IU McKinney Law Affiliates During Briefing to Monitor Guantanamo Bay trials. Some in the photo are members of Professor Edwards’ Spring 2014 International Law class that studied the international law aspects of the 9-11 attacks, other crimes, and jurisdiction to try such crimes.
Guantanamo Bay Briefing
This photo is the of first group of Indiana University McKinney Law School Affiliates to be part of a Pre-Departure Briefing for monitoring US Military Commission hearings.
The Pentagon awarded IU McKinney’s Program in International Human Rights Law (PIHRL) special “NGO Observer Status” permitting the PIHRL (pronounced “Pearl”) to send IU McKinney Affiliates (students, faculty, staff and graduates) to monitor hearings at Guantanamo Bay, Cuba or at Ft. Meade, Maryland. The training of this first group took place in Indianapolis at the law school on Friday, 11 April 2014.
The MCOP Briefing Book — About 2000 pages on Military Commission law and practice. Participants were also provided copies of the 1949 Geneva Conventions and the Protocols Additional.
In the picture are four IU Affiliates who traveled to Ft. Meade in April for hearings in the 9-11 World Trade Center bombing case and the 2000 U.S.S. Cole bombing case. Also pictured are two IU Affiliates who traveled to Guantanamo Bay for hearings in both those cases in April.
Mr. Rick Kammen (center of photo with jeans and light top), who is a lawyer for defendant al Nashiri in the USS Cole Case, lectured on the history of U.S. Military Commissions, substantive and procedural law related to the Guantanamo Bay Military Commissions, litigation strategies, and the logistical difficulties associated with trying cases at a base on an island, away from the Mainland U.S.
Those pictured whose mission was to Ft. Meade are Jeffrey Kerner, Jeff Papa, and Hattie Harman.
Judge Pat Riley (Indiana Court of Appeals) is pictured behing Rick Kammen’s right shoulder.
Professor George Edwards (PIHRL Founding Director & MCOP Founding Director) appears at the far right of the photo.
Absent from the photo above are Jeff Meding (who was in Washington DC for his flight from Andrews Air Force Base to GTMO the next day) and Luke Bielawski, who went to Ft. Meade. Luke is in the photo below.
Left to right: Luke Bielawski (Ft. Meade, USS Cole), Jeffrey Werner (Ft. Meade, 9-11), George Edwards (Ft. Meade, USS Cole; Guantanamo Bay, US v David Hicks), Judge Patricia Riley (Guantanamo Bay, USS Cole), Jeff Papa (Ft. Meade, USS Cole) & Hattie Harman (Ft. Meade, 9-11). Absent is Jeff Meding (Guantanamo Bay, 9-11, who was en route to Andrews for his GTMO flight)
The Pre-DepartureBriefing Book of the MCOP was compiled by Mr. Jeff Meding, Ms. Qifan Wang, Ms. Kristin Brockett, and Professor George Edwards. For each cycle of hearings, a Supplementary Briefing Book will be prepared and distributed to all participants. A copy of our Briefing Book is now permanently housed in the NGO Observer Compound at Guantanamo Bay for subsequent McKinney Affiliates and others to use on their Missions to GTMO for hearings or trials.
Indiana Court of Appeals Judge Patricia Riley traveled to Guantanamo Bay, Cuba for U.S. Military Commission Hearings as part of the Indiana University McKinney School of Law Military Commission Observation Project (MCOP) which is part of the law school’s Program in International Human Rights Law (PIHRL – pronounced “Pearl”) founded by Professor George Edwards in 1997.
Indiana Judge Speaks While Heading To Guantanamo Bay
Judge Patritica Riley (Indiana Court of Appeals) sent the following note in on Easter Monday, 21 April 2014, when she was waiting at Andrews Air Force Base for her flight to Guantanamo Bay. She will be monitoring hearings in the U.S. Military Commission case of 5 defendants accused of masterminding the attack on the USS Cole, a US naval ship docked in Yemen in 2000. That suicide attack killed 17 US sailors and injured over 30 other service personnel on the ship.
Judge Riley’s mission to GTMO (or Gitmo) is through the MilitaryCommission Observation Project (MCOP) of the Indiana University McKinney School of Law’s Program in International Human Rights Law (PIHRL) (pronounced “Pearl”), which was founded by Professor George Edwards in 1997. The Pentagon granted the PIHRL “NGO Observer Status”, which permits the program to send McKinney students, faculty, staff and graduates to monitor the Military Commissions.
Following are Judge Riley’s words from Andrews Air Force Base:
“Waiting at Andrews for the plane to take us to Guantanamo Bay. It is a normal waiting area but everyone is going to GITMO and each has a different role. The victims and/or their families are here by lottery and may be sitting next to a member of the defense team. The prosecutors may be sitting next to the observers from different NGOs. Until we get to the base the roles each person will play are not talked about except in very general terms.
I’ve talked to Cassandra Adams who is a professor/mediator from Birmingham, Alabama who is a DIVO, defense initiated victim for outreach. She will be sitting in an area designated for observers and is not able to approach the victims directly. She is available if they need support
Dr. Susan Cosby, Boston,Mass, is here as a specialist for prisoners who have been tortured. She has met with al-Nashiri on three different occasions.
I’m having coffee with Rick Kammen from the defense team. They have all gathered together, as old friends would, getting caught up with matters that have popped up at the last minute. There is a lot of chatter but I feel the underlying tension building as they each refer to the job ahead with seriousness and respect for each other’s roles.
Carol Rosenberg, reporter from Miami Herald,and only news reporter here, just told me that there is no wireless connection and you must pay $150/wk for an Ethernet connection that doesn’t work half the time. I can register my device at the library and it might work at the local Starbucks. Hard to believe that the connections are so poor.
I will be in touch as soon as I can.”
We are looking forward to more posts from Judge Riley! She is scheduled to be in Guantanamo Bay, Cuba until Wednesday, 30 April 2014. She will fly back to Andrews Air Force Base on a military flight, and then return to Indianapolis.
Sequestering the Jury on Guantanamo Bay? The USS Cole trial, which is tentatively scheduled to begin in a military courtroom at Guantanamo Bay in October 2014, could last for 9 to 12 months. The military commission that will try the case will have a pool of 37 “members” (jurors) to choose from who will act like jurors in a typical criminal case.
A judge may sequester a jury for multiple reasons, with one reason being to try to avoid “jury contamination”, including jurors being exposed to information about the case that is not officially entered into evidence in the case. Contamination might occur in many different ways, including from watching television or reading newspaper reports, or from overhearing conversations of people involved with the case.
In yesterday’s hearing, the defense made the point that in a normal trial the jurors would spread out to their individual offices and homes over many square miles, and would have very little chance of accidental contact. But in this case, once the 37 possible members (jurors) arrive at Guantanamo, serious questions of jury contamination could occur.
Unique Nature of Guantanamo Mr. Rick Kammen, who is a lawyer for one of the USS Cole defendants (al Nashiri) spoke at our MCOP Pre-Departure Briefing. He noted that due to the unique nature of Guantanamo, air transport to Cuba is limited. Any plane that carries people to Guantanamo for the hearings and trial might contain a mix of trial participants (meaning a mix on the same flight), including, for example, trial counsel (prosecution), defense counsel, witnesses, victims’ family members, legal experts, government personnel, NGO Observers, and others involved with the military commissions.
Once at Guantanamo, the small spaces and facilities create a parallel danger of possible contamination.
This raises interesting issues of accidental or purposeful cross-talk or other improper influence.
Defense Requests The defense asked the judge to prohibit jurors / member from access to certain items, such as newspapers and other periodicals, and that members sequestration be considered.
This is a daunting request for many reasons, including that it is said that the trial may last 9-12 months.
There would certainly be accidental contact, according to defense, and the extraordinary conditions call for extraordinary measures. The government chose this forum. The 37 potential members were selected by the commission and are service members, so one can assume the Commission took into account where this proceeding will take place and these are not civilians; they are military men and women who are accustomed to being away from friends and family for extended periods.
Counter arguments include that the members will all be military officers, and they will be able to follow all instructions of the judge, including instructions to avoid media reports about the case, outside conversation about the case, or other possible taints. This is so even if members are permitted to return to their duty stations in the U.S. or elsewhere during any breaks in the trial.
Judge’s Resolution To resolve this issue for the day, the judge determined that by one month prior to completion of the member / jury voir dire (the pre-trial process involving the selection of the portion of the 37 person panel that will hear the case), a housing plan for the members / jurors will be determined.
Jeff Papa attends U.S. Military Commission (Guantanamo Bay) hearings in the case involving the alleged masterminds of the U.S.S. Cole bombing. The hearings are live at Gitmo & by secure videolink to the Post Theater on the military base at Ft. Meade, Maryland.
Today’s hearings were on the case of the alleged masterminds of the bombing of the U.S.S. Cole, a naval ship harbored in Yemen in 2000. Judge Pat Riley (Indiana Court of Appeals) from our team is in Guantanamo Bay, sitting in the courtroom. Luke Bielawski and I are at Ft. Meade, Maryland, watching the Guantanamo proceedings on secure videolink.
What’s on for Today? A Question of Reprisals
The Commission hearings covered several interesting issues today. The most interesting issue was the last item discussed.
The defense has requested information about third party civilian deaths and collateral damage caused by US or coalition forces in order to consider a defense of reprisal.
Judge Pohl began by pointing out that the government alleges that reprisal is only a defense if the defendant is a state actor. The defense agreed, but reserved the right to argue that Nashiri is a state actor. The defense claimed that this is relevant to his state of mind and any ability to participate in the governments alleged far-flung conspiracy. This could show extenuation and mitigation.
Judge Pohl followed up on this by asking if you would have to show that the defendant knew about these very specific actions or just that he knew (more…)
Glad to review the MCOP Briefing Book on the plane to the East Coast — Most Helpful! Thanks to Mr. Jeff Meding, Ms. Qifan Wang, Ms. Krisitn Brockett & Professor Edwards!
Early Arrival at the Ft. Meade Military Base Venue I arrived this morning promptly at 7:45. I did not want to be late. I never want to be late in the first place, but seeing as how I was now on a military base, I felt that the importance of punctuality was increased even more. I even neatly made my bed and folded the towels at the army hotel on base before I left for the proceedings!
I sat alone for a good hour in the broadcast room (I will call it the lecture hall because that is exactly what it reminds me of: a college lecture hall!) waiting for others to arrive and wondering if I was in the right place. I spent the time alone to once again go over the briefing book.
Others finally show up! At 8:45 six people arrived at once. One of the blog posts from last week had said that the media are transported to Smallwood Hall all at once so I figured that they were a part of the media.
Two of the young men that were among the group are bloggers for a think tank in Washington. They both asked me if I was with the commission. They thought that I was because of the large briefing book that I had by my side. Kudos to you Professor George Edwards, Mr. Jeff Medding, Ms. Qifan Wang, and Ms. Kristen Brockett! The binder obviously looks very professional and everyone looked at McKinney Law as an expert in these proceedings! So the binder has proven itself to be useful for more than briefing us on the proceedings!
Show Time — 9:00 a.m.! The proceedings began promptly at 9 o’clock. The defense counsel for defendant al Nashiri, Mr. Kammen first offered an apology to the judge. Apparently the defense had made a clerical error the previous day and was unaware of one (more…)
Luke Bielawski, who is a recent graduate of the Indiana University McKinney School of Law, recently traveled to the military base at Ft. Meade, Maryland to monitor the Guantanamo Bay hearings in the U.S.S. Cole case, with one of the defendants being al Nashiri. At Ft. Meade, the hearings are broadcast live via a secure video-link. We are re-posting some of his photos that demonstrate his excitement and enthusiasm about his Mission. More reports by Luke can be found elsewhere on this Military Commission Observation Project (MCPO) Blog. If any other IU McKinney students, faculty, staff of graduates wish to travel to Ft. Meade or Guantanamo Bay on a MCOP Mission, please follow this link and register: MCOP Registration.
Packing for my week at Fort Meade for the Guantanamo Bay Hearings
Even though I’m not in the court room at Gitmo, I’m still representing McKinney Law School and Indiana, so I want to look my best!
Waiting for departure…
ALMOST everything I’ve learned about the GTMO proceedings has come from popular media outlets. I’m excited to get a first hand view on what is going on. A bit ironic that the news right before I boarded was covering the War on Terror and Al’Qaeda
Winding Up My Mission To Guantanamo Bay, Cuba My last day at Guantanamo Bay, Cuba was the 18th of April 2014. I woke up early, at 5:30 a.m., to pack and get to breakfast before it was time to leave. We had to catch a ferry by 7 a.m. that would take us to the Guantanamo Bay landing strip for our flight back to Andrews Air Force Base.
An Amazing Experience My time at GTMO was, very simply, an amazing experience!
First, all of the NGO’s on the trip were great. Although we inevitably had various views about the MC, everyone was very respectful of each other’s opinions. There were productive conversations between the group members and it was beneficial to hear various viewpoints that I had not considered.
Second, Ben Fenwick and Joanna Leichtman, our MC escorts for the weekend, were fabulous! They were both extremely organized, accommodating, and genuinely nice people. They made the trip that much more enjoyable!
OMC escorts, Ben Fenwick and Joanna Leichtman, were amazing during the mission to GTMO!
Third, the entire GTMO military community was very welcoming. I feel lucky I had the opportunity to meet these extraordinary men and women.
Also, I learned a great deal that will help me in my career as a lawyer. Being in the courtroom is very different from reading about motion hearings in criminal cases.
Finally, the ability to witness the 9/11 MC Hearings was a once in a lifetime experience.
Divisiveness? Controversy? There is no doubt that the Military Commissions are divisive as an issue.
This became especially clear after the news this week that the FBI allegedly questioned a member of the defense team of defendant Ramzi Binalshibh, who is charged with Khalid Shaid Mohammad and others in the 9/11 case. The person who was approached was the defendant’s Defense Security Officer (DSO), who is a civilian who assists the defense team handle classified evidence. The FBI had the DSO sign a non-disclosure agreement. This revelation caused the judge to halt the proceedings because it potentially has created a conflict of interest issue between the defense attorneys and their clients. Until this issue is resolved, nothing else is going to move forward in the 9/11 case.
Ferry coming to pick us up and take us to the landing strip for the flight back to Andrews Air Force Base.
Arguments For and Against the 9/11 Case Being Tried in a Military Tribunal I understand that there are arguments on both sides of the aisle as to why this case should or should not be in military court.
The Prosecution wants to try this case in a MC in GTMO because of the potential safety concerns if it was in U.S. Federal Court. Also, I think the Prosecution wants this case in a MC because they do not want the alleged torture of the defendants to be admitted into evidence.
Now, I am not going to pretend to be an expert in the distinction between the Rules of Evidence in Federal Court vs. Military Commissions. However, after reading the rules and talking with various people from the Defense Teams, as well as NGO’s, it seems that in Federal Court the alleged torture information would be more likely to be admitted into evidence.
Finally, right now, GTMO seems to be the only place where the Prosecution can try the defendants.
Bringing the defendants to the U.S. and trying them in Federal Court is not an option under the National Defense Authorization Act for FY2014, which “contains an absolute bar on the transfer of Guantanamo detainees into the United States for any purpose, and also prohibits the building or modifying of facilities in the United State to house such detainees.” See Jennifer K. Elsea and Michael John Garcia, The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters, pg. 42 (2014).
The Defense on the other hand thinks this case should be tried in Federal Court, not a MC. Based off of my conversations with members of the Defense Teams, I think the Defense believes their clients will not receive a fair trial in a MC. Some issues presented in this MC include due process, attorney-client privilege, and conflict of interest concerns.
Also, based on the Governments involvement in this case, there seems to have been an erosion of the professional working relationship between the Prosecution and Defense Teams. For example, various events have been reported that have created a sense of distrust of the Government and Prosecution in this case. Some events include CIA censorship of the proceedings, smoke detectors that were installed with listening devices in the meeting rooms of the defendants and their attorneys, and the disappearance of Defense Team information that was stored on hard drives.
Overall, the latest delay in the case seems to be frustrating for everyone involved with the Military Commissions, especially the family members of the 9/11 victims.
What Happens in Vegas? As these hearings plod along, it is interesting that the 9/11 case is not getting more national news coverage. The famous saying “what happens in Vegas stays in Vegas” unfortunately seems applicable to GTMO.
By Jeff Meding, Military Commission Observation Project, Indiana University McKinney School of Law
Special Counsel Appointed to Investigate FBI Infiltration of 9-11 Defendant’s Defense Team As Jeff Meding posted earlier, the main event of Thursday’s short hearing was the government counsel acknowledging that special counsel Fernando Campoamor-Sanchez has been appointed to represent the government on the issue of the alleged FBI infiltration of Binalshibh’s defense team (seeking information about Mohammad’s defense team) (AE292). Campoamor-Sanchez is best known for his role in prosecuting the Chandra Levy murder in 2011 when he was an Assistant United States Attorney (AUSA).
After today’s hearing, the Miami Herald reported that by Thursday evening, the 9-11 case Judge Pohl had “appointed two unnamed independent defense counsel” to advise Mohammad and Binalshibh with regard to the potential conflict of interest that may arise within their defense teams stemming from the FBI investigation. And at Thursday’s hearing, Judge Pohl left open the possibility that, depending upon what is revealed in discovery into the FBI investigation, the other defendants may also need separate counsel for this purpose.
Can Defense Counsel Bring Back to GTMO Defendant’s Notes Written at GTMO? Another interesting issue addressed Thursday was defense counsel Cheryl Bormann’s request that Judge Pohl issue an order from the bench allowing her to bring writings made by her client Bin Attash back to him at Guantanamo. Apparently counsel had been permitted access to writings her client made that related to his defense, and was permitted to take them from Guantanamo in order to use them in the development of the defense. But when she attempted to bring them back to discuss in conference with Bin Attash, the “Privilege Review Team” (PRT) refused to allow it. Judge Pohn granted Bormann’s request.
Khalid Shaik Mohammad’s Defense Counsel to Leave Finally, Army Major Jason Wright, one of Mohammad’s defense counsel, informed the court that he likely will be leaving the defense team this summer. As an Army JAG officer, Wright is required to complete his LLM degree after attaining the rank of Major. This would require him to leave his present assignment as counsel for Mohammad. Wright’s deferral request was denied, and he has been ordered to report for his LLM assignment in July. Major Wright informed Judge Pohl that he determined that his obligation to his client must take precedence and for that reason he has resigned his commission and will be separated from the Army on August 26. This will allow Wright to represent Mohammad through the June hearings and hopefully at the August hearings as well.
No luck visiting the NSA!
Post-Hearing on Thursday After Thursday’s hearings adjourned, I took a quick tour of the base on my way to the airport.
I was unable to see the National Security Agency (NSA) headquarters, though, as I was confronted by signs as pictured at right. And while I was unsuccessful at convincing Military Police Officer Robinson to take my photograph by the main gate, I was able to convince him to allow me to take his photo by his police vehicle. I must say that everyone I encountered at Fort Meade was most gracious and helpful.
Fort Meade Main Gate
Touch Down at Indianapolis Airport–Met by police, fire trucks, sniffer dogs! Things got even more interesting on my return trip to Indianapolis, when the Southwest flight on which I was traveling landed on time and then taxied into what seemed like the middle of nowhere! The plane was surrounded by police and fire trucks. Passengers were deplaned by stairway onto the tarmac where we and our carry-on luggage were sniffed dogs handled by TSA agents. We were then bussed nonchalantly to the terminal to continue on our way.
I later read news reports that my flight had requested an “emergency landing” after having received a “threat.” Precisely what the threat was, I still do not know! But I arrived home from Fort Meade safe and grateful for the wonderful experience of serving as an observer on behalf of McKinney’s MCOP team.
En route to the final 9/11 hearings for April 2014. Please see below a picture of me standing in front of the Camp Justice sign. Also, you will see a photo of the entire NGO group that was taken right before the hearing today.
Standing in front of Camp Justice.
All of the NGO’s taking a photo in front of the Camp Justice sign.
Well, as predicted, today’s hearing was over in less than an hour. It started a 0907 AM and recessed at 0950 AM. KSM, Ramzi Binalshibh, and Ammar al-Baluchi were present when the MC was called to order. The FBI issue (292) was the main focal point of this hearing. In fact, between the hearing being adjourned on Tuesday and resuming today, the Defense counsel filed a discovery motion (292D). In response to this Motion, the Government filed (292F ex parte) requesting time to file a submission by a newly detailed trial counsel. Finally, the Defense counsel filed an objection (292G) to the Government’s 292F motion.
Special Trial Counsel Fernando Campoamor-Sanchez, an official of the U.S. DOJ, was appointed to represent the U.S. in all matters relating to 292 (FBI issue). The Prosecution team wants to insulate itself from any 292 issue.
Judge Pohl worked out some procedural matters on how to proceed forward with the hearings and address the 292 issue. And just like that, the hearings were over and the court was recessed.
Below is a link to the Transcript of today’s Hearing.
Since the hearing was adjourned until Thursday, a couple of NGO’s went to Windmill Beach to go snorkeling and scuba diving. I wish I had an underwater camera because we were in a great area for snorkeling. That being said, I noticed at times it is easy to forget you are at GTMO. For example, one moment I am watching a school of fish swim by while I am snorkeling, and the next moment, as I come up from the water, I see an area of GTMO surrounded by barbed wire. The contrasting images do throw you off a bit because you are surrounded by this beautiful water, but at the same time you are on a military base.
After the beach, we went to dinner and I came back and worked on the Blog. Unfortunately, most people are under the assumption that tomorrow’s hearing is going to be over very quickly. I hope this is not the case, but if I was a betting man, I would bet that it will be over before 10 AM.
I will be sure to fill everyone in once I get out of the court room.
By Jeff Meding, Military Commission Observation Project, Indiana University McKinney School of Law
As Jeff shared yesterday, there were no hearings today and the defense was given the day to prepare proposed orders for discovery related to the FBI’s alleged questioning of the Defense Security Officer on Ramzi Binalshibh’s defense team. And indeed, an ex parte, under seal document was filed today on the issue by counsel for Binalshibh.
Pedestrian entrance to U.S. Naval Academy at Annapolis
As there was no courtroom activity today, I used the free day to make the 25-minute drive to Annapolis to tour the United States Naval Academy. Aside from my personal interest in the facility, I confess I hope to some day interest my 8th grade son in touring the campus as well!
I elected to take the guided walking tour which lasted about an hour and a half and contained a wealth of information about the academy. The grounds are absolutely beautiful and the facilities shown on the tour were state-of-the art. For me, however, the highlight was viewing the crypt where Scotsman and Revolutionary War naval hero John Paul Jones is entombed. Commanding the Bon Homme Richard, the severely out-gunned Jones uttered the famous words “I have not yet begun to fight!” and ultimately captured the British ship HMS Serapis in the battle.
Sarcophagus of John Paul Jones
As the United States had not yet formed an organized navy, after the Revolution Jones sought work elsewhere in the world, and for a time served as an admiral in the Russian navy under Catherine the Great. He later moved the France, where he died in 1792 of complications from an earlier bout with malaria. The French had preserved and buried Jones’ body in a royal cemetery, but the location of the cemetery was lost after the French Revolution. After a six-year search, Jones’ grave was discovered and his remains were repatriated to the United States. He has been interred at the Naval Academy ever since.
After an interesting day learning new things, I’m ready for more hearings! Hopefully we will hear from Judge Pohl tomorrow. In the meantime, I expect Jeff will update us on his adventures in Cuba!
Today lasted longer than yesterday’s roughly 40 minute hearing. However, it was still over by 11:15 AM.
As the hearing began, it was noticeable that only KSM and Ramzi Binalshibh were present. Walid bin Attash, Ali Abdul Aziz Ali aka Ammar al-Baluchi, and Mustafa al Hawsawi were not present when the MC was called to order at 0915 on 15 April 2014. Captain G, a liaison between the Staff Judge Advocate and the JTF-GTMO camp in which the detainees are held, testified that she advised each defendant of their right to be present at the hearing. Each of the three defendants waived their right to be present. As a procedural note, I imagine Captain G’s full name was not released for security concerns, although this was never addressed during her testimony.
The entire hearing dealt with the conflict of interest issue. This issue was created when 2 FBI agents interviewed the Deputy Security Officer (DSO) for Ramzi Binalshibh’s Defense team. The DSO acts as a liaison with defense counsel on what evidence should be considered classified and what evidence should be considered unclassified in court filings. Although the DSO from Binalshibh’s team has been removed, the conflict of interest issue is the sticking point right now. Judge Pohl referred to this as the FBI interview issue (292).
All five Defense teams want an abatement of the hearings until the conflict of interest issue is resolved, while the Prosecution wants Judge Pohl to deny the abatement request and move onto the original docket. Specifically, the Defense teams want the Commission to conduct an inquiry as to whether or not a conflict actually exists. Mr. Nevin, lead defense counsel for KSM, said case law requires an inquiry when a “specter of a conflict is presented.” The Defenses argument is that there is a possibility that a conflict exists because of this FBI investigation; therefore, an inquiry must be conducted by the Commission. Defense cited 3 SCOTUS cases in support of their argument. The cases were Wood v. Georgia, Cuyler v. Sullivan, and Holloway v. Arkansas.
On the other side of the aisle, the Prosecution wants Judge Pohl to address the originally scheduled docket and come back and look at the conflict of interest issue at a later hearing. It is the Prosecution’s contention that there is “no legally cognizable conflict of interest” for any of the defense attorneys; therefore, the hearing should proceed as originally intended and the 909 issue should be addressed.
The most interesting exchange of the hearing occurred when Judge Pohl questioned Mr. Ryan, an attorney for the DOJ and co-counsel for the Prosecution. Judge Pohl asked Ryan, based on his experience, since it it is an ongoing investigation, did Ryan think it would be unlikely that the 2 FBI agents would cooperate if the Judge issued an order for them to appear? Mr. Ryan stated “[I] think the commission would be greatly mistaken to go down a road of trying to look inside an ongoing investigation being conducted by the Federal Bureau of Investigation, if, in fact, one is in — exists.” The Courts inability to order certain agencies — namely the FBI — to come testify gives off the initial impression that there is a lack of control by the MC over the proceedings. Which brings the question: Ultimately, who is in control of these proceedings?
I think Judge Pohl should just bifurcate the issues. Since the defense is not challenging Binalshibh’s competency, I don’t understand how they would be conflicted to let the Prosecution present evidence on the 909 issue. The MC could use this week to figure out Binalshibh’s competency, then it can move onto the FBI issue (292) during the next round of hearings. This would allow the Prosecution to address the 909 issue and it would also allow the Defense to have an inquiry conducted into the FBI investigation before the next scheduled hearings. It seems to me to be the pragmatic solution. With all of this being said, I understand the gravity of the conflict of interest issue and I am sure Judge Pohl would rather be safe than sorry. He would rather address the conflict of interest issue first, so it potentially is not brought up later on appeal and reversed for structural error — which under the Federal Court system requires an automatic reversal without a showing of harm.
Note: I would like to thank my fellow IU Affiliate, Hattie Harman, for bringing the structural error issue to my attention.
Judge Pohl adjourned the hearings until Thursday, April 17 and issued an Order that anyone who was approached by the FBI or any other federal government agency, concerning any defense-related matters, must disclose this to the Lead Counsel of each team, and not anyone else. Also, by Wednesday at 5 PM, the defense has to submit any proposed orders of production that they believe appropriate in the case.
If you would like more details about today’s hearing please find a copy of the transcript below.
Since the hearing was over before noon, some of the NGO group went and took a tour of Radio GTMO. The station’s motto is “Rockin in Fidel’s Backyard.” We visited the radio station because it also has a popular gift shop. In fact, I bought a couple of “challenge coins” here. These coins are generally collected by other service members to show what bases they have been to.
Radio GTMO Studio
All of the NGO’s, 13 of us, met with General Mark Martins, Chief Prosecutor of the Military Commissions, for a Q&A session at 5:30 PM. General Martins was very respectful of everyone’s questions and I appreciate it that he took time out of his extremely busy schedule to sit down with us. Overall, I thought it was a productive Q&A, given the fact that the General can only talk about so much because of the nature of this case. That said, I got the impression that he answered most of the NGO’s questions in a very prosecutorial/politician sort of way — making sure to never tip his hand.
Although the hearing was cut short, I felt the rest of the day was productive. Time to wait and see what Thursday brings. Until then, it looks like Wednesday is going to include some more snorkeling!
By Jeff Meding, Military Commission Observation Project, Indiana University McKinney School of Law
I’ll let Jeff provide the update on the courtroom events of the day – stay tuned for some interesting information! In the meantime, I thought I’d give a little background on the setup here at Fort Meade.
According to (the dreaded) Wikipedia: “Fort George G. Meade is a United States Army installation that includes the Defense Information School, the United States Army Field Band, and the headquarters of United States Cyber Command, the National Security Agency, the Defense Courier Service, and Defense Information Systems Agency headquarters. It is named for George G. Meade, a general from the U.S. Civil War, who served as commander of the Army of the Potomac.”
The base is located southwest of Baltimore and is a short drive from BWI airport. Entry to the base for NGOs is easy; I simply proceed through the main gate (which is probably six miles from my hotel) and to a vehicle inspection checkpoint where uniformed men check my driver’s license and car registration. They ask my business on the base send me on my way. It is a short drive to Smallwood Hall, past the impressive-looking headquarters of the Defense Information Systems Agency, which provides IT and communications support to the President, Vice President, Secretary of Defense, and military services.
Entrance to Smallwood Hall, where we view the hearings via secure video link.
Smallwood Hall is a small, house-like building. In front of the building are two large satellite dishes. I spoke with an IT contractor for the Office of Military Commissions who is on site and operates the system while we are here. He informed me the dishes receive the video and audio from Guantánamo through two satellites, a KU band and a C band. The satellites reside in a geosynchronous orbit in what is commonly referred to as the “Clarke orbit” 36,000 miles above the equator. The dual signals provide complete redundancy in the event of an interruption in the signal from one of the two satellites. In the event of heavy rain, which we are experiencing at Fort Meade today, the KU band is often interrupted and the C band is used. Interestingly, the satellites are owned by a Canadian and a Belgian firm, from whom the government leases bandwidth.
Notice the two large satellite dishes in the right of the photo.
After the IT contractor, I have been the first to arrive each day, a little after 8:00 a.m. There is no particular protocol for entering the Post Theater; the door is unlocked and I just walk in and select a seat in a small auditorium similar to a classroom at our law school. A large screen fronts the room flanked by a United States flag and a U.S. Army flag. Around 8:35 a group of reporters and bloggers arrives together. They are required to meet at the main base entrance and their vehicles undergo a bomb sniff before proceeding to the theater with an escort. They also must be escorted off the post. Present today were representatives from Reuters, Huffington Post, New York Daily News, and Agence France-Presse, and a blogger/reporter from the Brookings Institution. Yesterday an L.A. Times reporter was also here. In addition, there is a reporter from the Armed Forces Press Service (of the Department of Defense) and also an observer from the “OSD” – Office of the Secretary of Defense. He described himself as a “media analyst” for the DOD and was very personable and helpful. Today he provided the media escort off the base.
Auditorium in Smallwood Hall
The family members watch at another location on base; I’m told by one of the press here that some NGOs may be at that location as well, and when Smallwood Hall is occupied with another event, the press may view the proceedings from that location also.
We are permitted to bring cell phones and laptops into the theater. In fact, a white board at the front of the room provides the WiFi password for the building. The reporters are thus able to post reports in real time as court is in session. I would be interested to know what (if any) monitoring is done by DOD of this connection.
Another nice amenity is that someone from a canteen on base is here every morning to take our lunch orders. For a not terribly unreasonable price (e.g., $8.00 club sandwich; $2.50 piece of pizza) we can order lunch which is delivered to us at midday. And finally, on the first day of the hearings we were provided with a CD-ROM containing PDFs of what appear to be all the public filings in the case to date. This is all very helpful but I also suspect it is aimed at limiting the media’s exposure to the base and exercising some control over what documents are “officially” provided.
The atmosphere is congenial; the other attendees were happy to answer my questions and discuss issues. While the hearings are ongoing there is not a lot of discussion, but during breaks and after adjournment they ask each other questions and confirm certain details of the hearings with each other as they prepare to post their stories for the day.
We adjourned early again today – Jeff will have more later on all the excitement!!
I will be attending the Guantanamo Bay hearings that are being simultaneously broadcast from GTMO to at Ft. Meade, Maryland next Tuesday and Wednesday. I know very little about the details of these proceedings, other than many I learned from media reports and from good general information I learned from Andrew Northern in my National Security Law course. Pre-Departure Briefing Last Friday, we had the opportunity to participate in a Pre-Departure Mission before we set out for our respective sites, Guantanamo Bay for some, and for other like myself, Ft. Meade, Maryland.
We were fortunate to have as our primary Briefing Mr. Rick Kammen, who is an Indianapolis attorney, who is the death penalty counsel in the USS Cole case, which happens to be the case I will be monitorin.
Mr. Kammen described in a very compelling fashion over the course of a few hours the point of view of the defense team and many of the difficulties encountered. He also provided a great basis for critical thinking about the process, pro and con.
This opportunity was extremely valuable, and together with the very extensive briefing book prepared by Professor Edwards’ Program in International Human Rights Law (PIHRL), I believe I will have an outstanding basis from which to begin viewing and thinking about the proceedings next week.
Today marked the beginning of a planned four-day set of pre-trial hearings for five alleged 9/11 conspirators being held at Guantánamo Bay. I viewed this morning’s court session remotely at Fort Meade, Maryland. Jeff Meding is on site in Cuba and has previously posted information about the motions scheduled to be argued. Among these is AE152J in which the government requests Judge Pohl to make a determination pursuant to Military Commission Rule 909 of Ramzi bin al Shibh’s competency.
Judge Pohl called the hearing to order at 09:15 EDT. He then advised each accused (all of whom were present in the courtroom) of his right to be present throughout the hearings, and through an interpreter, each accused responded that he understood.
Counsel for the government then addressed the judge, requesting the he grant an ex parte motion apparently filed by the government on Sunday. The only information available in open court was that the motion was numbered 152V and related to the RMC 909 competency issue. Judge Pohl refused the government’s request to grant the motion without a hearing and expressed concern about derailing the week’s schedule over the issue. The government then indicated it felt an ex parte hearing on the issue would take no longer than an hour.
When James Harrington, counsel for bin al Shibh, responded, he stated the defense objects to an ex parte order and would like to brief in opposition and could do so within the hour. However, Harrington objected to a continuance on the ex parte motion issue because of another pending motion, namely, a joint defense “emergency motion to abate” the proceedings which he and the other defense attorneys had filed around 10:00 p.m. Sunday. According to Harrington’s argument, a member of the bin al Shibh defense team was approached on Sunday, April 6 (last week) by two FBI agents and questioned regarding the defense teams in this case. Apparently the motion attaches what purports to be a non-disclosure agreement the FBI required this team member to sign. Harrington asked for abatement of the proceedings pending investigation into the incident and proper advisement of the five accused of any potential conflict of interest. bin Attash’s lawyer also addressed the judge and represented that the content of the FBI conversation is not yet known and without such knowledge her client will not be able to determine if he has conflict-free counsel. The attorneys for the other accused also addressed the court and described efforts to draft the motion.
The government then argued against abatement and also requested the judge proceed with the ex parte hearing on the RMC 909 issue.
The judge determined that he would go ahead with an ex parte hearing on the government’s motion at 1:00 p.m. Monday and would otherwise adjourn for the day, to reconvene Tuesday at 9:00 a.m.
I suspect that Jeff will hear more talk on the ground at GTMO and hopefully we will hear from him!
In the meantime, I spoke with an L.A. Times reporter at Fort Meade, and he indicated that Carol Rosenberg of the Miami Herald is a highly respected press reporter on these hearings. Carol has posted a story about today’s events from her perspective on the Miami Herald website.
I woke up this morning and I was anxious for the Hearings in the 9-11 case to begin.
To The Courtroom All of the NGO’s walked over to the courtroom at about 8:15 AM. After proceeding through security, I sat in the gallery about 15-20 minutes before the Hearing started.
I was assigned to seat 12 and it was almost unreal, being behind the window, only yards away from 9/11 defendants.After reading the 9/11 Commission Report and other articles pertaining to the attack, it felt very strange to be sitting behind the alleged defendants of the deadliest terrorist attack in U.S history.
As I looked through the window that separated the observers from the accused, I was able to distinctly see all 5 defendants.
Khalid Shaid Mohammad (KSM) is at the first table.
Walid bin Attash is at the second table.
Ramzi Binalshibh is at the third table.
Ammar al-Baluchi is at the fourth table.
Finally, Mustafa al Hawsawi is at the fifth table.
As the defendants were brought into the courtroom, each was accompanied by 4 guards (2 on each side of each defendant).
Speaking of guards, there were a lot of guards in the courtroom.
Fair Trial if Each of 5 Defendants Has 4 Guards in the Courtroom If this case ever does go to trial, I wonder if the defense counsel for each defendant will ask that the guards leave because it impacts their clients ability to receive a trial by an impartial jury. If there are guards surrounding the prisoners and the Commission Members (Jurors) are allowed to see this, then the defense may argue that their clients will not receive a fair trial because the Commission Members cannot be impartial when each defendant has 4 guards escorting him and at least 20-25 guards in the entire courtroom. That is an issue that may be brought up in the future, but for now I am going to focus on the matters at hand.
The Judge Enters Courtroom — The Proceedings Begin — “40 Seconds Into The Future” Judge Pohl entered the courtroom and began the proceeding by reading each defendant his rights. All 5 defendants said they understood their rights. It is weird sitting in the gallery because what is known as “looking 40 seconds into the future” happens. According to Ammar al-Baluchi’s defense team, this is the sensation created by watching the hearing from the gallery where the live action is 40 seconds in the future relative to what is shown on the television. It definitely takes a couple of minutes to get used to. After all 5 defendants acknowledged their rights, the hearing got very interesting!
Competency of One of the Defendants First, Judge Pohl addressed the Prosecution’s ex parte motion 152v, which related to the 909 issue of Ramzi Binalshibh’s competency. The Prosecution filed the ex parte motion of Sunday, 13 April 2014. After the Government made its request, Mr. Jay Connell, learned defense counself for Ammar al-Baluchi, objected to the ex parte hearing because he said it fell outside the narrow ex parte rules.
FBI Allegedly Creates Conflict of Interest by Interaction With Defense Team Liaison? At this point, Mr. Harrington, learned defense counsel for Ramzi Binalshibh, noted that he filed an emergency motion to abate the proceedings on Sunday evening. This could potentially cause the proceedings to be halted for the rest of the week because it has huge implications!
In the Motion, the defense team for Binalshibh, said that their Defense Security Officer (DSO) was visited by two FBI agents on 6 April 2014 and asked to sign an agreement with them. The DSO is a civilian whose job includes assisting (more…)