Month: February 2015

What’s Really at Issue with Female Guards touching #Guantanamo Bay Detainees

The main issue that was argued the last week of January was whether or not a female guard should be permitted to have contact with a detainee. Practical concerns were raised in regards to religion. With Islam, it is taboo to be touched by a female that a man is not related to or married to. Several witnesses were called, including the female guard at issue. Steps were taken to preserve her anonymity and there was no personally identifiable information that was given about her. She testified as to how her job required her to handle the detainee. Arguments were made that went to whether or not allowing females to touch detainees would hinder that females’ advancement in her career, whether or not the defendant’s religious views were being violated, whether or not suitable male replacements could easily be found, etc.

I think the real issue, that was never broached, is whether the commission actually has the jurisdiction to rule on this matter with regards to general handling while in custody down at Gitmo. This hinges on how broadly the court interprets the defense’s request for touching to cease. Defense tried to argue for all touching, period, to cease. The judge cannot rule on what happens outside of court related proceedings, and even then, how far does his authority reach? Does it apply to court related medical exams? Transfers from the detention facility to the court holding facilities prior to coming into the court room? Anything further is speculation and a ruling has not been handed down yet by the judge, but I will definitely be interested to see how this comes out.

(Margaret Baumgartner, Hadi al Iraqi Hearings, January 25-31, 2015)

Stakeholder Rights – The Prosecution

I am scheduled to leave for Guantanamo Bay on February 7 to ob usbase serve the Guantanamo Bay military commission pre-trial proceedings in the case against the five 9/11 defendants. The flight is a little longer than necessary because the plane is prohibited from crossing Cuban air space. In addition to the NGO Observers, the plane to Guantanamo Bay will carry many of the other players, including the defense teams, prosecutors, media, and victim family members.

As an NGO Observer, it is my role to attend, observe, analyze, critique, and report back on the Guantanamo Bay proceedings to help ensure that the proceedings are fair and transparent for all of the stakeholders. The Guantanamo Bay Fair Trial Manual sets out the rights and interests of the many stakeholders: the defendants, prosecution, victims and their families, press, witnesses, Joint-Task Force-GTMO, U.S. citizens, international community, and NGO observers.

: Brigadier General Mark Martins (Harvard University)

Since my December 2014 Guantanamo Bay mission I have given a good deal of thought to the rights of one stakeholder group in particular: the prosecution. I met Brigadier General Martins, the chief prosecutor, and some members of his team in December during the NGO observer briefing. During the briefing he was asked the “How did you get here question?” In his response he described his past military service, conversations with family, and his legal education and training.

At the conclusion of our meeting, I thanked him for taking on the role of chief prosecutor. Many might wonder why. The short answer is that the prosecutor represents the rights and interests of society as a whole. The guarantee of a fair and transparent trial is as dependent on the prosecution upholding its duty to all of the stakeholders as it is on the defense teams zealously working on behalf of their clients and the judges engaging in thoughtful and insightful legal analysis when rendering rulings.

Standard 1.1 of the National Prosecution Standards of the National District Attorney’s Association states that “the primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth.” Standard 3-1.2(c) of the ABA Standards for Criminal Justice further notes that it is the duty of the prosecutor to “seek justice, not merely to convict.” 10 USC §949(b) (2014) prohibits the coercion or influence of military commission prosecutors. As a stakeholder entitled to a fair trial the prosecution in fulfilling its duty to seek justice has the right to operate with sufficient resources, without judicial prejudice, and free from outside influence.

The duty to seek justice through the representation and presentation of the truth is not necessarily inconsistent with a military commission proceeding. General Martins has indicated that the prosecution is bringing only those charges it believes it can prove; and that no classified information will be used as evidence as it is important for all the stakeholders to be able to evaluate the merits of the evidence. In short, he has advocated for justice with an open and transparent proceeding. However, General Martins and his team are in the challenging position of bearing the burden of illegal and unethical actions by governmental units over which he has no authority (e.g., the FBI and CIA). It may not be possible to counter the taint of these actions on the military commission proceedings. It remains to be seen how he and his team will balance the consequences of these actions while upholding the duty to seek justice.

He is an equally delicate balance with respect to the families of the victims. General Martins often speaks of justice for the victims. The voice of the victims and their families is a strong and compelling voice and the jury (panel) when finally selected and sitting will undoubtedly empathize with it. As the proceedings progress, those interested in a fair and open process will need to be attentive to ensure that the prosecution serves justice by remaining neutral to and independent of each individual stakeholder group.

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

Three Indiana McKinney Law Professors Travel to Guantanamo Bay, Cuba

IU McKinney Professor Lemmer to return to Guantanamo Bay to monitor the 9/11 case against Khalid Shaik Mohammad and 4 co-defendants

Indiana University McKinney School of Law will send three law professors to Guantanamo Bay, Cuba to monitor U.S. Military Commission hearings in February 2015. They represent the law school’s Military Commission Observation Project, also known as the Gitmo Observer, that was selected by the Pentagon to observe, analyze and report on war crimes trials at the Guantanamo Bay Naval Station.

Professors Edwards & Lemmer – The 9/11 case

Professors George Edwards and Professor Lemmer will monitor pre-trial hearings in the case against five alleged masterminds of the 9/11 airplane attacks on the World Trade Center and the Pentagon. The lead 9/11 case defendant is Khalid Shaik Mohammad (KSM).

Professor George Edwards on a US Military C-17 flight from Andrews Air Force Base to Guantanamo Bay, Cuba (June 2014)

Professors Edwards, who is founding director of Gitmo Observer, said “The IU McKinney School of Law is fortunate that we can help promote transparency at the Guantanamo Bay war crimes trials, and that we can observe, analyze and form conclusions about whether Guantanamo Bay stakeholders are being afforded all rights to which they are entitled. In the Guantanamo Bay Fair Trial Manual we are publishing, we examine rights of the defendants, as well as rights of victims and their families, rights of the prosecution, rights of witnesses, rights of the U.S. military personnel who provide Guantanamo Bay security, and rights and interests of all other stakeholders”.

Professor Edwards is scheduled to return to Guantanamo Bay from 14 – 21 February 2015. Professor Edwards’ first visit to Guantanamo Bay was in 2007, when he was an expert witness in the case against Australian David Hicks, who at Guantanamo Bay became the first person since World War II to be convicted by a U.S. Military Commission.

Professor Lemmer, who is a lawyer and international librarian, has played instrumental roles in the development of the Gitmo Observer. She is scheduled to travel to Guantanamo Bay for 9 -13 February hearings. She was at Guantanamo Bay in December 2014 for hearings in that same case. Professor Lemmer has been library liaison to the Gitmo Observer, and a key developer of the Gitmo Observer website, briefing materials, and project policies. She has also undertaken to help develop the NGO Observer Library, which will be a functioning resource center for NGO Observers to use while they are on missions to Guantanamo Bay to monitor hearings.

Professor Wilson — The USS Cole / al Nashiri case

Professor Wilson is scheduled for Guantanamo Bay travel to monitor the USS al Nashiri case.

Professor Wilson, is scheduled to travel to Guantanamo Bay during the week of 23 – 27 February 2015 to monitor the case against al Nashiri, who is alleged to have masterminded the 2000 suicide attack against the USS Cole, a U.S. Naval ship that was docked off the coast of Yemen, and that killed and wounded numerous U.S. sailors.

Professor Wilson, in preparing for his first mission, will be posting his preliminary observations on the Gitmo Observer blog very soon!

Are you interested in travel to Ft. Meade or Guantanamo Bay?

Indian McKinney School of Law students, faculty, staff and graduates are eligible to be considered for travel to Ft. Meade and Guantanamo Bay through the Gitmo Observer. Registration forms are available on our website.

In 2014, Dean Andy Klein was scheduled to travel to Ft. Meade, Maryland to observe Guantanamo Bay courtroom proceedings simultaneously video-cast by secure link. The hearings were cancelled, and Dean Klein is expected to reschedule in the near future.

IU McKinney Law School Dean Andy Klein is expected to travel to Ft. Meade, Maryland to monitor military commission trials during the Spring 2015.

(Post by by George Edwards)

Using the Fair Trial Manual at GTMO – Hadi al Iraqi Hearings – January 25-31

I thought I would comment on how I used the Guantanamo Bay Fair Trial Manual throughout my week at GTMO. Our group was very lucky in that we had more open sessions than other groups have seen in the past. The Manual came in particularly handy when we met with counsel, when I spoke with people outside of the courtroom, educating observers in the gallery, and also while observing the hearings.

Sit-down with Colonel Jasper

Colonel Jasper is integral to the defense of the detainees. He is a Marine Judge Advocate and gladly spent an hour speaking to our small group. I wasn’t quite sure what questions to ask him, so I consulted the sections of the manual dealing with “Right to effective Assistance of Counsel”, “Right to Communicate with Counsel of His Own Choosing”, and “Right to Attorney Client Privilege”. These sections helped me to ascertain what questions to ask someone in his position. I can definitely see that he is an effective counsel. He believes very strongly in the rights of his client (Hadi al Iraqi) and was incredibly passionate in his conversation with us.

Several of my questions for him came from the manual, which one could not readily ascertain just from observation of the proceedings alone. According to Colonel Jasper, the Government is running all of the proceedings and his client is not getting a fair shake. The prosecution has more resources, he only has four days each month with his client to communicate (and this is when he travels into GTMO), the judge is biased, etc. He does not have the opportunity to really consult with his client in confidence, claiming the government observes, but he does not know to what extent.

I did ask him what his level of security clearance is, to confirm that it is the same as that of the prosecution. To me, it still does not make sense that defense counsel cannot see the same documents as the prosecution. In my legal practice, we often encounter documents subject to confidentiality orders that only our counsel can see. They can then advise us on strategy, but not on the contents of the documents. I would think that the defense counsel would at least be afforded this, but apparently everything is on a “need-to-know” basis for everyone involved.

Use in the Gallery

I let several observers flip through the manual who were not with our NGO party during the hearings. Unfortunately, the size of it was a bit daunting to some and they looked at the first few pages before just handing it back to me. It was more effective for me to summarize the purpose of the Manual and that I was using it as a guide for my observations. I took lots of notes in it and it was also integral in keeping me awake and paying attention. Sometimes the content of the hearings can get a little dry and it gets a bit difficult to not let the mind wander. It’s also helpful to go back through now that I’m home and I can flip back through it for my notes.

Conversations with my Fellow NGOs

Discussing issues prior to the first hearing of the trip on the first day in the NGO Lounge.

The manual also served as a good conversation topic with my fellow NGOs. It was a fabulous ice-breaker at Andrews when I handed it out and then we could discuss the contents of it throughout the trip. One example of the topics that came up was that the majority of the questions seemed more biased in favor of the detainees and the defense when we are supposed to be impartial observers.

Suggestions were made to pare down the size of the manual, focus more on the questions of law that continually come up among the current proceedings, and provide a shorter version of the manual that refers to the longer version for more detail.

(Margaret Baumgartner)

Monitoring 9/11 Hearings at Guantanamo Bay & Ft Meade — Stakeholder Rights

9/11 lead defendant Khalid Shaik Mohammad, in the Guantanamo Bay courtroom. (Sketch by Janet Hamlin)

9/11 lead defendant Khalid Shaik Mohammad (KSM), in the Guantanamo Bay courtroom. KSM was waterboarded 183 times in 2003.* (Sketch by Janet Hamlin)

I am scheduled to monitor Guantanamo Bay military commission proceedings in the case against five alleged masterminds of the 9/11 airplane attacks on the World Trade Center and the Pentagon. The lead 9/11 case defendant is Khalid Shaik Mohammad (KSM).

First, I will travel to Ft. Meade, Maryland, where Guantanamo Bay courtroom proceedings are simultaneously transmitted by secure video link. Then, I will travel to Guantanamo Bay, Cuba, where I will be in the courtroom itself, with the judges, defense, prosecutors, media, victims and their families, and the 5 defendants. These hearings, scheduled for 9 – 21 February 2014, will address pre-trial legal issues. The trials may not begin until 2016 or later.

Monitoring Guantanamo Bay trials

The Pentagon has said it wants military commissions to be open and transparent. They want Guantanamo Bay trials to be fair, and they want independent outsiders to monitor the proceedings and assess this fairness. This is consistent with the U.S. statutory requirement that these proceedings shall be publicly held, and that they operate in accordance with international and domestic law mandates for open and fair trials.

The Pentagon selected a handful of non-governmental organizations to send monitors to Guantanamo Bay. In 2014, the Pentagon granted NGO Observer status to the human rights program I had founded at Indiana University McKinney School of Law. I then founded our Military Commission Observation Project (MCOP), which has morphed into The Gitmo Observer.

Gitmo Observer missions include to attend, observer, analyze, critique and report on Guantanamo Bay proceedings. Numerous IU McKinney observers have traveled to Ft. Meade and Guantanamo Bay to monitor proceedings, and have published on their observations. Also we are publishing the Guantanamo Bay Fair Trial Manual, which examines rights and interests of all stakeholders of the proceedings. The Guantanamo defendants have rights and interests. But other stakeholders also have rights and interests. These stakeholders include the prosecution, victims and their families, witnesses, and the press. The Guantanamo Bay Fair Trial Manual identifies the binding international and domestic law that provides for these rights and interests, and guides stakeholders as to which rights and interests they are entitled, and discusses enforcement and remedies.

Issues February 9/11 hearing

All the issues docketed for the February 9/11 hearings deal with stakeholder rights, principally pre-trial and trial rights of the defendants. They also include U.S. government rights related to national security, rights of female Guantanamo Bay guards to freedom from employment discrimination based on sex, and rights of the international community regarding U.S. compliance with international law.

Listed below are some of the rights issues scheduled for debate this 2-week session, as listed here in the Amended Docket of 26 January 2015:

Right to trial without undue delay (“inordinate” delays of the proceedings)
Rights related to mental competency of a defendant to stand trial
The right to counsel (right to not have the FBI interfere with a defendant’s defense team)
Conflict of interest rights
U.S. national security rights and interests
Access to information (discovery, classified information rights, use of information from undisclosed sources)
Rights of female guards to perform same duties as male guards regarding, for example, shackling and escorting defendants (employment discrimination)
Right to free exercise of religion (male Muslim defendants being touched by female guards)
Right to counsel (defendants not meeting with lawyers because of female guards touching them)
Right to trial by an independent tribunal (with no unlawful interference or influence)
Right to non-interference with professional judgment of the defense lawyers (right to counsel)
Rights related to torture and access to information (Senate report on torture)
Right to conditions of pre-trial confinement (including privacy rights, intrusive searches)
Right to access to the outside world (defendants’ telephonic access to families)
Right to facilities to prepare a defense (including access to computers)
Right to access to witnesses
A defendant’s right to access representatives of his government
Rights under the Geneva Conventions
Rights under the U.S. Constitution

The 26 January 2015 docketing order can be found here.

IU McKinney Affiliates traveling to Guantanamo Bay in February 2015

Professor Catherine Lemmer, IU McKinney School of Law

Catherine Lemmer, who is a lawyer and international librarian at the faculty of Indiana University McKinney School of Law and who has played instrumental roles in the development of the Gitmo Observer, is scheduled to travel to Guantanamo Bay for 9 -13 February hearings. She was at Guantanamo Bay in December 2014 for hearings in that same case. Professor Lemmer has played instrumental roles as library liaison to the Gitmo Observer, and as a developer of the Gitmo Observer website, briefing materials, and project policies. She has also undertaken to help develop the NGO Observer Library, which will be a functioning resource center for NGO Observers to use while they are on missions to Guantanamo Bay to monitor hearings.

Tom Wilson, who is a lawyer and law professor at the IU McKinney School of Law, is scheduled to travel to Guantanamo Bay during the week of 23 – 27 February 2015 to monitor the case against al Nashiri, who is alleged to have masterminded the 2000 suicide attack against the USS Cole, a U.S. Naval ship that was docked off the coast of Yemen, and that killed and wounded numerous U.S. sailors.

Professor Wilson, in preparing for his first mission, will be posting his preliminary observations on the Gitmo Observer blog very soon!

Are you interested in travel to Ft. Meade or Guantanamo Bay?

IU McKinney School of Law students, faculty, staff and graduates are eligible to be considered for travel to Ft. Meade and Guantanamo Bay through the Gitmo Observer. Registration forms are available on our website.

IU McKinney Law School Dean Andy Klein is expected to travel to Ft. Meade, Maryland to monitor military commission trials during the Spring 2015.

*Khalid Shaik Mohammad’s waterboarding is widely reported, including in the Miami Herald, which cites Justice Department and CIA reports

Chuck Dunnlap & George Edwards - 31 October 2014 - With Guantanamo Bay Fair Trial Manual Draft - Stacks

Professor George Edwards (left) with Chuck Dunlap, and IU McKinney graduate who traveled to Guantanamo Bay and Ft. Meade, sitting behind Guantanamo Bay Fair Trial Manuals Mr. Dunlap delivered to Guantanamo Bay (Fall 2014)

(Gitmo Observer Post by George Edwards)

By the Numbers: An Observation on 9/11 Transparency

Saturday, February 7, will find me again in the departure lounge at Andrews Air Force Base awaiting my departure to Guantanamo Bay to observe the 9/11 hearings scheduled to take place the week of February 9. The military commission made the 6-page amended docket available on January 26, 2015. The docket lists over 30 motions; and notes that counsel should be prepared to argue any other motion for which the briefing schedule has concluded.

In an effort to prepare for the upcoming hearings, I went to the military commission website to review the relevant documents. Whenever I go to the case site I am reminded of the overwhelming complexity of these hearings. Here are just a few numbers I noted:

2959 documents listed on the docket (269 webpages)
55 documents filed in January 2015
- 32 documents filed by the defense teams
- 4 documents files by the prosecution
- 19 documents filed by the commission

Of the 55 documents filed in January 2015, three are available for public review. One of these three is the amended docket.

Transparency is one key to making sure there are fair and open trials afforded to the defendants held at Guantanamo Bay. The inability to review court filings casts an interesting shadow on the goal of transparency. Other key elements of fair and open trials are detailed in the Guantanamo Bay Fair Trial Manual that I will be taking and distributing to NGO Observers and other interested persons next week.

(Catherine Lemmer, 9/11 Hearings GTMO, February 2015)