Month: February 2015

Guantanamo NGO Observers from IU McKinney Law School Featured in Indiana Lawyer

Military tribunals for some accused of terrorist attacks on the United States are held at Camp Justice at Guantanamo Bay. (Photo by Catherine Lemmer, IU McKinney School of Law)

Military tribunals for some accused of terrorist attacks on the United States are held at Camp Justice at Guantanamo Bay. (Photo by Catherine Lemmer, IU McKinney School of Law)

The Indiana Lawyer published the following article by Marilyn Odendahl on 25 February 2015. Text and photos are in the original article.

IU McKinney Gitmo Observers Illuminate Murky Proceedings in Gitmo Trials

by. Marilyn Odendahl (25 February 2015)

      The U.S. Military Commission Observation Project overseen by Indiana University Robert H. McKinney School of Law is continuing to send individuals to watch and report on the accused terrorists’ trials being held at Guantanamo Bay. Blog posts and articles from the observers chronicle the glacial pace of the proceedings, the unexpected courtroom twists and the nagging constitutional questions.

Professor George Edwards

Professor George Edwards

The project regularly sends faculty, students and alumni to either Guantanamo Bay or Fort Meade in Maryland to observe the tribunals. Professor George Edwards, founder and director of the project, explained the work of the observers is not to address the political issues or comment on the substance of the military commissions.

“We’re interested in seeking to assess whether the stakeholders are receiving the rights and interests that are afforded to them,” Edwards said. “(Those rights) include the right to a fair hearing, the right to an independent tribunal, the right to trial without undue delay.”

He pointed out the observers also are looking at the stakes that the victims of the terrorists attacks and their families have in the proceedings. What about their rights to have access to the trials, to make statements, to confront and to have closure?

Professor Catherine Lemmer

Professor Catherine Lemmer

IU McKinney librarian Catherine Lemmer, who Edwards described as instrumental in helping to build the observation program, heard some victims’ voices when she traveled to Guantanamo Bay for the hearings of the alleged co-conspirators of the Sept. 11, 2001, attacks.

One man said he was attending the proceedings to remind the judge and attorneys that planes had flown into the twin towers of the World Trade Center and the Pentagon. A mother of a fallen firefighter said she was struggling to hang on to her opposition to the death penalty, but she believed the trials had to be fair because the United States would be judged by how it handles the detainees.

The project drew praise from panelists who participated in a recent forum at the law school examining the tribunals. Hosted by the Indiana International & Comparative Law Review, the symposium brought together legal scholars from IU McKinney and around the country to discuss whether the end is coming for Guantanamo Bay or if the practice of international criminal law has reached a turning point.

An IU McKinney symposium examined trials at Guantanamo Bay. Panelists included (from left): Richard Kammen, Kammen & Moudy; Shahram Dana, The John Marshall Law School; George Edwards, IU McKinney; and Paul Babcock, editor-in-chief of the Indiana International & Comparative Law Review. Chris Jenks of Southern Methodist University Dedman School of Law participated via video link. (Photo by Dave Jaynes, courtesy of IU McKinney Law)

An IU McKinney symposium examined trials at Guantanamo Bay. Panelists included (from left): Richard Kammen, Kammen & Moudy; Shahram Dana, The John Marshall Law School; George Edwards, IU McKinney; and Paul Babcock, editor-in-chief of the Indiana International & Comparative Law Review. Chris Jenks of Southern Methodist University Dedman School of Law participated via video link. (Photo by Dave Jaynes, courtesy of IU McKinney Law)

Two participants – Shahram Dana, associate professor at The John Marshall Law School and Chris Jenks, assistant professor at Southern Methodist University Dedman School of Law – on the second panel discussion both noted IU McKinney’s effort in documenting the proceedings at Guantanamo Bay is shining a light on America’s response to terrorism and will be an invaluable resource for history.

Lemmer advocates for the proceedings to be shown on C-SPAN. The American public should see for themselves, she said, so they form their own opinions. By seeing what is happening in that courtroom, she said it is easy to realize how things could go wrong.

“The role of the attorneys, our role (as citizens) is to hold fast to the Constitution when really bad things happen and everybody wants to step over it,” Lemmer said. “Ultimately, the price we pay for not doing it right is incredible. This is our Constitution and it is getting overwhelmed, which should not happen.”

Lemmer took her first trip to Guantanamo Bay in December 2014. However, the proceedings were derailed by the ongoing revelations that the Federal Bureau of Investigation may have infiltrated the defense teams. The FBI is accused of listening to defense attorneys’ meetings with their clients and reviewing their correspondence as well as attempting to turn legal team members into informants.

When she returned in early February 2015, the FBI conflict-of-interest issue was still being argued. Then unexpectedly, Ramzi Bin al-Shibh, one of the defendants in the courtroom, said he recognized his interpreter as someone he encountered during the period he was held at one of the Central Intelligence Agency’s secret prisons. Another defendant told his attorney he also remembered the interpreter from the black site.

“It became very surreal,” she said.

To Indianapolis defense attorney Richard Kammen, the confusion and conundrums that swirl around Guantanamo Bay could be resolved by moving the proceedings to federal court. Kammen, lead counsel for USS Cole bombing suspect Abd al-Rahmin al-Nashiri, pointed to the hearings of accused Boston Marathon bomber Dzhokhar Tsarnaev as an example that U.S. courts can handle high-profile terrorism cases.

“There’re so many more moving parts down there than there would be in federal court, so things just get more messed up,” he said.

Currently, Kammen and his defense team are tangling with the federal government to release the details of the treatment of al-Nashiri while he was kept in a black site. The release of the CIA Torture Report publicly confirmed that the defendant had been physically, psychologically and sexually tortured, but Kammen said the defense still needs details of what was done and when.

Professor Tom Wilson

Professor Tom Wilson

IU McKinney professor Lloyd “Tom” Wilson is scheduled to observe the al-Nashiri proceedings during his first trip to Guantanamo Bay. The task of watching and relaying what is happening will be difficult, he said, because he will be seeing just a snapshot of a long, complex and secretive process.

Wilson was careful in his preparation for the trip, not wanting to form any preconceived ideas or prejudices before he arrived in the courtroom. He is going out of a sense of civic duty and to understand the situation better than he does now.

Still, the proceedings are not easy to comprehend and continue to spark debate many miles away from the detention camp.

As part of his remarks during the IU McKinney symposium, Kammen described Guantanamo Bay as a “law-free zone.”

Co-panelist Jenks countered that characterization, arguing traditional rules governing the treatment of prisoners of war have been upended by terrorism. In previous conflicts, nation states battled each other but now the United States is fighting against groups that are unconnected with any organized government or country. Even so, he continued, the detainees at Guantanamo Bay have a right to counsel and are being given a trial.

Kammen responded that even if his client is acquitted, he will not be released.

“That,” Kammen said, “is a law-free zone.”

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The original Indiana Lawyer article can be found here:  http://www.theindianalawyer.com/iu-mckinney-gitmo-observers-illuminate-murky-proceedings-in-gitmo-trials/PARAMS/article/36436

9/11 Commissions Halted Due to Unlawful Influence

Today, February 25, 2015, Chief Judge Colonel James Pohl, U.S. Army, ordered a halt to the case against the 9/11 defendants at Guantanamo Bay with his finding that Department of Defense officials tried to unlawfully influence the military commissions judiciary.  You can read today’s ruling here on the Gitmo Observer. Judge Pohl ordered “abatement” of the case until the rule change is rescinded by the proper authority. The prosecution has five days to appeal the new order, if it chooses to do so.

Judge Pohl ruled that the actions by the Deputy Secretary of Defense, acting upon the recommendations of the Convening Authority, constitute at least the appearance of an unlawful attempt to pressure the military judge to accelerate the pace of litigation and an improper attempt to usurp judicial discretion, thereby compromising the independence of the military judge.

The ruling arises out of the December 9, 2014 memorandum of Major General Vaughn Ary, U.S.M.C. (Ret.), the “Convening Authority” in charge of the military commissions at Guantanamo, to Deputy Secretary of Defense Robert Work asking him to require military commission judges to relocate to Guantanamo Bay “to accelerate the pace of litigation.”  On January 7, 2015, the Deputy Secretary of Defense issued the rule change requested by the Major General Ary.

On January 30, defendants in the 9/11 case filed a motion to dismiss the case for unlawful influence over the military judiciary. Judge Pohl ruled on their motion today.

Alleged Unlawful Influence Over Guantanamo Bay Judges

Judge Vance Spath presides over the al Nashiri case.  He is hearing arguments on whether Pentagon officials exercised "unlawful interference" over him. (Photo from Miami Herald)

Judge Vance Spath presides over the al Nashiri case. He is hearing arguments on whether Pentagon officials exercised “unlawful interference” over him. (Photo from Miami Herald)

In Monday afternoon’s court session in the Guantanamo case involving the alleged mastermind of the 2000 USS Cole suicide bombing case, the defense claimed that Pentagon officials were interfering with the judge’s independence, threatening to undermine the entire case. The judge, Air Force Col. Vance Spath, is conducting further inquiry before determining whether unlawful interference exists, and if it does, what the remedy should be.

The defendant, al Nashiri, was arraigned several years ago, and there have been many delays in this death penalty case. The officials stated in e-mails and other communications that they wanted the case to move more quickly, and one official signed an order commanding the judge to change from part-time to full-time on the case, and to physically relocate to Guantanamo Bay until the case was finished, which could be many months or years.

The defense argued that only the judge controls the pace of the trial, and it is “unlawful interference” for a non-judicial official to seek to interfere with a judge’s command of his courtroom.

Most participants commute to Guantanamo Bay

Virtually all participants in the Guantanamo Bay cases live in the U.S. mainland, and commute to Guantanamo Bay for hearings. This includes the defense and prosecution lawyers, the court staff, the press and the NGO Observers, and the interpreters. The judges in this and the other two active cases are the only ones ordered to move to Guantanamo Bay. The chief prosecutor, who is a Brigadier General Mark Martins, was not ordered to move to Guantanamo, and neither were other military officers assigned to work on the cases.

Vaughn Ary - https://www.linkedin.com/pub/vaughn-ary/3b/644/b7

Retired Major General Vaughn Ary

Stalled hearings

Judge Spath halted the hearings mid-afternoon after ordering the Pentagon official who made the order to testify about the order. That official, called the Convening Authority for the military commissions, is Retired Major General Vaughn A. Ary. Judge Spath said General Ary could fly to Guantanamo Bay to testify, or he could testify by video. His testimony is expected as early as tomorrow, Tuesday, 24 February 2015.

What is “unlawful interference” with the judge.

The Guantanamo Bay Fair Trial Manual discusses law related to “unlawful interference”, and the independence of judges, and identifies a checklist of questions to ask in seeking to determine whether judges’ independence has been compromised. Under international and domestic U.S. law, judges are required to be independent, and are required to appear to be independent. Outside, objective observers should be able to view a judge and his decisions and not be concerned about whether some outside, non-judicial entity is “pulling the strings” or exercising unlawful command authority over the judge.

All stakeholders in the Military Commissions have rights and interests. This includes not only the defense, which clearly has rights, but also includes the prosecution, the victims and their families, the media, NGO Observers, court personnel, security guards, and others. The Guantanamo Bay Fair Trial Manual outlines many of these rights and interests.

(George Edwards, Ft. Meade, 23 February 2015)

My Morning at Guantanamo Bay Hearings at Ft. Meade

In front of the Post Theater at Ft. Meade.

In front of the Post Theater at Ft. Meade.

I am up early this Monday morning for my first visit this year back to Ft. Meade, Maryland to monitor Guantanamo Bay, Cuba hearings in the U.S. Military Commissions case against al Nashiri. He is the alleged mastermind of the U.S.S. Cole suicide bombing in 2000 that killed 17 U.S. sailors.

What, Guantanamo Bay proceedings in Maryland?

Yes. The Pentagon runs a secure videolink direct from the Guantanamo Bay courtroom to select viewing sites in the U.S. where press, NGO Observers, victims and their families, and others may view the proceedings. The only site in the U.S. at which NGO Observers and members of the public may see what’s happening in the courtroom is at Ft. Meade, Maryland, about 35 miles outside of Washington, DC.

It’s kind of like watching a Court TV show, except that the viewing venue at Ft. Meade is an actual live theater, where they screen first run movies on a huge commercial theater-sized screen, and host live plays, lectures and other activities on a stage. Its concession stand sells buttered popcorn, Milk Duds and Skittles, and fountain drinks. This week’s feature film is Selma, screened in the evenings after the Guantanamo courtroom goes dark.

Courtroom sketch of al Nashiri by artist Janet Hamlin. Today in court he was wearing a similar casual white short sleeve shirt. His hair appeared to be a little longer than in this sketch, but it appeared equally as kempt.

Sketch of al Nashiri from a previous court session. Today in court he wore a similar casual white short sleeve shirt. His hair appeared to be a little longer than in this sketch, but it appeared equally as kempt. (Sketch by Janet Hamlin)

Al Nashiri’s February 2015 hearings

The al Nashiri case is in the pre-trial hearing stage. Every month or two they schedule two weeks of court time in which defense and prosecution lawyers argue about logistical, substantive, or technical issues to be resolved before the actual trial begins. For the February 2015 hearings, the lawyers are arguing whether the prosecution must provide the defendant certain information, whether al Nashiri will face the death penalty, and the relevance of the U.S. Senate’s 2014 Torture Report.

But before they reach those issues, they are arguing over whether certain Pentagon officials are exercising “unlawful influence” over the al Nashiri judge, who like other Guantanamo Bay judges was ordered permanently to relocate to Guantanamo Bay and surrender all non-Guantanamo judicial responsibilities, as these changes purportedly would help speed up the trials. U.S. law clearly provides that judges are to be in control over their trials, including the speed at which their trial proceed, and outside U.S. government officials are not meant to intervene.

I won’t know what will happen in today’s hearings until 1:00 p.m., since the morning session, which was scheduled to begin at 9:00, is closed to NGO Observers. I have over four hours of out-of-court time to catch up on reading al Nashiri court documents, blog writing, and working on the Guantanamo Bay Fair Trial Manual.

Driving to Ft. Meade

Getting to Ft. Meade is not easy.

I woke up this morning before 6:00, and took a taxi from my downtown DC hotel to Washington National Airport, where I rented a car to drive to Ft. Meade. The taxi ride to the airport was historically scenic, passing the Watergate, the Washington Monument, and Arlington Cemetery.

Driving from the airport to Ft. Meade was slow, not because of rush hour, but because much of the 35 miles to the base is on narrow, two lane roads with many stop lights. I will try another route back to DC this afternoon. Perhaps it was a GPS problem?  It might be an advantage driving into DC when most of the traffic is driving out at the end of the day. All said, it was a pretty uneventful trip, which took about an hour from airport to the Ft. Meade Visitor’s Entrance.

Photo courtesy of CNN

Photo courtesy of CNN

Arriving at Ft. Meade

I remembered from last time I was here where the Ft. Meade Visitor’s Entrance is, off of Reese Road, and pulled up to the base security checkpoint. But I’d forgotten about the separate vehicle inspection line, just to the right before base security. So I had to make a quick U-turn, adding 30 seconds to my journey. The vehicle inspector asked me a few questions about my Indiana drivers license, my rental car  contract, and whether I was a member of the press. He was easily convinced that I was a credentialed NGO Observer, and very generously gave me a Ft. Meade color map, on which he traced lines to the Post Theater, where I am now.

I arrived here just before 8:30 a.m., took a couple of selfies in front of the Post Theater sign, and then bumped into Bev, who is a Department of Defense contractor who I believe supervises this viewing site. She announced to me that court was commencing at 9:00 a.m., but that the morning session would be closed to NGO Observers. They close the proceedings when they are discussing classified information that NGO Observers, victims and their families, press, and others are not permitted to hear. So, none of us can be in the courtroom or on a video-link, whether we are in Guantanamo Bay or Ft. Meade.

I wondered why those of us at Ft. Meade were not warned in advance that the unclassified, open proceedings would not commence until early afternoon. At the very least, none of us would have had to wake at the crack of dawn, only to hurry up and wait all day. (As it turns out, two people in the Observation room received notification last night at 10:00 that the open session would start at 1:00 p.m., and they arrived at the Post Theater at 12:45, well-rested after a good night’s sleep and a 50 mile drive.)

So, what do I do for the next four hours from 9:00 – 1:00 waiting for the open hearing? I could drive back to Washington, and come back this afternoon. But that would be a wasted time.

So, of course, I immediately thought that this would be a great time to catch up on Gitmo Observer blog writing, to review court documents in the al Nashiri case, and to brush up on the Guantanamo Bay Fair Trial Manual.

Drug sniffing dog Axa and her handler

Drug sniffing dog Axa and her handler at Post Theater today, after finding all the drugs planted by the MPs.

Canine Patrol

A little while after I entered the Post Theater, a group of Military Police (MP) Canine Patrol staff came in, asking whether the Guantanamo Bay hearings were on. I told them that the hearings were closed until 1:00 p.m., and that there would be no live broadcast until then. In fact the screen was showing the morning news, with stories about al Shabaab and threats to U.S. shopping malls and the weather.

The MPs said that they wanted to do some training with some of their dogs.

The next hour or so was extremely interesting, watching 5 different dogs successfully sniff out planted explosives and illegal drugs that the MPs planted in different parts of the theater.

The first dog, a black lab, was an explosives expert. She found three different satchels of explosive powder and other incendiary material, hidden inside a trash can, underneath a movie theater seat, and high above the arch of a doorway. All in record time. After each find the shiny, fine-coated lab received an award, a tug and tussle with a “kong”, which is a plastic toy attached to a colorful twisted heavy rope.

The next two explosive expert dogs performed equally as well, quickly finding all the planted explosives and receiving well-deserved treats.

Then came Axa, the first of two drug-sniffing dogs. She was a small dog, with a rugged black and grey fluffy coat. The

Fram - A drug sniffing dog and his handler.

Fram – A drug sniffing dog and his handler this morning, after the 9-year old canine gracefully located all of the drugs planted by the MPs.

MPs had hidden the drugs on the opposite side of the theatre from the explosives.  Axa’s handler gently waved her open palm towards the trash can next to the door leading from the lobby into the theater, and Axa did not react.  The handler repeated the hand gesture, called a presentation (the hand wave gesture), this time towards the door frame. Axa stood on her hind legs and leaned against the door frame, circled around beneath the frame, stood up again, and excitedly sat on her hind legs. Axa found the 5 grams of marijuana hidden in the frame above the door. She was rewarded with a yelp by the handler who tossed Axa a kong for finding the pot.

Axa then found cocaine in a trash can in front of the theater, and ecstasy underneath a seat in about row 8. Axa is only 2 years of age and has been working as a canine sniff dog only since October 2014. Well done.

Finally, Fram, the senior sniffer, was brought into the theater.

Fram was 9 years of age, lived his first 7 years in Germany, and arrived at Ft. Meade only 2 years ago. He was seasoned, he knew the drill, and he was very good at what he does.

Today Fram earned his kongs, and hugs from his handler who said “I’m going to adopt Fram when he retires”. Several other handlers chimed in “No you’re not! I’m going to adopt him”! So, we’ll see who ends of with a handsome, smart and talented dog who even at the ripe old age of nine did not look like he was anywhere near retirement.

Dog Handlers are gone — What Next?

The dog handlers have left, and I’m back to full concentration on my work (despite interruptions by a person stopping in to ask for directions to a base office, a guy coming in to turn on the bathrooms’ water which had been turned off over the weekend to prevent frozen pipes during the snow storm, and a guy changing lightbulbs above the concession stand.

My next post will have more substance and will report on my al Nashiri motion-review and my Guantanamo Bay Fair Trial Manual work.

(George Edwards, Ft. Meade, 23 February 2015)

At Ft. Meade for Guantanamo Hearings

I just arrived at Ft. Meade, Maryland for today’s live hearings in the Guantanamo Bay case against al Nashiri, who allegedly orchestrated the bombing of the USS Cole off the coast of Yemen in 2000. It’s actually a secure feed live from the courtroom at Guantanamo Bay, Cuba, broadcast in a movie theater (the Post Theater) at this military base in Maryland.

Ft. Meade is the only place outside of Guantanamo that NGO Observers accredited by the Pentagon, like me and Affiliates of the Indiana University McKinney School of Law, can monitor in real time what’s happening in the Guantanamo Bay courtroom.

More to come later today.

(George Edwards, Ft. Meade, Maryland, Monday, 23 February 2015)

IMG_7709

Preparations to Attend Abd al-Rahim al Nashiri Hearings at Guantanamo Bay, 1 – 7 March 2015

al Nashiri

Abd al-Rahim al Nashiri

I am scheduled to travel to Guantanamo Bay, Cuba to monitor the Al Nashiri Hearings at U.S. Military Commissions from 2 – 7 March 2015.  This is the case against a man, al Nashiri, who is charged in these proceedings with having being a masterminded of the October 2000 attack on the U.S.S. Cole, docked off the coast of Yemen, killing 17 U.S. sailors and wounding dozens more.

At Guantanamo Bay, I will be representing Indiana University McKinney School of Law’s Program in International Human Rights Law, which has received NGO Observer status by the Pentagon. This human rights program created the Military Commission Observation Project, and the Project nominated me for this mission.

Background

I have a Bachelor of Law from Moi University based in Eldoret Kenya (’09). I also hold a Master of Laws (LL.M.) degree in International Human Rights Law (’11) from IU McKinney, which is how I primarily got involved with the Program in International Human Rights Law.  In 2010, I was an intern in this human rights program, working in Vienna Austria in. As an International Human Rights Law student in Prof. Edwards’s classes, I gained valuable gainful insight into international criminal law, and the Guantanamo Bay case of David Hicks, on which IU McKinney students worked and on which Professor Edwards served as an expert witness.

I am currently studying International Research Ethics, but have not lost my interest in international law.

Experiences

I have had an interest in international law for many years now, but certain events heightened my desire to understand international criminal law and international humanitarian law.

On August 7, 1998, the US Embassy in Nairobi, Kenya was bombed, killing over two hundred person, wounding countless people, and causing significant property damage. There was a similar terrorist attack in neighboring Tanzania. The blast rocked our notions of the relative peace and security we had experienced as a nation. Al Qaeda claimed responsibility, and terrorism was at doorstep of my East African home.

Al Nashiri was a suspected mastermind of those East African bombings, and one of the suicide bombers, the driver of the truck carrying explosives who attacked the Embassy, was his cousin, Azzam (pg. 152, 9-11 Commission Report). It was purely coincidental that I was approved for the Al Nashiri hearings. Although as a nation we lost family and friends, I naturally was inclined to seeing all those involved pay for their crime. At the same time, reading about the torture that alleged masterminds and perpetrators were subjected to left me conflicted as a human being, and a continued believer in the universality and inalienability of human rights.

With this background and my academic experience in international law, I am eager to attend the hearings and apply what I have learned to assess whether the accused are accorded fair trials, and whether the rights and interests of all other stakeholders are being fully afforded to them.

Reason for Applying to be an Observer

I admired the work of the IU McKinney PIHRL before I even joined McKinney School of Law. In 2009, I was fortunate to meet Prof. Edwards in Eldoret, Kenya, and had a chance to work with interns from PIHRL who did their internships in the legal office where I worked in Kenya just after I completed my law degree. As an affiliate of Professor Edwards’ program, I was very proud when it earned United Nations ECOSOC Special Consultative Status, and very proud when the Pentagon granted the PIHRL NGO Observer Status to the Military Commissions.

Courtroom sketch of al Nashiri by artist Janet Hamlin.

Courtroom sketch of al Nashiri by artist Janet Hamlin.

Al Nashiri

As mentioned, al Nashiri is charged with masterminding an attack on USS Cole in October 2000 and on. He faces charges in perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hazarding a vessel.

Personal Thoughts on the Hearings

I look forward to attending the hearings. I am however conflicted. The purpose of allowing observers is to ensure free and fair trials are conducted before the Military Court at Guantanamo, yet the process is riddled with torture and gross human rights abuses. I have received countless of emails from human rights based organizations, to sign petition for the closure of Guantanamo Bay. I cannot say that I have made any active advocacy efforts towards this end. I find it unsettling after claims and evidence of illegal detention and a flagrant violation of rights, there is an interest in the right to a fair trial. At the same time, terrorist continue to launch attacks against innocent human beings. I have witnessed this in Kenya, and continue to witness it with the constant threats from the militant group Al- Shabaab. I desire justice for the victims of terrorism, and respect for human rights for those accused.

Travel to Guantanamo Bay, Cuba

My journey to Guantanamo begins March 1, and will return to the country on March 7. I will be posting my observations on this blog as I continue to prepare, and updating on the hearings on a daily basis. I look forward to meeting other NGO Observers who will be there, attending the hearings and applying the Guantanamo Bay Fair Trial Manual to give an objective and personal view of the proceedings.

Avril RuaAvril Rua, Guantanamo Bay, Cuba, 21 February 2015

Going to Ft. Meade to Monitor Guantanamo Bay Hearings

I’m traveling to Washington, D.C. this morning, bound for Ft. Meade, Maryland where on Monday morning I plan to monitor Guantanamo Bay US Military Commission hearings in the case of al Nashiri, a man accused of masterminding the suicide attack on the U.S.S. Cole off Yemen’s coast in 2000.

Why Ft. Meade?

Not everyone who wants to view Guantanamo Bay hearings is able to travel to Guantanamo Bay. It’s complicated to get there.

The Pentagon has opened a few select viewing sites for interested persons to view what is happening in the Guantanamo Bay courtroom, via secure videolink. It’s kind of like watching a courtroom drama on TV, and that courtroom scenario is real.

My colleague Professor Tom Wilson of Indiana University McKinney School of Law is scheduled to fly to Guantanamo Bay tomorrow, Sunday, to monitor the al Nashiri hearings. He will blogging about rights of all Guantanamo Bay stakeholders.

He will also be telling us at Ft. Meade what is happening outside the Guantanamo Bay courtroom that we can’t see or hear in Maryland.

The photo is of a group of NGO Observers at Guantanamo Bay in August 2014, on my last mission to the Cuban military base.

(George Edwards, Washington, D.C.., 21 February 2015)

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Thoughts on My 23-27 March Mission to Guantanamo Bay

Abd al Hadi al-Iraqi

Abd al Hadi al-Iraqi

During the last full week of March 2015, I will travel to Guantanamo Bay (GTMO), Cuba as a member of the Military Commission Observation Project (MCOP) at the Indiana University Robert H. McKinney School of Law. It’s an honor to have been selected. I will observe military commission proceedings for Abd al Hadi-al Iraqi, who arrived from CIA custody to GTMO in 2007.

 

In 2013, the United States government charged him with denying quarter, attacking protected property, using treachery or perfidy, and attempted use of treachery or perfidy in a series of attacks in Afghanistan and Pakistan between about 2003 and 2004, and conspiracy to commit law of war offenses.

General Preparation for the Project and my Guantanamo Bay travel

Whirlwind is a term I have seen associated with the process of becoming a fair trial observer as a part of the Military Commission Observation Project (MCOP). I didn’t really have any previously determined thoughts on GTMO that were fully fleshed out by thorough law school level research. Prior to conducting research, I think my level of knowledge was comparable to that of the average American. Though, maybe slightly than more than average, given that I have known several members of the military who served there.

Nevertheless, I have begun the process of researching and learning as much as possible about the project itself, the circumstances surrounding the operation of GTMO and military commissions, and the specific case I will observe. Absent a background in international law, the Guantanamo Fair Trial Manual has been a great resource in becoming familiar with the various sources of law that are implicated in the military commission system.

In addition, I’ve had to explore my thoughts and feelings about what the overarching principles of justice really mean as applied to GTMO. As is with any person, my life experiences have shaped my perspectives on the ethical components of domestic and global issues.

My Indiana McKinney Law School Career

Despite my penchant for world travel, becoming a member of MCOP is admittedly my first law school experience dealing with any area of international law. During my second year of law school I worked as a part-time law clerk for the Marion County Public Defender Agency. Following that, I volunteered with the Neighborhood Christian Legal Clinic’s Expungement Help Desk, where I informed members of the community about Indiana’s expungement law. In July 2014, I began working full-time for the Indiana Bureau of Motor Vehicles, and next month I will begin as a part-time law clerk for the Indiana State Personnel Department. This semester I have been fortunate enough to extern for Justice Steven H. David of the Indiana Supreme Court. From July 2007 to August 2008, Justice David (at the time Colonel David) was the Chief Defense Counsel for the Military Commissions at Guantanamo Bay.

My Military Service

As a member of the Army National Guard for over 10 years, I deployed once in 2011 to Kosovo as a part of Kosovo Force (KFOR) 14. KFOR has been a part of the larger multinational presence in Kosovo since 1999.

Myself in the Shar Mountains National Park in southern Kosovo in 2011.

In addition, I have personally participated in the military funeral honors ceremonies for 323 veterans, a handful of which have been Iraq and Afghanistan war casualties. In no way does this fuel personal anger or hatred towards the detainees held in GTMO. Those servicemen were honored for their sacrifices for democracy that implores fairness in the service of justice. On the contrary, it is all the more reason for me to ensure I am doing everything within my power to help the MCOP fulfill its missions (attend, observe, analyze, critique, and report).

As stated in the Guantanamo Bay Fair Trial Manual, “NGO Observers are the eyes and ears of the outside world as to what happens at Guantanamo Bay. NGO Observers have a unique responsibility to share their experiences, insights and conclusions with the outside world. NGOs should not bow to pressure. What happens at Guantanamo Bay should not stay at Guantanamo Bay.”

As a part of that mission, I have been tasked with expanding the portion of the Guantanamo Fair Trial Manual covering the rights and interests of the men and women in Joint Task Force Guantanamo (JFT-GTMO).

Guantanamo Bay Conviction of Australian David Hicks Overturned

David Hicks after learning that his Guantanamo Bay conviction was overturned on 18 February 2015. (From  Sky Sydney news.)

David Hicks after learning that his Guantanamo Bay conviction was overturned on 18 February 2015. (Sky Sydney / The Guardian.)

A U.S. military appellate court overturned Australian David Hicks’ 2007 Guantanamo Bay conviction on charges of “material support for terrorism”. On 18 February 2014, the U.S. Court of Military Commission Review ruled that the crime Hicks was convicted of did not exist as a matter of law before 2006. The alleged criminal acts occurred in or before 2001, before “material support for terrorism” was criminalized. A copy of the court’s ruling is below in full text or here:  Hicks v. United States (CMCR 2015).

David Hicks' Defense Team returns to Andrews Air Force Base after his conviction in March 2007 for material support for terrorism. His conviction was overturned on 18 February 2015.  Left to right – Professor Tim McCormack (Australian Expert Witness), Professor George Edwards (U.S. Expert Witness), Major Michael “Dan” Mori (Hicks’ Detailed Military Counsel), (Sarah Finnin, Australian civilian volunteer), Rebecca Snyder (Military Counsel Detailed as Civilian Counsel), Mick Griffith (Australian Civilian Counsel), Sergeant Rios (Team Assistant), Dave McCleod (Australian Civilian Defense Counsel).

Hicks’ Defense Team at Andrews Air Force Base after his conviction for material support for terrorism, which was overturned on 18 February 2015. Left to right – Professor Tim McCormack (Australian Expert Witness), Professor George Edwards (U.S. Expert Witness), Major Michael “Dan” Mori (Hicks’ Detailed Military Counsel), (Sarah Finnin, Australian civilian volunteer), Rebecca Snyder (Military Counsel Detailed as Civilian Counsel), Mick Griffith (Australian Civilian Counsel), Sergeant Rios (Team Assistant), Dave McCleod (Australian Civilian Defense Counsel).

Professor George Edwards and his students from the Indiana University McKinney School of Law provided pro bono legal research for Hicks’ defense team from 2004 until Hicks’ 2007 guilty plea. Professor Edwards was also tendered as an expert witness on the Hicks case, along with Professor Cherif Bassiouni, Professor Tim McCormack, and the late Judge Antonio Cassese. The Military Commission prohibited the experts from testifying live, and in lieu of live testimony, the experts provided affidavits. Professor Edwards’ two affidavits were on the right to a fair trial under international humanitarian law (the law of war / law of armed conflict), international criminal law, and international human rights law.

During Hicks’ 2007 guilty plea, Professor Edwards (from the U.S.) and Professor McCormick (from Australia) were in the Guantanamo Bay courtroom, and are believed to be the first expert witnesses permitted to travel to Guantanamo Bay for a U.S. Military Commission.

Hicks was sentenced to 7 years in prison, with most suspended. He remained at Guantanamo for two months after pleading guilty, and then after 5 ½ years at the remote island prison was returned to Australia, where he spent an additional 7 months in prison before being released.

George Edwards, Tim McCormack & David McCleod on Airplane to GTMO - March 2007

Expert witnesses George Edwards and Tim McCormack, and  Hicks’ civilian attorney David McCleod on a U.S. military aircraft from Andrews Air Force Base Airplane to Guantanamo Bay, Cuba for David Hicks’ U.S. Military Commission & guilty plea. (March 2007)

According to Military Commission spokesperson Myles Caggins, the U.S. government will not appeal the appellate court’s ruling.

Hicks’ military lawyer for his initial Guantanamo Bay proceedings, Lt. Col. Michael Dan Mori (ret.) (then Major Mori) was not available for comment. He is pictured above with the Hicks defense team as they arrived back at Andrews Air Force Base after the March 2007 guilty plea. Pictured also in this post are Professor George Edwards (Indiana University McKinney School of Law) and Professor Tim McCormack (University of Melbourne Faculty of Law), on a military aircraft traveling from Andrews Air Force Base outside Washington, DC to Guantanamo Bay, Cuba for the U.S. Military Commission proceeding during which Hicks pleaded guilty in March 2007. Seated next to them is David McCleod, an Australian lawyer who served as Hicks’ civilian defense counsel.

A copy of the court’s ruling is here:  Hicks v. United States, 13-004 Decision (Feb 18 2015) – US Court of Military Commission Review

A copy of the Indiana University’s Guantanamo Bay Fair Trial Manual can be found here

9/11 Hearings Misc Motions Heard

On Wednesday, February 11,  Judge Pohl called for the parties to suggest motions that could be heard outside of the 292 conflict-of-interest matter and the prior CIA black site interpreter matter (350). There was an aura that the 9/11 hearings were on life support as the prosecution and defense struggled to put motions on the table that could be argued during the remainder of this week. Mr. Walter Ruiz, Learned Counsel, proposed a number of motions that deal only with his client, Mustafa al-Hawsawi.

This morning he called to order the Military Commission to hear arguments on a variety of outstanding motions. Defendant Mr. al Baluchi chose not to attend the hearings today. As a result, the first few minutes of the proceedings dealt with an Officer of the Judge Advocate General Corp’s office testifying that he had informed Mr. al Baluchi of his rights to attend and to obtain his waiver. Typically when this happens the prosecution files a “submission of alias” because the testifying officer does not provide his name on the witness stand. Learned Counsel for Mr. al Baluchi, James Connell, noted on the record that the prosecution had not made such admission this morning.

David Nevin, Learned Counsel for Khalid Shaikh Mohammed, again went on the record to make an on the record motion (and to indicate that he will be filing a written motion) to halt all proceedings until such time as the matter of the former CIA black site interpreter issue is resolved.  Again, he was overruled.

Today’s activity focused on motions focused by Mustafa al-Hawsawi.  Mr. Walter Ruiz, Learned Counsel, argued the following motions:

  • AE192 & AE196 Motion to Seek to Disqualify Legal Adviser, Office of the Military Commission Due to the Unlawful Interference with the Professional Judgment of the Chief Defense Counsel and Detailed Learned Military Counsel. Mr. Ruiz requested that Judge Pohl go forward with an analysis of the underlying facts and law because these circumstances are representative of an instance of unlawful influence in the proceedings. The issue of unlawful influence does not resolve itself simply because those involved have left the Office of the Military Commission. Ms. Bohrmann, Learned Counsel, for Mr. Walid bin Attash, similarly urged Judge Pohl to undertake the analysis and make a ruling.
  • AE332 & AE340 Motions to compel discovery of Mr. Hawsawi’s medical records and access to medical personnel who treat Mr. Hawsawi. Mr. Ruiz requested access to medical records and medical personnel in order to judge the standard of care his client is receiving and also to help Mr. Hawsawi make medical decisions. His health has showed signs of deterioration. The prosecution challenged these motions by arguing that the medical issues are arising out of a December 2014 incident in which Mr. Hawsawi was injured while in detainment. The prosecution also stated that his medical records, which were classified, are being declassified and delivered to the defense on a rolling basis.
  •  AE303 Motions addressing conditions of confinement. Mr. Ruiz argued that the circumstances of confinement at Guantanamo Bay violate humanitarian law. He did note that there has been one change. For example, Mr. Hawsawi did not have any access to his family from 2003 through most of 2014.  In October 2014 a process was put in place to allow the defendants to record messages that will be delivered to their families. In January 2015 a process was put in place to enable the defendants to Skype with their families. His overall focus was that quality of life will equal quality of defense and that the United States has a legal duty to abide by the law. The prosecution urged Judge Pohl to stay out of the detention role and noted that the Geneva Convention does not apply to these defendants because they are “alien unprivileged enemy belligerents.”
  • AE214 & AE214A Motion to Compel Mr. Hawsawi Access to the Government of Saudi Arabia in Compliance with United States Law and Motion to Compel Prosecution to Produce Un-redacted Copies of Correspondence etc. Pertaining to Requests by Saudi Arabia to Meet With Its Citizens Held in Guantanamo Bay Mr. Ruiz urged Judge Pohl to order this discovery so that Mr. Hawsawi would have access to officials of his home state, Saudi Arabia.

At the conclusion of lengthy oral arguments, Judge Pohl asked if there was any further outstanding matters.  Again David Nevin renewed his concern that the legal proceedings were continuing in light of the 292 and 350 matters.

James Harrington, Learned Counsel for Ramzi bin al Shibh, brought up what he called a “simmering problem.” He stated that the manner in which the defendants are handcuffed/shackled has changed and that as a result the defendants are experiencing injuries.  Mr. Harrington noted that the defendants are not attending attorney-client meetings rather than suffer the injury. He asked Judge Pohl to ask the prosecution to look into the matter and see if the issue can be corrected.

The proceedings concluded with James Connell, Learned Counsel, asking Judge Pohl to issue an subpoena or other relief to provide the defense access to the former CIA black site interpreter.  Judge Pohl declined to do so and asked for a written motion.

Camp Justice Guantanamo Bay, Cuba December 2014

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)

 

9/11 Hearing: CIA Black Site Worker, Conflict-of-Interest, and Severance

Camp sign

The high lights of today’s (11 February 2015) 9/11 hearings at Camp Justice, Guantanamo Bay, include:

  • Opening statement by General Martins that the presence of a former CIA black site worker on a defense team “in no way resulted from any action by any agency of executive branch to gather information on any of the defense teams.” He repeated the statement twice before moving on.
  • General Martins then indicated that the interpreter’s name, appearance, and presence at Guantanamo Bay was classified information (he didn’t address that the original unofficial transcript posted on the Military Commission website included the interpreter’s name for a few hours until it was redacted)
  • On the matter of the former CIA black site worker, Judge Pohl shut down defense counsel’s attempt to present a”preview” of the motions they will be filing in response to the government’s filing and General Martins’ opening statement.
  • Defense counsel for all the teams argue that General Martins’ statement is a suggestion that defense counsel failed to adequately represent their clients because they, the defense counsel, did not discover the interpreter’s past history.
  • Defense counsel David Nevin stated he wants to find out what purpose the interpreter was put on the defense team if it was not to have him gather information.
  • Special Independent Counsel for Mr. Ramzi bin al Shibh, Lt. Col. Julie Pitvorek (USAF), stated that the defense teams can not move forward on the conflict-of-interest matter without additional information.
  • Judge Pohl denied the Special Review Team’s request for a closed meeting with Special Independent Counsel and him.
  • Defense counsel David Nevin objected at three different points to the continuation of the hearings until the interpreter issue can be investigated and resolved. His objections were overruled.
  • After a short recess, Judge Pohl took up the matter of severing Ramzi bin al Shibh and the 292 motion series.
  • Judge Pohl started by pressuring the prosecution to indicate  “how long was too long.”  In short how long would the government oppose severance knowing it would hold up the trial of the other four defendants. The government remains opposed to severance.
  • Judge Pohl called a long lunch recess to allow the lawyers to deal with the interpreter and severance issues. We will resume at 2:00 pm.

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)

 

40 Seconds is a Long Time & Other GTMO Musings

Monday, February 9, was my first observation experience in the Guantanamo Bay courtroom. It is difficult to describe because I am prohibited from writing much of what I would like to say about the activities in the courtroom. It is a highly controlled area. A sign informs observers that among other things, sketching and even doodling, are prohibited in the gallery. After seeing the courtroom activity, I believe even more so that the courtroom proceedings should be broadcast live on C-SPAN or other network.

Observers, along with the media, are seated in a four-row gallery behind a glass window. Upon entering the gallery you are given an assigned seat number. Media representatives, along with the court sketch artist, are assigned to the front row. Media may also watch the courtroom action on a direct feed to their office/lounge. This allows them to send immediate updates. There is a special gallery section for the family members of 9/11 victims. A curtain can be drawn to protect the victim family members from view of others in the event there is a need for privacy.

The defendants are able to see into the gallery; and at one point Khalid Sheihk Mohammed looked back and acknowledged one of his pro bono attorneys who was present in the gallery.

The gallery is on a 40-second delay. It is amazing how long 40 seconds feels! The time delay gets a bit weird when the “all rise” is given when Judge Pohl leaves and the gallery is still processing the last minute of the activity. I was standing and still scribbling notes as I watched the monitor.

There are a lot of actions that seem unnecessarily proscribed at Guantanamo Bay.  For example, the NGO Observer office/lounge is in the old airport hangar, as is the media’s office/lounge. However, we enter our NGO Observer office/lounge from a door on the outside of the building and can’t go into the hangar. During General Martins’ press briefing, the NGO Observers could not go into the hangar and watch.  We had to stay in our office/lounge and watch it via a live link.

DSCN0945 NGO Observers Media

 

 

 

 

 

 

Similarly the NGO Observers had to watch the defense team press briefing in our NGO Observer lounge/office. The feed to the NGO Observer lounge/office was terminated at the end of the hour, even though the press asked the defense teams if they would continue with the briefing. The NGO Observers later learned that the questions and answers continued for some time after the feed was terminated.

After the startling allegations against the newly assigned interpreter by Ramzi bin al Shibh, one NGO observer remarked “you just can’t make this stuff up!” That about sums up the process here at Guantanamo Bay.

 (Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)

Still Awaiting A 9/11 Update

On Monday, February 9, Judge Pohl recessed the 9/11 hearings to permit General Martins’ prosecution team and the defense teams to investigate the allegations made by the 9/11 defendant, Ramzi bin al Shibh, that he recognized the new interpreter assigned to his defense team as a worker at a CIA black site. Interestingly, his statement naming the individual and directly making reference to a CIA black site was not censored by the Courtroom Security Officer. As a result, the unofficial transcript first posted to the Military Commissions site included the interpreter’s name. Later in the afternoon a redacted unofficial transcript was posted. A number of the NGO Observers felt that the inclusion of the interpreter’s name in a public document was unwise.

General Martins asked for time to discover the facts and file “papers.”  Defense teams asked that the filings be adversarial (ie., available to the defense) rather than ex parte. In addition, defense teams asked that the interpreter be made available for interviews.

There has been a good deal of going and coming of lawyers at the courtroom.  However, no news is leaking out to the NGO Observers. It is now 6:30 pm on Tuesday and the docket does not specifically reflect any filings by the prosecution or the defense on this matter. The prosecution did file an “Unclassified Notice of  Classified Filing” earlier today. The document is not available for public review.

Although there is much speculation as to whether the 9/11 hearings will move forward, there is no news as of this time.

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay)

9/11 Hearings Halted

The 9/11 hearings at Guantanamo Bay were recessed until 9:00 am Wednesday, February 11 to give the defense and prosecution teams to investigate the defense team interpreter accused of being a CIA black site worker.

Today’s action started with a request by retiring Navy Lieutenant Commander Kevin Bogucki to resign from the defense team for Ramzi bin al Shibh.  When asked if he accepted Major Elena Wichner as new counsel, Mr. bin al Shibh stated that he could not trust the defense team interpreter sitting next to him because he recognized him as CIA black site worker that was involved in the CIA Rendition, Detention and Interrogation program.  Cheryl Bohrmann, Learned Counsel for Walid bin Attash, stated her client had informed her of the same just minutes before.

Ironically the interpreter alleged to be a CIA black site worker replaced the individual dismissed from Mr. bin al Shibh’s team who was found to be the FBI infiltrator.

After a brief recess to bring in General Martin’s prosecution team, Judge Pohl asked the prosecution and defense for a “way forward.”  General Martin’s asked for time to investigate and make filings. David Nevin, Learned Counsel for Khalid Sheikh Mohammad, requested that the Military Commission require the dismissed interpreter be held on the island and made available for interviews with the defense.

Cheryl Bohrmann inquired of Judge Pohl if General Martins’ prosecution team was the best option for the investigation of what might again be the government’s infiltration of the defense teams. She noted that her client, Mr. bin Attash, was “visibly shaken” and suggested the the Special Review Team already in place to investigate the FBI conflict-of-interest matter should be used.

Judge Pohl chose to rely on the prosecution and indicated that he didn’t intend that this matter would go through the usual three-week briefing schedule. The hearings are recessed until Wednesday, February 11.

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)

9/11 Hearings in Recess

The 9/11 hearings are in recess because defendant Ramzi bin al Shibh alleged in the courtroom that the interpreter at his defense table had been at a CIA black site. Defense counsel for Walid bin Attash, Cheryl Borhmann, then indicated that her client had informed her of the same.  Court is in recess until 10:30 am.  General Martins’ prosecution team has been called to court to deal with the issue.  His team was not in court because the Special Review Team was representing the government on the FBI conflict of interest matter.

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)

Gitmo Observer Provides NGO Observer Resource Centre

The remaining copies of the Guantanamo Bay Fair Trial Manual and other resources and supplies are set up in the NGO Observer lounge and ready for use by the NGO Observers.

DSCN0936

Gitmo Observer NGO Resource Centre

This trip has nine NGO Observers.  The NGO Observers represent the law schools of Duke University, Seton Hall, and Georgetown University. The other NGO Observers represent Amnesty International, National Institute for Military Justice, New York City Bar Association, Judicial Watch, and Pacific Council on International Policy.  Everyone has been uniformly impressed by the Guantanamo Bay Fair Trial Manual. Hopefully we will get some good feedback!

Earlier today the prosecutor provided the updated 9/11 court filings on cds. They also provided two dvd/cd drives for those NGO Observers whose laptops no longer have dvd/cd drives!  Technology sure has a way of complicating things on days.

 (Catherine Lemmer, Guantanamo Bay, 9/11 hearings, February 9-13, 2015)     

Sunrise Over Andrews Air Force Base

The sun is on the horizon and the departure lounge at Andrews Air Force Base has  started to fill up.  The wall outlets are in demand; and the wifi is slowing down. sunrise 2

The nine NGO Observers are all here as we are the first to check-in. I have already distributed copies of the Guantanamo Bay Fair Trial Manual — everyone is most appreciative! One NGO Observer had already downloaded it from the link I sent in yesterday’s introductory email.

As soon as I finish this post I am off to continue conversatiodepart 2n with some of the defense lawyers and members of the media.

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)

 

First Up: Motions on Severance & Conflict-of-Interest

gitmo picI am en route via Chicago and Washington D.C. to Guantanamo Bay, Cuba for the first week of the 9/11 hearings.  The hearings are scheduled to start at 9:00 am on Monday, 9 February 2015. Judge Pohl has ordered that all five defendants must be present in court.

The first issue to be addressed during this session is reconsideration of Judge Pohl’s order of August 2014 (AE312) to sever Ramzi bin al Shibh’s case from the other four 9/11 defendants. Mr. in al Shibh’s case was severed as a result of the prosecution’s request for a competency hearing for him as well as the conflict-of-interest matter arising from FBI investigation into his defense team. If this sounds familiar, it should. These same motions were scheduled for hearing but not heard when the December 2014 hearings were cancelled over the female guard issue.

The resolution of the potential conflict-of-interest matter is a complex issue that has delayed the hearings for nearly a year. In 2014, the Military Commission concluded that there was no actual or potential conflict with respect to four of the five 9/11 defense teams. The Military Commission did conclude that there may be an actual or potential conflict with respect to the legal team representing Mr. bin al Shibh. In August, Judge Pohl ordered Independent Counsel for Mr. bin al Shibh to investigate and advise him. Lt Col Julie Pitvorek, USAF was assigned as Independent Counsel for Mr. bin al Shibh. LtCol Pitvorek will be present at the February hearings, as will Mr. Harrington and Lieutenant Commander (LCDR) Bogucki, Mr. bin al Shibh’s present counsel.

In April 2014 a Special Review Team consisting of Department of Justice prosecutors was appointed to investigate the FBI’s undisclosed interviews and investigations of certain members of the 9/11 defense teams. The creation of the Special Review Team was required because General Martins’ prosecution team can not investigate the defense teams. The Special Review Team functions as the prosecution with respect to the investigation of the defense teams and whether the FBI activity created a conflict-of-interest for the defense team.  The Special Review Team was in court at the preliminary hearings in June, August, and October on behalf of the prosecution. These prosecutors will be in court for the February hearings to represent the government for the three pleadings that will be heard by Judge Pohl related to these matters.  Should these matters be resolved, the parties will move on to the many other matters scheduled for argument in the following weeks.

The matters before the Military Commission are legally and factually complex. It makes it challenging for NGO Observers tasked with observing, analyzing, and reporting on whether the military commissions are open, transparent, and providing fair trials to the defendants.  It is important that we focus on our specific role in the process. The Guantanamo Bay Fair Trial Manual is a great tool to help us do so.

The matters scheduled on the docket include:

AE 312C Defense Response to Emergency Government Motion to Reconsider AE 302 Severance Order The order severing Mr. bin al Shibh is currently in abeyance (temporarily suspended). The judge may revoke the order, sever Mr. bin al Shibh, or continue to hold it in abeyance.)

AE 292RR Prosecution Special Review Team Motion for Reconsideration of AE 292QQ (Order) (Prosecution Special Review Team seeks to have Judge Pohl reconsider his decision that there may be a potential conflict within Mr. bin al Shibh’s defense counsel.)

AE 292VV Defense Motion to Compel Discovery Related to Interference with Defense Function by the United States.  (The defense asks Judge Pohl to compel the Prosecution’s Special Review Team to provide the evidence related to the FBI’s investigations of the defense teams. )

AE 292YY Defense Motion for Appropriate Relief-Disclosure by Military Judge Whether He has Acquired Information Relating to the Case from an Undisclosed Source and the Details of the Information (The defense asks Judge Pohl to disclose what information he has about the FBI investigation that has not been provided to the defense.)

AE152 Prosecution Motion for R.M.C. 909 Hearing (The prosecution asks the Commission to establish the competency of Ramzi bin al Shibh to stand trial.)

AE 254KK Prosecution Government Motion For an Expedited Litigation Schedule to Resolve AE 254Y (The prosecution requests oral argument relating to the issue of female guards in contact positions with defendants.)

AE 331 Military Commission Judge Trial Conduct Order (The military judge ordered the government to review the Protective Order regarding classified information and sealed pleadings in light of the release of the Torture Report.)

AE 008 Defense Motion to Dismiss for Defective Referral (The defense position is that the Convening Authority did not charge the defendants properly.)

AE 031 Defense Motion to Dismiss for Unlawful Influence (The defense position is that the President of the United States put pressure on the Convening Authority to bring the case against the defendants.)

AE 192 Defense Motion to Disqualify (The defense position is that the Legal Advisor to the Convening Authority unlawfully interfered with the professional judgment of the Chief Defense Counsel and Mr. al Hawsawi’s Learned  Counsel.)

AE 196 Defense Motion to Disqualify (The defense position is that the Chief of Operations for the Convening Authority unlawfully interfered with the professional judgment of the Chief Defense Counsel and Mr. al Hawsawi’s Learned Counsel.)

AE 254 Defense Emergency Defense Motion to Permit Attorney-Client Meetings (The defense position is that JTF-GTMO is interfering with attorney-client visits.)

AE 112 Defense Motion to Compel White House and DOJ policy on Rendition, Detention, and Interrogation Program (The defense seeks to compel discovery about the policies underlying the CIA rendition, detention, and interrogation program.)

AE 114 Defense Motion to Compel Information regarding Buildings in Which Defendants May Have Been Confined (The defense asks the prosecution to produce evidence about any facility where the defendants were held.)

AE 182 Defense Motion to Possess and Resume Use of a Microsoft-Enabled Laptop Computer (The defense asks that the defendants have access to standalone computers to work on their defenses.)

AE 183 Defense Motion for Telephonic Access for Effective Assistance of Counsel (The defense asks to be able to communicate by telephone with the defendants.)

AE 195 Defense Motion to Compel Production of Communications Between Government (The defense seeks information about government involvement with the movie Zero Dark and Filmmakers of Zero Dark Thirty.)

AE 206 Defense (Mohammed) Motion to Cease Daily Intrusive Searches of Living Quarters and Person (The defense wants the prison to use less intrusive means to search for physical contraband.)

AE 036E Prosecution Motion to Clarify Order AE036D (The prosecution asks the Judge to order that the prosecution has control over all witnesses, including remote testimony.)

AE 036G Defense Motion to Compel Discovery (The defense wants the Judge to compel discovery on government policy of producing witnesses.)

AE 036H Defense Motion to Compel Witnesses (The defense wants the Judge to compel witnesses on prosecution statements regarding costs of producing witnesses.)

AE 214 Defense Motion to Compel access to Government of Saudi Arabia. (The defense requests that the Military Commission compel the Secretary of Defense to facilitate communications between Mr. Hawsawi and Saudi Arabia.)

AE 119 Defense Motion to Dismiss and to Compel a Status Determination Pursuant to Article 5 of the Geneva Conventions (The defense asserts that there is a question as to the status of the defendants under Article 5 of the Geneva Conventions and charges should be dismissed.)

AE 164 Defense Motion to Stay all Review Under 10 U.S.C. § 949-4 and to Declare 10 U.S.C. §949p-4(c) and M.C.R.E. 505(f)(3) Unconstitutional and In Violation of UCMJ and Geneva Conventions (The defense argues that the Commission’s decision to permit trial counsel to substitute, summarize, withhold, or prevent access to classified information is unconstitutional.)

AE 018W Joint Defense Motion to Amend AE 018U Privileged Written Communications Order (The defense argues that interpretations of the provisions in the written communication order are restricting attorney-client communications and should be amended to protect the rights to effective assistance of counsel and to prepare and participate in own defense.)

AE 018BB Defense (WBA) Motion to Compel Paper Discovery in Accordance with Privileged Written Communications Order (The defense requests that the Commission order the government to provide a duplicate copy of all paper discovery materials releasable to Mr. bin ‘Attash.)

AE 018MM Defense Motion to Compel Reasonable Privilege Review Team Hours of Operation (The defense requests that the Commission order the Privilege Review Team (PRT) to maintain reasonable weekend hours at all times; or at a minimum, maintain weekend hours for processing materials immediately prior and to and following hearings, or when there are approved attorney-client visits.)

AE 161 Defense (AAA) Motion to Require the Government to Comply with MCRE 506 Regarding redaction of Unclassified Discovery (The defense argues the Commission should order the prosecution to produce the complete, unredacted copies of certain unclassified discovery documents under Military Commissions Rule of  Evidence 506.)

AE 190 Defense (AAA) Motion to Compel Production of Information Relating to Statements Made by Mr. al Baluchi or Potential Witnesses at a Detention Facility Classified Motion AE 191 Defense (AAA) Motion to Compel Production of Information  Classified Motion AE 194 Defense (AAA) Motion to Compel Discovery of Mr. al Baluchi’s Statements (The defense requests that the military judge compel production of all records of all statements made by Mr. al Baluchi in the government’s possession

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay February 9-13, 2015)