Year: 2014

Next Week’s Guantanamo Hearings – Hattie Harman

Defendant Abd al Hadi al Iraqi

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

Hearing Agenda

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

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

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

My Role at the Proceedings

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

Attend the hearings each day as an informed observer.
- This requires a substantial commitment in terms of personal time and resources, including arranging for travel to Andrews Air Force Base, completing numerous government and MCOP documents, researching the status of the case and the motions to be heard next week, and reading and studying the Guantanamo Bay Fair Trial Manual prepared by MCOP.
Objectively and with an open mind observe the proceedings and interact with stakeholders present on site (including prosecutors, defense counsel, press, and other NGOs) to glean as much information as possible about the experiences of all stakeholders holding rights to fair proceedings at Guantanamo.

Analyze the hearings.
- My observer’s role on behalf of MCOP is to analyze to proceedings not so much from a substantive legal perspective, but rather to focus on the various fair trial rights of all stakeholders to the proceedings.

Critique the hearings.
- This includes identifying both positive and negative aspects of the process, both in the abstract (e.g., as compared to other judicial processes) and in practice at the hearing site. Where possible, assess the fairness of the proceedings with regard to the various stakeholders.
Report on the hearings.
- Disseminate, through the Gitmo Observer and otherwise, information about the hearing process and the fairness of the proceedings. Prepare a report for MCOP upon my return.

Pre-Departure Tasks

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

Wrapping up the week of al Nashiri GTMO hearings – Charles Dunlap

Watching the press conference from the NGO lounge. Note the picture is of the GTMO courtroom that was used for the hearings.

Press Conference

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.

Radio GITMO

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.

Conclusion

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.

Al-Nashiri GTMO Hearings – 5 – 6 November 2014 – Charles Dunlap

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.

For those interested in looking at the specific pleadings, transcripts etc. you can find them at http://www.mc.mil/CASES.aspx).

It’s a Small World – by Hattie Harman

Preliminary Preparations

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.

Day 2 at GITMO – Al Nashiri Hearings – Tues., 4 November 2014 – Charles Dunlap

NGO Boat tour of Guantanamo Bay

Hearings delayed

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

show.

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.

GTMO Base Commander’s House

Sea-life at GITMO

Meeting with Chief Prosecutor – Part II – Wednesday

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.

Declassifying information

• 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.

Future Updates

I will also be posting future updates from the subsequent day’s activities of this trip.

Day 1 – Meeting with Gen. Martins, Chief Prosecutor Post 1 of 2 -Charles Dunlap

NGO Meeting with Chief Prosecutor General Martins

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.

More to come tomorrow….

Arrival at GTMO for al Nashir hearings – 3 November 2014 – Charles Dunlap

My Trip to Guantanamo Bay

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.

Copy of Guantanamo Bay Fair Trial Manual.

I also took the opportunity to pass out copies of the Guantanamo Bay Fair Trail Manual for U.S. Military Commissions that Prof. George Edwards and his Indian a University McKinney School of Law students have been working on. The Manual was much appreciated by everyone, and will be very useful for all the NGO’s during the hearings.

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)!

Headed to Gitmo – Chuck Dunlap

Chuck Dunlap's Boarding Pass - Andrews Air Force Base to GTMO - 3 November 2014

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.

Indiana Lawyer Lectures Before Guantanamo Bay Mission

Chuck Dunlap - Lecture - Indiana University McKinney School of Law - 31 October 2014

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.

Guantanamo Bay Fair Trial Manual

MCOP monitors are expected to use the Guantanamo Bay Fair Trial Manual as 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.

Professor Edwards and Mr. Dunlap and stack of Guantanamo Bay Fair Trial Manuals Mr. Dunlap will carry to Guantanamo Bay for NGO Observers to use in assessing fair trial rights. Copies of the draft Manual can be downloaded from www.GitmoObserver.com.

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.

Ambassador, Congressman, Law Professors & Journalist Discuss Guantanamo Bay’s Future

From left Dean and former U.S. Ambassador to Poland Lee Feinstein, Miami Herald Senior Correspondent Carol Rosenberg, Professor Edwards of The Gitmo Observer, Special Assistant to the International Criminal Court Prosecutor Professor Leila Sadat, and former Congressman Lee Hamilton who was Vice Chair of the 9-11 Commission.

From left Dean & former U.S. Ambassador to Poland Lee Feinstein, Miami Herald Senior Correspondent Carol Rosenberg (@CarolRosenberg), Professor George Edwards of The Gitmo Observer (@GitmoObserver), Special Assistant to the International Criminal Court Prosecutor Professor Professor Leila Sadat, and former Congressman Lee Hamilton who was Vice Chair of the 9-11 Commission.

The Guantanamo Bay detention facilities and U.S. Military Commissions were intensely discussed at a panel hosted by the Indiana University School of Global and International Studies.

Panelists spoke about the rationale and feasibility for closing Guantanamo’s detention facilities, how the international community views Guantanamo and its trials, insights from a journalist who has covered Guantanamo Bay since the first detainees arrived in January 2002, and measuring whether all Guantanamo Bay stakeholders’ human rights are being afforded to them.

Former Indiana Congressman Lee Hamilton, who was Vice-Chair of the 9-11 Commission, discussed the US government rationale for the shutting down of Guantanamo Bay and the difficulties in effecting such closure, from a Washington perspective. He described political and logistical challenges to a rapid closure.

Ms. Carol Rosenberg, who is Senior Correspondent for The Miami Herald, was in Guantanamo Bay to witness the January 2002 arrival of the first group of approximately 20 detainees, who were housed in “Camp X-Ray” wearing iconic bright orange prison. Ms. Rosenberg spoke about the history of the detention facilities, and its past, current and future challenges. She further elaborated on her perspective as a journalist assigned to the Guantanamo Bay.

Professor Leila Sadat, of the Washington University School of Law, is Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow, Director of the Whitney R. Harris World Law Institute and the Special Adviser on Crimes Against Humanity to the ICC Prosecutor. She provided a perspective on how the international community, outside of the U.S., views Guantanamo Bay and its Military Commissions.

U.S. Ambassador to Poland (former) Lee Feinstein, who is Founding Dean of the School of Global and International Studies, provided perspective given his many years of diplomatic and international law public experience and research. Dean Feinstein moderated the panel.

Professor George Edwards is founder of The Gitmo Observer, which is also known as the Military Commission Observation Project (MCOP) of Indiana University McKinney School of Law. Professor Edwards spoke on “Assessing Human Rights Protections for All Guantanamo Bay Stakeholders, Not Just the Rights of the Defendants”.

Professor Edwards descried how he founded the Indiana University McKinney Law School’s Program in International Human Rights Law, and how the Pentagon’s Convening Authority selected that program to be granted non-governmental observer status to permit it to send representatives to Guantanamo Bay to monitor hearings in person, or to Ft. Meade to monitor via secure video feed. Professor Edwards created then created the Military Commission Observation Project, which is now known as The Gitmo Observer. He talked about The Gitmo Observer’s most recent project, the Guantanamo Bay Fair Trial Manual, which those who monitor the Guantanamo Bay proceedings and process use to determine whether a fair trial is being held.

The panel was held at the University Club, at the Indiana Memorial Union, with a reception that followed in the Faculty Room.

_______

GUANTANAMO BAY TRIP PREPERATION – AL NASHIRI HEARINGS By Chuck Dunlap

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

Plans for Future Blogging

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

Stakeholders may vary across Guantanamo Bay proceedings – Hattie Harman

My upcoming mission to Guantanamo Bay

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

Guantanamo Bay Fair Trial Manual

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

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

On June 24, 2007, while on the Presidential campaign trail, Illinois Senator Barack Obama stated to a crowd in Texas, “We’re going to close Guantanamo. And we’re going to restore habeas corpus.” Now President Barack Obama is trying to honor that promise.

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

The provision reads:

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

Veto?

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

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

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

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

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

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

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

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

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

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

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

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

My Interest in the Guantanamo Bay Military Commissions

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

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

Jeff Papa at Camp Justice, holding Indiana folder.

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

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

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

Hadi

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

Hadi al Iraqi Hearing commences at GTMO – Jeff Papa

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

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