for today’s flight, which is scheduled to depart for GTMO at 10:00 a.m.

Departing Indianapolis for Guantanamo Hearings – Hattie Harman

IMG_1079

The things I CAN’T forget to take to GTMO!

Tomorrow (Sunday) I will fly from Andrews Air Force Base to Guantanamo Bay Naval Station, Cuba to observer next week’s pretrial hearings in the U.S. prosecution of alleged al Qaeda commander Abd al Hadi al-Iraqi (17 – 20 November 2014). I will be transporting several updated draft copies of the Guantanamo Bay Fair Trial Manual to distribute to other non-governmental observers (NGOs).

Visit to International Criminal Law Class

Last evening, I had the good fortune to be a guest in Professor George Edwards’ class in International Criminal Law at the Indiana University McKinney School of Law. Professor Edwards, with help from students and others, has drafted the Guantanamo Bay Fair Trial Manual for use NGO observers and anyone else interested in determining whether stakeholders are getting a fair trial. I cannot thank Professor Edwards and his students enough for preparing the Manual and for welcoming me to their class. The Manual has been an indispensible part of my preparation, as it contains a trove of information about the treaties, U.S. laws, and regulations governing proceedings under the law of war,  and international human rights law, and it also identifies the various stakeholder groups in these proceedings, all of whom have rights under these laws, treaties, and regulations.

Making Connections – Theory to Practice

I am an attorney by profession, and my work involves primarily appellate review of both criminal and civil substantive law issues. Issues of procedure and particular rights arise from time to time but are by far most of my work involves more substantive questions such as, “Was a particular piece of evidence properly admitted?” and “Did the trial court properly apply the existing case law in instructing the jury?”. The rights issues I deal with are typically secondary to the substantive law questions.   Further, to the extent I deal with rights issues in practice, these issues relate almost invariably to the rights of the criminal defendant. Therefore, participation in this MCOP project requires me to shift my legal mindset and approach the proceedings from a very different perspective.

I have no previous experience in international law so of course the Guantanamo Bay Fair Trial Manual is extremely informative. But I found my visit to last night’s class was absolutely essential in helping me to make connections between the Manual’s exposition of human rights law procedures and the application of these rights to the stakeholders in practice. The students and Professor Edwards were able to help me focus on my role to assess whether the proceedings are delivering the rights to which each stakeholder is entitled, not what substantive law is at issue in the particular case.

Next Week’s Guantanamo Hearings – Hattie Harman

Abd al Hadi al Iraqi

Defendant Abd al Hadi al Iraqi

Today is Veteran’s Day and I am spending my day off from work preparing to attend next week’s pretrial hearings at Guantanamo Bay, Cuba. Next Monday, Tuesday and Wednesday (November 17, 18, and 19, 2014) proceedings will resume in the case United States v. Abd al Hadi al-Iraqi. Abd al Hadi was brought to Guantanamo in 2007 after detention by the CIA. Abd al Hadi is charged with several war crimes arising out of his alleged role as an al Qaeda commander in Afghanistan during the years following the September 11th attacks.

Hearing Agenda

The military judge’s order AE022 (corrected) enumerates the pretrial motions on the agenda for next week’s hearings.   Prior to the hearings, the parties and judge will meet for a pretrial conference on Sunday afternoon, November 16 at 5:00 p.m. The hearings are scheduled to begin at 9:00 a.m. on Monday and will include discussion and argument regarding four pending motions:

  • AE 018 – Defense Motion to Compel Discovery
  • AE 019 – Defense Motion to Strike Common Allegations
  • AE 020 – Defense Motion to Dismiss for Lack of Subject Matter Jurisdiction and to Compel a Status Determination pursuant to Article 5 of the Geneva Convention
  • AE 021 – Emergency Defense Motion for Appropriate Relief to Cease Physical Contact with [Female] Guards

With regard to the last item, the judge issued an order on November 7 (AE021B) which has been reported to temporarily grant Abd al Hadi’s request for cessation of physical contact with female guards.

My Role at the Proceedings

As a non-governmental observer (NGO) attending the hearings under the auspices of the Military Commissions Observation Project (MCOP) of the Indiana University McKinney School of Law Program in International Human Rights Law (PIHRL), I am tasked with the following duties:

  • Attend the hearings each day as an informed observer.
    • This requires a substantial commitment in terms of personal time and resources, including arranging for travel to Andrews Air Force Base, completing numerous government and MCOP documents, researching the status of the case and the motions to be heard next week, and reading and studying the Guantanamo Bay Fair Trial Manual prepared by MCOP.
  • Objectively and with an open mind observe the proceedings and interact with stakeholders present on site (including prosecutors, defense counsel, press, and other NGOs) to glean as much information as possible about the experiences of all stakeholders holding rights to fair proceedings at Guantanamo.
  • Analyze the hearings.
    • My observer’s role on behalf of MCOP is to analyze to proceedings not so much from a substantive legal perspective, but rather to focus on the various fair trial rights of all stakeholders to the proceedings.
  • Critique the hearings.
    • This includes identifying both positive and negative aspects of the process, both in the abstract (e.g., as compared to other judicial processes) and in practice at the hearing site. Where possible, assess the fairness of the proceedings with regard to the various stakeholders.
  • Report on the hearings.
    • Disseminate, through the Gitmo Observer and otherwise, information about the hearing process and the fairness of the proceedings. Prepare a report for MCOP upon my return.

Pre-Departure Tasks

I will depart Indianapolis for Washington, D.C. on Saturday and am ordered to arrive at Andrews Air Force Base (more…)