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 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.”
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.
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. (more…)
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.
The Military Commission hearing pre-trial motions in the U.S. government’s case against Abd al Hadi al-Iraqi reconvened Wednesday, November 18 at 1:00 p.m. 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. Before convening today, Commission Judge Captain Kirk Waits conducted conferences with the parties on various issues including some anticipated to arise on Wednesday.
Defense Motion AE 21 – Contact with Female Guards
The first issue addressed was the status of defense motion AE 21 requesting that female guards cease certain physical contact with Hadi. The Commission previously granted Hadi’s motion on a temporary basis and the motion was expected to be argued on the merits in this week’s session. But apparently at Tuesday’s conference it became apparent that Hadi’s defense team had been unable access certain evidence that it intended to use in support of its motion. Specifically, Hadi objects to being touched by unrelated females based on his religious beliefs. The government argues that the operational security needs of the detention facility require the use of some female guards. The offensive touch typically occurs during the shackling process when Hadi is being moved from his cell to another location. Apparently in October when Hadi so objected to being shackled by female guards, he was “forcibly removed” from his cell over his objection. A video of this forcible removal exists and has been in the possession of the prosecution team for over two weeks. However, due to problems with the security process (due to the highly classified nature of the video), the defense team was unable to view this evidence until just before Tuesday’s hearing. Additionally, the defense has not yet been provided access to witnesses to the touching and to evidence and/or witnesses confirming the security needs of the detention facility. While the government argued vigorously against extending the time for argument on this issue, the Commission seemed to recognize that the defense could not present a viable substantive argument on the issue without more discovery. The Commission noted that if Hadi is presented with the choice of being shackled by a female or forgoing a meeting with his defense counsel, Hadi’s beliefs apparently prevent him from meeting with counsel or attending his own proceedings. “That is the most basic of due process,” said Judge Waits. And in addition to these rights being recognized under the United States Constitution, they are recognized under numerous internationally binding treaties as well as the Military Commissions Act itself. But also seemingly recognizing that the government has an interest in operating its corrections facilities in a safe, effective, and efficient manner respecting the rights of all genders to equal employment opportunities, the Commission ordered the parties to submit additional briefing on the issue prior to the next scheduled set of hearings in late January.
Defense Motion AE 20 – Article 5 Status Hearing or Dismissal for Lack of Personal Jurisdiction
After wrapping up the briefing schedule for the access to witnesses issue, the Commission issued an oral ruling on one of the motions argued Monday, AE 20. Readers may recall that this motion concerned the defense’s request that Hadi is entitled to a hearing pursuant to Article 5 of the Geneva Conventions in order to determine his status and thus what type of tribunal may try him for the alleged war crimes. Hadi contends that he should be presumed a prisoner of war (POW) and thus may not be tried by a Military Commission. He asked for a determination be made pursuant to Article 5 which provides a particular procedure with a specially constituted panel for determining status. The government argued that Hadi is clearly an unlawful enemy belligerent subject to the jurisdiction of the MCA and no further status determination is needed. Rejecting both parties’ positions, Judge Waits on Wednesday granted the defense’s alternative request, which was that the Commission itself make a determination as to Hadi’s status for purposes of jurisdiction.
Rule 802 Scheduling Conference, Courtroom Tour, and Visit to Camp X-Ray
No open courtroom proceedings occurred on Wednesday, but the parties and the Commission held a Rule 802 scheduling conference to hammer out the way forward and to prepare a plan for the next set of hearings which will occur in late January. The non-governmental observers (NGOs) of the hearings thus had a day devoted to learning more about the facilities associated with the hearings and the detainees. First we were given a detailed tour of the courtroom complex and its related facilities, including the cells used to house detainees on days when they make an appearance in court. Next, the Joint Task Force Public Affairs Office graciously led the NGO observers on a tour of now-closed Camp X-ray.
NGOs being led through Camp X ray by Army personnel.
This area was used in the 1990s to temporarily house the large influx of Haitians arriving at Guantanamo seeking refuge in the United States. For a period of spanning late 2001 and early 2002, Camp X-ray was used to house detainees who were captured in conjunction with the U.S. actions in Afghanistan and elsewhere after the 9/11 attacks. The conditions were quite primitive, and essentially consisted of a small, covered area enclosed by chain link fence for each detainee.
View of a row of detainee housing at now-closed Camp X ray
The entire camp was of course heavily guarded and surrounded by concertina wire, most of which still appears to be in place. Fortunately, the government constructed a series of newer, more humane detention areas to house the detainees when it became apparent the situation was not going to be temporary. Camp X-ray is being conserved in its present state for historical and legal purposes.
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 Manualaddresses 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
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.
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.
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.]
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!
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.
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.
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
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.
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 Manualto 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 Manualis 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.
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.
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.
I will depart Indianapolis for Washington, D.C. on Saturday and am ordered to arrive at Andrews Air Force Base (more…)
Watching the press conference from the NGO lounge. Note the picture is of the GTMO courtroom that was used for the hearings.
After the hearings were over for the week in the al Nashiri case (4 – 7 November 2014), the prosecution and the defense teams held a brief press conference with the four media representatives who were with us at GTMO for the week.
Victims and Victims’ Families
During the press conference, the victims and their families had an opportunity to also speak to the media. When the victims and their families spoke it was a reminder of what this trial is all about and the 17 people that died on the USS Cole and the 39 wounded. During the hearings it is easy to get caught up in the “legal arguments” and the various details and tactics and lose sight of why we are here. For me, hearing the victims and their families at the press conference really made me re-focus on them and their experiences. In addition to the overall suffering that they have been through, the main point that they expressed was their frustration with the slowness of this process and their desire for there to be an end to this and to see justice done.
Last Days Events
NGO’s gather for a farewell cookout and a chance to reflect on the weeks events.
On the last days of the trip, we had an opportunity to do several things.
Time with Defense Team – Rick Kammen and defense lawyers
The NGOs spent an hour and a half with Rick Kammen and the defense team. They were extremely generous with their time and were able to answer many questions about the hearings we had observed.
Again, some of the overall themes from that meeting were similar to others; the incredibly difficult logistics and the high costs that result; the complicated issues associated with the case which are compounded with the issue of classified information; and also how politics at the highest levels impacts the trials. Speaking specifically to this last point, Rick talked about a time when the former leader of Yemen was in the United States to receive medical care and the defense team tried to depose him. The US State Department denied it due to their policy of not wanting to impose on foreign leaders in the US who are here for medical treatment.
Visit to Camp X-Ray
The NGOs also had an opportunity to visit Camp X-Ray, which is the outdoor detention facility where they held the detainees when they first arrived. We were not able to take photos of the site but we were able to see it. It is abandoned now but there is a federal court order in place to preserve it as evidence in some of these proceedings. Camp X-Ray was only used to house the detainees for a few months when they first arrived on the base because they didn’t have any other facilities to house them in at the time. Within a few months they were moved to more permanent structures indoors.
Another place NGOs were able to visit and tour was radio GTMO. The base has a radio station that broadcasts 3 channels on the base. They have an arrangement with Cuba so the signal is not broadcast into mainland Cuba. The radio station has one of the largest collections of vinyl records in the world with many being extremely rare and limited editions. The stations still plays the records on the air. One unfortunate fact is that due to the licensing rights from the record companies, if the records are taken out of circulation they must be sent back to the record companies where they would be destroyed. It’s crazy to think that some of these one of a kind records made especially for the military would be lost forever and destroyed but that is what is required due to the licensing rights.
Some of the one of a kind vinyl albums that Radio GITMO still plays
One of the last few stops was to the abandoned lighthouse on the edge of the base. One of the interesting things was the collection of old boats that was in the area which were used by people who fled Cuba or other areas to try and immigrate to the United States.
The abandoned lighthouse with some of the old boats that people used to defect to the base.
I want to thank Professor George Edwards and the Indiana University McKinney School of Law for allowing me to participate in this incredible experience. It is something I will remember forever and a trip that has given me so much information. There are so many things that I was not able to include in this blog but that I will try and address in other forums since one of the goals of the NGO program is for those that witness the process to tell others.
Chuck Dunlap with Rick Kamman, Chief Defense Counsel for Al-Nashiri
Now that I have reliable internet access I wanted to post the remainder of my blog entries from my trip. First about the hearings themselves. The hearings took place Wed. & Thurs morning Nov. 5-6. Rather than go into detail about all ten of the motions I will try to give an overview and summary of the proceedings.
Range of Motions
The hearings were scheduled for two days and actually ran for 1 1/2 days. Of the ten issues, they can be summarized as follows;
dismissal of the death penalty since the defendant will not have access to classified evidence against him;
abatement of proceedings due to lack of adequate medical care for defendant
defense request to have access to an MRI machine to assess the defendant’s mental state
request for the defendant to have a Skype call with his parents
motion to withdraw the death penalty because it is no longer a military necessity
motion to suppress evidence due to lack of Miranda warning
motion to exclude hearsay evidence
other more procedural motions
Themes –Logistical Issues
Overall, the hearings were much like you would see in any court. However, one of the strong themes that came out of the hearing days was how the logistical challenges of being at Guantanamo Bay impacted everything and made things more challenging (and costly). The logistics of having all of the court personnel travel to the base, combined with some of the limitations once at the base were very evident.
Another theme was the uncertainty on some of the procedures and trial logistics. The parties often referred to the Military Commissions legislation but often there was no specific guidance on some of the more detailed points and issues so the parties had to look to other authority like federal courts.
Schedule Going Forward –
The parties also worked with the judge to try and plan out the new schedule going forward. The next big event will be pretrial hearings scheduled for February when the parties are set to begin arguments focused on the government’s efforts to introduce 72 hearsay statements which constitute the bulk of their case. Since the standards for hearsay are different in Military Commissions, this will be one of the main pretrial events.
Hattie Harman and Traci Cosby — Both going to Cuba this month
As I read Chuck Dunlap’s blog posts this week, I find myself looking more and more forward to my upcoming trip to Guantanamo for the next round of hearings (Nov. 17-19, 2014). Chuck is an Indiana University McKinney School of Law graduate who works at the Indiana Bar Foundation, and he is at Guantanamo Bay this week monitoring the hearings in the case of al Nashiri, who allegedly masterminded the 2000 attack on the USS Cole that killed 17 sailors off the coast of Yemen.
I will be monitoring a different case, that of Hadi al Iraqi, who was alleged to have run al Qaeda’s army in Afghanistan, was arraigned this past summer, and his pre-trial hearings are at an early stage.
Yesterday I received instructions from the Pentagon to help me prepare for my mission, including information about the logistics of eating, sleeping, and – most importantly – viewing the proceedings. Reading Chuck’s posts and seeing his photos makes it seem more real all the time!
And I have been especially fortunate this past week to have had short conversation with Indiana Supreme Court Justice Steven David about the Naval Station itself and his experiences there. Justice David, is his position as an Army Colonel, previously served as chief defense counsel. Of course, our conversation was quite limited due to the nature of the subject but it was nonetheless very helpful and exciting to meet with someone who has had his “boots on the ground” at Guantanamo.
Two Views of Cuba
Although I won’t be leaving for Cuba for another week, my good friend and co-worker Traci Cosby is leaving tomorrow for Havana. Traci will be part of a delegation from the American Bar Association Section of Dispute Resolution spending several days in Havana meeting Cuban dignitaries and learning about the Cuban legal system.
How strange it is that two friends and close co-workers would end up – entirely independently – traveling to Cuba in the same month! Obviously, Traci’s and my experiences of Cuba will be very different. But I look forward to swapping stories with her when we both return.
We arrived at GTMO on Monday, but hearings did not begin until Wednesday. So had some time today (Tuesday) to get some logistical tasks done and have some tours. We began by having breakfast at the base commissary. All you can eat buffet for $2.55, not bad. We then all came back to get our credentials that will get us access to the courtroom for the hearings. Obviously there is a high level of security but the credentialing process was very smooth. The level of security in the area really ramps up on days of hearings when the defendant is brought to this side of the base from the detention facility located several miles away.
NGO’s “exploring” the bay (aka “fact finding mission”)
Boat tour of Guantanamo Bay
Once we completed the credentialing process, we went to one of the docks to get a boat for a tour of the Bay. We were divided on to 2 different pontoon boats with some military personnel who took us around to various parts of the bay. It certainly wasn’t a difficult assignment for any of us as the pictures will
Site of abandoned and demolished base hospital from WWII era
Dinner; It’s a small military base
After returning from the boat trip and getting cleaned up we went to dinner as a group at the Irish Pub on the island. To further demonstrate what a small place this is, the Chief Prosecutor General Mark Martins and his team were also having dinner there at the same restaurant, and sate at the table next to us. This can actually be a challenging issue (especially for the judge) since many stakeholders, including the victims’ families, fly down to GTMO together, use the same gym and facilities and restaurants, which can lead to potential issues of ex parte communication, among others.
Call it a day
After dinner we all went back to our tents to retire and get ready for the first day of hearings the next day which I will report on and post tomorrow.
The “NGO Lounge” at GITMO where NGO’s have a place to work (without Wi Fi though)
More on the NGO meeting with the Chief Prosecutor General Martins
To conclude a summary of our meeting with General Martins, Chief Prosecutor for the Military Commissions, here are several other topics we discussed in our meeting:
No Miranda warnings required
• One of the primary differences with the Military Commissions and traditional Article III Courts are the different standards regarding Miranda Rights and the admission of hearsay evidence. Generally the standards for admission of hearsay evidence and evidence gathered without first issuing a Miranda warning is less strict. Gen. Martins stressed that due to the nature of the environment where the evidence is collected (often in a theatre of war) there are not always trained law enforcement personnel available and therefore the standard should be different than in a traditional civilian law enforcement/Court setting. That being said, he reiterated that even though the standards may be “lower” there is still a threshold that must be met and not just anything can be admitted. There is still a need for the prosecution to prove that the evidence being proffered is reliable through a “totally of the circumstances” analysis and the defense has an opportunity to counter that through cross examination etc. which is all set forth in the MCA of 2009.
Timetable for al Nashiri trial
• One specific question from the group was when he thought the actual trial would begin for Al-Nashiri. Gen. Martins indicated that he anticipated that at the current pace and posture of the case, the trial could begin in the fall of 2015.
Evidence generated from “enhanced interrogation”?
• In addition, he also noted that for the government’s case it will use no testimony generated from any enhanced interrogation procedures.
• Gen. Martins also indicated that the government is under an obligation to declassify as much information as possible under the MCROE 505 and that they have been striving to meet that obligation. He also pointed to the volume of materials and direct resources and documents from the proceedings that are available for anyone to ready and review on the internet, and that they strive to make the entire process extremely open and public as the MCA requires.
Listening device disguised as smoke detector in attorney / client meeting room; FBI investigating defense team members
Some of the aL-Nashiri hearing NGO Observers at a table outside our tents. They stopped letting NGOs have wifi access at this location.
• In response to a question from the group, Gen. Martins discussed some of the particularly troublesome issue that some observers of the process have mentioned concerning the revelations of a listening device concealed in a smoke detector in a room where attorneys met and conferred with their clients at GITMO, as well as the FBI interviewing members of the defense team and having nondisclosure statements about the interviews so other members of the defense team would not know of the interviews occurring. The FBI issue is currently being litigated in the 911 case and Gen. Martins has walled himself off from that case so he wasn’t able to comment very much on that other to say that it was a legitimate issue from both sides and the judge is currently hearing arguments on it. Regarding the smoke detector issue, he indicated that the facts presented showed that the room was a multi-purpose room used for other detainee procedures where surveillance was necessary and the listening devices were not operative during the attorney client meetings.
ISIS / ISIL — Captured taken to GTMO?
• An additional question raised by the group concerned the current conflict with ISIS/ISIL in the middle-east and whether or not in the event any of their members were captured, would they potentially be transferred to GITMO to face a military commission. The General responded that it is an open question (and theoretical at this point) on how that would be handled. There are several issues associated with that question that all have to do with the limited jurisdiction of the military commissions based on the MCA of 2009. You would need to explore if they are affiliated with Al Qaeda, are they foreign nationals, are they unlawful enemy belligerents etc.
I will also be posting future updates from the subsequent day’s activities of this trip.
On the afternoon we arrived at GTMO for the al Nashiri hearings (Monday, 3 November 2014), the 10 NGOs met with Brigadier General Mark Martins, the Chief GTMO prosecutor. We met from 6:00 p.m. to 7:30 p.m.
We talked with him and his staff about what to expect in the Al-Nashiri hearings and about Military Commissions in general. Here is a summary of some our discussions, with more to come in future posts:
Criticisms of the Military Commissions
A main criticism of the Military Commissions is that many commentators believe that the Article III court system is better positioned to conduct these types of trials. Gen. Martins agreed that in most cases, Article III Courts can do an effective job. However, he said that in some cases, the Military Commissions were the best forum for several reasons, including the complexity of the cases, rules of evidence in a combat situation, and others (to be discussed in additional posts to come).
One issue that he pushed back on concerned media reports that “hundreds” of “terrorism” cases have been tried in federal courts in the same time that only a few have been tried in Military Commissions. His issue with this statement is that it does not tell the entire picture. His said that it is not an apples to apples comparison since only 15 of those cases were eligible for a Military Commission to begin with. In many cases of concurrent jurisdiction, it may be appropriate for the federal courts to handle the cases but Military Commissions are set up for the particularly challenging cases which is why they take a great deal of time. In addition, since federal legislation prohibits transferring detainees to the mainland, the Military Commissions are the only way forward with some of the cases based on the legislation creating the Military Commissions and providing them sole jurisdiction.
International Law and the Military Commissions?
Another issue discussed was the international law requirement for Courts to be “Regularly Constituted.” This presents a challenge since these Military Commissions were only created after 9-11 and while they are legislatively created and not Article II courts created under military / executive branch authority, some issues exist associated with their longevity and if they are in fact “regularly constituted.” This is one area where having a federal court (Article III) trial would alleviate this concern.
Continuing this post..
I plan to continue this post tomorrow when I have additional time with the Wi Fi.
Today (Tuesday, 4 November) was pretty much devoted to boat tour of the Bay and associated areas. Tomorrow (Wednesday, 5 November) we will be observing the first day of scheduled pre-trail hearings for Al-Nashiri.
Today, Monday, 3 November 2014, has been an eventful day.
The day began by arriving at Andrews Air Force Base at 7:00 a.m. to be escorted through the gate to the air terminal. After checking in and being issued my ticket I waited in the terminal until all the other NGO’s had assembled. While we were waiting (several hours) we introduced ourselves to each other. There are 10 NGO’s representing a variety of organizations from around the country who are participating.
The only other delay in getting ready to depart was a brief diversion outside while the Secret Service swept the terminal in preparation for Vice President Biden’s departure on a different plane.
Our flight to Cuba; Landing at GTMO
The flight to Cuba was uneventful. The charter flight was about 3 hours long (It would have been closer to 2 hr. 15 min. if Cuba permitted us to fly over the island).
Once we landed at Guantanamo Bay we unloaded and waited to go through document check in. From there everyone boarded vans to drive down to the dock to catch the ferry across the bay to the main part of the base. From there we were driven to Camp Justice which is a tent city that has been set up on the old WWII vintage runway that is no longer in use. We had some time to get settled into our bunks, fortunately while each tent sleeps 8 there were only 4 men and 2 male tents so we had plenty of room with just 2 per tent.
Arriving at Camp Justice — Our tent city home for the week.
After getting settled in, we made a trip to the base NEX to stock up on supplies. The NEX is pretty much like a small town Walmart and has all of the essentials. After that trip we headed back to our tents again and then rendezvoused shortly thereafter for our meeting with General Martins who is the lead prosecutor for the Military Commissions.
Meeting with General Mark Martins, Chief Prosecutor
I will post a blog that discusses this meeting in more detail, but I was extremely impressed with Gen. Martins and the few members of his team that he had with him. We had over an hour and a half with him and we were able to ask him pretty much anything we wanted. Even with some of the more challenging questions that were asked, he answered directly and faced some of the particularly challenging issues head on. Again, I will have a separate post covering this meeting.
Some of the tents in Camp Justice. It is built on an abandoned WW II air strip.
A Jamaican Dinner; Day’s End; Tomorrow
After our meeting with Gen. Martins we all loaded into the van for a short ride to the Jamaican Jerk Chicken restaurant. The food was great and we enjoyed the very pleasant evening weather. From there it was back to Camp Justice for a few conversations among the group about our day so far and our meeting with Gen. Martins.
My bed in my Camp Justice tent.
Based on the current itinerary, we are scheduled to reconvene for breakfast tomorrow (Tues.) get our credentials, possibly have a boat tour around the base and work on some of our various projects.
What About WiFi?
I have to say that the internet issue is as bad as I had been warned it was. It seems like everywhere we go everyone is checking their phones and computers to see if we have stumbled on a Wi-Fi signal that we can access. When we are lucky enough to get a signal the speed is extremely slow.
Hopefully, I’ll be able to post this sometime tomorrow (Tuesday)!
Chuck Dunlap’s Boarding Pass for his flight from Andrews Air Force Base to GTMO – 3 November 2014
Chuck Dunlap arrived at Andrews Air Force Base around 6:00 on the morning of Monday, 3 November 2014 for his flight to Guantanamo Bay, Cuba to monitor the U.S. Military Commission hearings in the case of al Nashiri, an alleged mastermind of the 2000 suicide bombing of the U.S.S. Cole off the coast of Yemen.
Mr. Dunlap had difficulty posting a post this morning, so we are re-posting his Andrews’ photos. He will post again upon his arrival at GTMO later today.
At Andrews Air Force Base. This is the chartered plane that will take Chuck Dunlap from Andrews to GTMO today.
This morning, Mr. Dunlap reported “We had a brief delay waiting for VP Biden’s plane to leave.” So, they were expected to arrive at Guantanamo Bay later than expected.
Chuck Dunlap lectures in Professor George Edwards’ International Criminal Law class. Students in the class have conducted research on fair trial rights to incorporate into the Guantanamo Bay Fair Trial Manual.
Days before his mission to the Guantanamo Bay Naval Station (GTMO), Charles (Chuck) Dunlap lectured about the Military Commission hearings he will monitor at the remote military outpost on behalf of the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law. Mr. Dunlap is scheduled to observe pre-trial hearings in the case against Abd al-Rahim al Nashiri, who is alleged to be a mastermind of the 2000 suicide attack on the U.S.S. Cole off the coast of Yemen. The attack killed 17 U.S. sailors and wounded several dozen.
The Military Commission Observation Program has been sending Indiana McKinney School of Law to monitor hearings at Guantanamo Bay and at Ft. Meade, Maryland, where the GTMO hearings are simultaneously video-cast on secure lines. The MCOP mission is for IU McKinney students, faculty, staff and graduates to attend, observer, analyze, critique, and report on pre-trial hearings and trials.
MCOP monitors are expected to use the Guantanamo Bay Fair Trial Manualas a tool to help them ascertain whether they believe that all Guantanamo Bay Stakeholders are receiving a fair trail. the Manual lists dozens of fair trial rights that are to be afforded to the prosecution, victims and victims families, the defendants, the press, security and other personnel who work with the prisoners and with the court, the U.S. public, and others.
IU McKinney Law Students Assist in Fair Trial Project
IU McKinney law students enrolled in Professor George Edwards’ International Criminal Law class have been conducting legal research that is being incorporated into the Guantanamo Bay Fair Trial Manuals. Mr. Duncan met with students in the class, lectured on issues to be raised during the al Nashiri hearings during his mission, and discussed with the students their research. Each student in the class has been assigned one or more specific fair trial rights to explore, and the students are examining the international law and domestic U.S. law that define the rights in the Guantanamo Bay context.
Mr. Dunlap traveled to Ft. Meade several months ago to monitor Guantanamo Bay hearings. The MCOP, which is also known as The Gitmo Observer, is part of the Indiana University McKinney School of Law Program in International Human Rights Law. Professor Edwards is the founder of the Program in International Human Rights Law, and the MCOP / Gitmo Observer.