Month: October 2016

My Week in Guantanamo Bay, Cuba

 

For a week in October 2016, I had the most extraordinary experience of my academic life, certainly one of the most extraordinary experiences of my whole life. I traveled to the Guantanamo Naval Station, at Guantanamo Bay, Cuba, to monitor the U.S. Military Commission case against five alleged masterminds of the 9-11 attack on the World Trade Center and the Pentagon. I was nominated to represent the Military Commission Observation Project of the Indiana University McKinney School of Law. Our Indiana program, sponsored by the McKinney Program in International Human Rights Law, is a non-governmental organization (NGO) that is permitted to send law students, faculty, staff and graduates to Guantanamo to monitor hearings.

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Flying to the island

Our flight from Andrews Joint Base, near Washington DC, to Guantanamo Bay, Cuba, was originally scheduled to depart on Saturday, October 8. For reasons that are not very clear to me (click here for more details), a large plane flew for Guantanamo Bay but left at least two groups of people behind – member of the media and 13 NGO representatives, including me. The NGOs flight was postponed until Monday, October 10. That meant that we had to spend two nights in hotels near Andrews, at our own expense.

The original Saturday flight was supposed to be operated as a charter by a regular commercial airline (like United, or American Airlines). Usually, the regular flights carry virtually all Guantanamo Bay participants, including the defense counsel, the prosecution, the judge and the judge’s staff, the media, victims and victims’ family members, interpreters and translators, IT personnel, and other personnel. Everybody travels together on the same plane, arrives at Guantanamo Bay at the same time, and have an equal amount of time on the ground at Guantanamo Bay to prepare for the hearings.

The Pentagon hired a  Jetstream 31, 15 seat private jet to transport the NGOs on Monday morning. The trip from Andrews to Guantanamo on Saturday’s commercial flight took around 3 hours. Our trip on Monday on the Jetstream took over 9 hours, including one layover in Georgetown, SC and one in Opa-Locka, FL. The last leg on the Jetstream, which had no toilet on board, lasted 3 hours. Tough.

We arrived at Guantanamo (“on island”, as they call it) around 8 pm on Monday, and had to hurry to catch the ferry from the landing strip to the main part of the Guantanamo base, otherwise we would need to wait another full hour – until 9 pm – for the next ferry.

We finally made it to Camp Justice, our “tent city” where we would live for the next week. We NGOs left all our stuff in the tents we were housed and went directly to the security area where they made our security badges. After that, it was so late that the only place open for food on island was the Guantanamo Bay MacDonald’s. The tiredness and hunger prevented any complaints. After we ate, the military escorts took us to our tents.  I knew we would be housed in tents, but I confess I underestimated what this entailed. The tent and other facilities were extremely simple.

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The tents were simple and, to keep iguanas and banana rats away,  extremely cold.

 

The first full day

Those who wanted to have breakfast at the Galley, which is the cafeteria where soldiers on base eat, should be ready standing outside the tents at 6:15 am. Worth it. Excellent breakfast for $ 3.45.

The hearings were scheduled to start at 9 am.  So, after breakfast, our Pentagon escorts met the NGOs at 8:00. Even though the walk to the courtroom takes only about 5 minutes, we had to go early so we could go through several security checks, much more extensive than security at any U.S. airport.

After we entered the courtroom, I went to my assigned seat in the Courtroom Viewing Gallery, which is in the back of the courtroom. Between the gallery and the actual courtroom there is a double-pained bullet proof glass. The NGOs, media, victims and victim’s family members watch it from the gallery, where the sound from the courtroom is transmitted with 40 seconds delay, in case any classified information is mentioned. My seat was directly behind the five alleged masterminds of the 9-11 attack. Unbelievable. We were seated only a few feet behind 5 men who allegedly perpetrated one of the greatest crimes in history – the bombing of the World Trade Center and the Pentagon.

The hearings

The hearing lasts from Tuesday to Friday, though some of the hearings contained classified information and those portions were closed to NGOs, media, and victims and their families. Memories of this week in courtroom include arguments about torture, debates about a joint defense agreement (the 5 defense teams agreeing on some points), documents seized by jailers, depositions by closed-circuit transmission, one accused acting in his own defense, the defendants’ prayer ritual in the courtroom, extraordinary arguments on novel topics, and even a few jokes between the judge and the counsels. The hearings are still in the pre-trial phase, though the World Trade Center attack happened over 15 years ago (11 September 2001), and these 5 defendants were arraigned 5 years ago (2011).

To be able to write faster I made all my annotations in Portuguese, my first language. I brought around thirty pages of written records, which I am willing to organize and publish. Thanks to the Indiana University McKinney School of Law’s Guantanamo Bay Fair Trial Manual I was able to follow more appropriately all the procedures.

At the end of the hearings on the first day of the week, the family members of victim’s, who were seated on the right side of the gallery, walked to the left side and stopped right behind the defendants, just in front of my seat. A family member held the picture of her youngest sister against the glass, pointing in the direction of the defendants, who would walk towards us as they were escorted out of the courtroom. This was a very sad and tense moment.

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Conclusion

I left the Guantanamo Bay feeling conflicted. That beautiful place facing the Caribbean blue sea carries sadness and shame. Much needs to be done to reach justice, fair trial, and transparency. My mission is not done. I realized it has just begun. I consider myself a fortunate person to be afforded an opportunity to be the eyes and the ears of the outside world in Guantanamo Bay. Keep tuned! I will publish more!

Observations from Ft. Meade: Monitoring al Nashiri’s Guantanamo Bay pre-trial hearing

I was selected to travel to Ft. Meade, Maryland to monitor U.S. Military Commission pre-trial hearings broadcast live via CCTV from Guantanamo Bay, Cuba to a secure Ft. Meade facility.  I represented the Indiana University McKinney School of Law’s Military Commission Observation Project, which has been sending faculty, staff, students, and graduates to Guantanamo Bay and Ft. Meade to monitor these war crimes proceedings.  The case I was dispatched to monitor was against Abd al-Rahim Hussein Muhammed Abdu al-Nashiri, who is alleged to have masterminded the 2000 attack on the U.S.S. Cole that killed 17 U.S. sailors, and wounded dozens more, off the coast of Yemen. I observed the hearings on October 18th and 19th.

Arriving at Ft. Meade

I arrived at Ft. Meade on Tuesday morning, October, 18 2016, and went to the base Visitor Center to pick up my badge that would permit me to enter the base.  I encountered a slight delay there, as they could not locate my badge.  After about fifteen minutes, one of the employees found the badge in a file on the front reception desk.  She informed the other employee that all of the badges for the hearings are kept in a folder at the reception desk.

Note: If you arrive at the Ft. Meade Visitor Center and they can’t find your badge, ask if it is inside a folder at the reception desk!

After they found my badge, they took my photograph and handed me a paper badge that would allow me access to Ft. Meade for two days.  The receptionist told me to exit through the left side of the parking lot and to proceed to the vehicle inspection area.  After a brisk inspection of the vehicle, I was on the base and easily found the McGill Training Center, where the hearing would simultaneously broadcast from Guantanamo Bay, Cuba.

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Justin at Ft. Meade Commissary

I parked in an apartment parking lot that is located across the street from the McGill Training Center.  I made my way into the building and to the door of the viewing room, which was like a medium-sized high school classroom.  The video feed was already being broadcast and there were four observers in the room, along with a person who I understand was a contractor hired to oversee the process.

In the back of the room is a big chest with individual small lockers where you can store cell phones.  Knowing that cell phones were not allowed to be used in the room, I had left my cell phone in the rental car.

The video was clear, and the sound quality was generally good.  At times the video feed or sound would cut out briefly but it was not often and generally only lasted for a couple minutes.  The room was very cold both days.  I would suggest that anyone observing hearings at the McGill Training Center to dress in layers and bring a light jacket.

al Nashiri Hearing Observations

Military Uniforms

I noticed that the prosecution’s military counsel, namely Chief Prosecutor Mr. Martins, wore a highly decorated uniform compared to the less decorated uniform of the Detailed Defense Counsel, Ms. Pollio.  I have some concern that a jury may be influenced, whether consciously or subconsciously, into believing that Mr. Martin is more credible or knowledgeable because he is more highly decorated than Ms. Pollio.  Although a jury may always form some judgment of an attorney’s capability or credibility by their appearance, attorneys in civilian courts do not display their achievements and accomplishments on their clothing.  al Nashiri may be prejudiced by the prosecution counsel appearing to be a higher ranked and more qualified military member.

Mr. Martin

Mr. Martin

lcdr-pollio

Ms. Pollio

 

 

 

 

 

 

 

 

al Nashiri’s Presence in Court

al Nashiri was present for most of the court proceedings on October 18th and 19th.

al Nashiri

al Nashiri

However, al Nashiri was absent for a little over an hour of the hearing on October 18th.  On October 18th, the court took a brief recess and when the court returned al Nashiri was absent. Mr. Kammen, the defendant’s civilian attorney, informed the court that al Nashiri was not feeling well and that he was in a backroom that had a video feed of the court.  al Nashiri’s counsel confirmed with the court that he voluntarily absented himself from the court proceedings.

 

The prosecution said that there was an issue with al Nashiri’s absence because there had been no in court waiver.  Specifically, Mr. Martin asked the judge to bring al Nashiri back to the courtroom until there was an in court waiver.  The judge said that he was comfortable with al Nashiri’s absence from the court because al Nashiri’s counsel, Mr. Kammen, had spoken with al Nashiri and the absence was going to be brief (approximately thirty minutes).  The judge made a finding that al Nashiri voluntarily removed himself from the court proceedings.  The hearing went for another thirty minutes or so and then the court took recess for lunch.  After the lunch recess, Al Nashiri was back in the courtroom and the judge questioned him regarding his prior absence from the court.  al Nashiri confirmed that he was previously not feeling well and that he had voluntarily left the proceedings.

I felt that the judge made great strides to ensure that the record clearly reflected al Nashiri’s absence being voluntary and uncoerced.  However, I do feel that the process would be more transparent if the video feed showed al Nashiri more often.  Because the video was generally either showing the lectern or the judge, al Nashiri was not seen on the video very often.  I would estimate that over the course of the two days I was in Ft. Meade, I saw al Nashiri on the video feed for a total of approximately ten minutes.  I would have preferred a split screen that showed whoever was speaking and also showed the defense table.  I think the public would benefit from being able to see that al Nashiri was present and engaged in his trial.

I hope we are not arguing about parking spaces

During most of the October 18th and 19th hearings, the days were spent hearing arguments regarding the defense’s claim that the prosecution may have attempted to unlawfully influence the Court of Military Commissions Review (“CMCR”).  The defense had filed a motion to compel the prosecution to release all ex parte communications.  The prosecution had put together a binder of emails, which they voluntarily provided to the judge for him to perform an in-camera review.  The prosecution claimed that the emails were administrative in nature and non-discoverable.  The prosecution further claimed privilege and judicial privilege for the emails.  The judge informed the parties that the only emails at issue were two email chains–-exhibits 355e tabs 3 and 10.  The judge stated “wouldn’t it be better for the public trust to hand them to the defense.”  The judge said that he was keeping the public trust in mind.  Many times throughout the hearing the judge asked if this was really something they wanted to spend time arguing about.  It appeared to me that that judge thought that the two emails chains were not something that the court should be spending two days hearing arguments about.

The defense’s position was that the emails must be relevant and important because the prosecution was fighting so hard to keep them out of the defense’s hands.  The prosecution seemed to be arguing that it was more about principle and that they were not legally required to turn the emails over.  In this respect it appeared that the prosecution was less concerned with the public’s interest in having an open hearing.  Although, the prosecution did argue that it was better for the public’s trust in the proceedings to follow the law and not turn over emails that are not discoverable.  Mr. Kammen retorted by stating that secrecy destroys the public’s confidence, especially in a court where the rules are constantly changing.  Mr. Kammen closed the defense’s argument by saying that he hoped that they had not spent all day arguing about emails that were related to where the prosecution was supposed to park.

The judge granted the motion, but only as to exhibit 355e tabs 3 and 10.  The judge stated that one tab is about parking and the other tab is an administrative discussion about who is going to do a security review.  The remainder of the discovery request was not granted and will stay under seal in the record.  The judge appeared to be annoyed that two days had been spent arguing over emails that were administrative and generally unimportant.  The judge stated that the emails are not privileged and not discoverable.  However, because the prosecution had voluntarily provided them to the judge for an in-camera review, he was obligated to make a decision on them.

After the decision, Mr. Martin basically stated that he did not think that the judge had the authority to order the government to turn over the emails.  The judge retorted that he was confident that he had the authority.  The judge informed Mr. Martin that he had made a decision and had the authority to do so.  He told Mr. Martin that the court was about to take a recess for lunch and that Mr. Martin should turn the emails over to the defense during the recess.  The judge also told the defense counsel to think about what remedy they would ask for in case the prosecution did not turn over the emails.  After the court returned from lunch, the prosecution turned over the exhibits 355e tabs 3 and 10, although Mr. Martin continued to argue that he did not believe that the government was required to do so.

I understand the need to follow the law.  In this case, considering that the prosecution had voluntarily provided the emails to the court, I think it was proper to release them.  If the emails were not released, it would have seriously eroded my confidence that the emails were only administrative in nature.  The prosecution fought very hard to keep the emails out of the defense’s hands, and it seemed to me that the emails likely contained ex parte communication that was not just administrative.  I was somewhat surprised when Mr. Martin agreed to turn over the emails after the lunch recess.  However, his doing so made me feel that the proceedings were more transparent and that the prosecution was not concealing unlawful ex parte communications.

Repeated Defense Counsel Complaints

Unlike an Article Three court, the defense cannot simply call anyway witnesses that they would like to question.  Mr. Kammen repeatedly stated that the prosecution must approve of any witness that the defense wishes to call.  If a person’s testimony was going to be severely adverse to the prosecution, it appears, according to Mr. Kammen’s argument, that the prosecution could deny the defense the opportunity to call that person as a witness.  This seems very unfair and it would certainly hinder the defense counsel’s ability to properly defend al Nashiri.  Additionally, the ability to keep relevant witnesses out of the courtroom significantly hurts the transparency of the proceedings.  If the Commission wishes to have transparent proceedings, all relevant witnesses should be allowed to testify.  This is the only way to ensure that the proceedings will result in a just outcome.

Another claim by the defense is that al Nashiri’s housing during the hearings is inadequate.  The defense wants to call two witnesses, both are employees at Guantanamo Bay, but the prosecution is not allowing them to call the witnesses.  At the same time, the prosecution is stating that the defense has the burden to prove the claim.  al Nashiri’s defense counsel, Mr. Kammen, complained that it is unfair for him to have the burden to prove a claim but not have the ability to call the witnesses that he needs in order to prove the claim.

Conclusion

At the end of the day, I feel that the judge was working hard to get past some of the petty arguments raised by both sides.  He came across as being very aware that the process needed to be as transparent as possible.  However, the case does not appear to be close to actually going to trial yet.  Considering that this case has been going on for 16 years, there has to be a way for the Commission to act more efficiently, while also serving justice in a fair and transparent manner.

For those who are interested in being an observer, I highly encourage you to apply.  The IU McKinney Military Commission Observation Project is a unique opportunity and has been designed to get observers up to speed quickly.  I found that the Guantanamo Bay Fair Trial Manual was very helpful for gaining an understanding of the proceedings and the background information necessary to understand the hearings.

Justin W. Jones, J.D. Candidate (2018)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University Robert H. McKinney School of Law

 

Post Hearing Report

October 21, 2016

By: Casey Seaton

The al-Nashiri hearings I was scheduled to observe were to take place October 17-19. . . .  I managed to catch the October 18th.  Missing the 19th was part of my scheduled plan as I needed to return to work in Indianapolis, but missing the 17th was an unscheduled but not unanticipated scheduling change.

As many know, hearings are subject to change; that is even more so the case for the hearings of this commission.  Instead of starting at 0900, the first day of the hearing was rescheduled for a start time of 1300.  The scheduling change was due to some sort of setback between al-Nashiri and his lawyer.  A change of counsel was mentioned, though I cannot confirm that is what caused the delay.

At any rate, since everyone at Ft. Meade–seemingly everyone but the individual in charge of streaming the video feed–was in the dark about the rescheduling, I naturally made sure to show up plenty early for the 0900 start time I then still believed was in effect.  Being early, I had plenty time to take a brief self-guided tour of the base; I got to see it amid a beautiful, crisp Maryland morning, and I even came across a street named for one of Indiana University’s most revered alumni:

The lack of knowledge about the rescheduling was not much of an issue though as it gave Prof. Edwards and myself time to tour the military base and take, I believe at last count, half a billion photos in front of various Ft. Meade related signs.  A few samples are shown here:

The afternoon start time proved to be ineffective at Ft. Meade as well.  Though the hearing had commenced down in Cuba, the audio and video feeds were faulty at our location.  Word is that this was the first time in seven years of doing this at Ft. Meade that technical difficulties carried the day.  We later found out that severe storms temporarily damaged the transmitter down in Cuba, causing the malfunction.  Fortunately, IU McKinney student-observer David Frangos was live at the Gitmo site and fully filled us in on all the relevant details.

Tuesday, October 18th proved to be a much smoother ride.  The hearing began promptly at 0900 as scheduled.  The morning hours of the hearing were filled with oral argument by military members representing both the government and the defendant.  As a slight aside, the military member representing the defense during this session was female, a fact relevant to the balance of employment versus religious rights issues that occasionally creep into these settings.  Though attempting to keep a neutral perspective on the entire process and each involved individual’s rights and stakes, I admittedly feel strongly biased here in favor of the woman, which is why this is as far into this issue as I will delve given the context and point of these observation positions.

Now back to our regularly scheduled report: Each side questioned witness Michael Quinn, a higher ranking military man brought, remotely, as the defendant’s witness but seemingly favoring the government’s story.  Mr. Quinn was testifying as a witness for the defense as they attempted to make their case that the military commission set up to oversee and overhear these terrorism trials was flawed, perhaps legally unsupported, and untrustworthy.  On direct examination, Mr. Quinn seemed to be getting cross examined, and on cross he seemed to be on direct.  It was a bit odd, but for the purpose for which the defense called him to testify, perhaps the facts just lent themselves towards supporting the government’s argument.  It did seem as though the defense was really stretching and contorting their argument beyond what evidence of foul play they had, but perhaps that was just a combination of my lack of understanding and the defense counsel’s lack of clarity.

After a lunch break, the afternoon portion of the day’s hearing began.  This section of the hearing was much more understandable and thus easier to follow, perhaps because of the background knowledge that came as a result of observing the morning session.  This session was dominated by Mr. Kammen, a high-profile defense attorney from Indianapolis, and Mr. Martin, a highly decorated military officer, representing, as he put it, “a very large client in the U.S. government.”  We did catch two glimpses of the defendant, but we never heard him speak.  He was present only for the afternoon session this day because he had been feeling ill and opted not to attend the morning session.

The afternoon was dominated by what swelled to become passionate colloquy about a couple of emails, only it wasn’t about the emails, only it was. . . .  Apparently, the government and the judiciary, not the presiding judge but someone else in his camp, exchanged a few emails without letting defense counsel know about the exchanges.  In some circumstances, this is allowed, such as when it is clear that the exchanges were simply regarding housekeeping, administrative issues.  In all other cases, such ex parte exchanges are considered prejudicial foul play and are highly disfavored by the unincluded party.  Such exchanges as the latter also cast a vast shadow of distrust and abuse of discretion over the entire process, since both the prosecution and the judiciary are actually government-related creatures.

This high level of mistrust and skepticism was what made this seemingly non-issue into such a majorly contentious point.  The defense wanted the judge to order the government to turn over the communications for the sake of transparency and integrity and to counter the history of “iffiness” about the trustworthiness of the commission that has pervaded the years of litigation involved with these terrorism charges.  The government’s interest in keeping the communications out of the hands of the defense was to avoid setting a precedent of having to disclose what they considered work product or confidential communications over to the defense.  Essentially, it was the public policy versus the slippery slope argument.  The judge did not rule on this issue the day I was there.

The judge was put in a precarious position, but he did a good job of transparently explaining his thought process in weighing the evidence and the effect of his decision-making.  He repeatedly emphasized, essentially, how much time is wasted year-in-and-year-out over such seemingly trivial issues.  I believe this is why he kept pushing the defense to trust that the communications in dispute were in fact trivial.  Still, the defense did a good job of using reason to express why he felt obligated to distrust this approach, however trustworthy he actually thought the judge.

The judge clearly wanted to take a pragmatic approach and get the ball rolling on these hearings, largely for the sake of the families of victims involved, among all others who have committed so much time to these cases, whether voluntarily or not.  I appreciated how the judge pushed each side by using the best, strongest, toughest arguments of one side against the other.  He would appear strongly in favor of the side adverse to the person he was questioning thereby really making each side’s counsel clarify their points and make their case in the most persuasive ways possible.  He would then express that he is still wholly undecided and will really need to think this through.  I thought it was a very effective approach.

I am glad to have participated in the hearing observation program, but I do have two major criticisms about the hearings and this process as a whole.  From my vantage point, the long drawn out nature of these cases (over 16 years thus far for this case) is extremely excessive.  I mean, this case is not even close to going to trial.  This process needs to be revamped for efficiency going forward for the sake of all parties involved.  Further the entire process needs to be revamped for the sake of economical soundness.  From what I understand, defense counsel are flown to and from their places of residency, for Mr. Kammen that would be Indianapolis, IN, to either DC or Cuba (oftentimes on more or less empty military planes for the Cuba trips) each and every time something as minimal as a legal paperwork filing happens.  I would imagine that is only the tip of the iceberg when it comes to such waste too, unfortunately.  I understand that the reason for such apparent waste is security, but in today’s technological age and with our country’s know-how, we can definitely do better, be more efficient, and provide fairer trials beneficial to all involved.

Preparing To Travel To Ft. Meade

Introduction

My name is Justin W. Jones and I am a 3L evening student at the IU McKinney School of Law. I work as an accountant, and I am also an extern at the United Staaeaaqaaaaaaaaiiaaaajdc1yjhlyjg5ltliodgtngmyys1hmdqzlwfkmmm3zdm5ymiyyqates District Court- Southern District of Indiana. I am honored to have been selected as an observer for the IU McKinney U.S. Military Commission Observation Project and look forward to contributing to the project. I am scheduled to monitor the hearing of Abd al-Rahim Hussein Muhammed Abdu al-Nashiri. My fellow IU McKinney classmate, David Frangos, has an excellent post on this blog discussing the upcoming al-Nashiri hearing (dated October 10, 2016).

As I type this post, I am currently finishing a fall break road trip with my fiancée and daughter. We are driving over 4,000 miles in nine days and have had the opportunity to see and experience many great parts of our country. Some of the highlighdsc_0084ts of the trip were Yellowstone National Park, Jackson Hole, the Badlands, and Mt. Rushmore.

While looking at Mt. Rushmore, I was reminded of a quote by Abraham Lincoln: “[A] law may be both constitutional and expedient, and yet may be administered in an unjust and unfair way.” The Military Commission Observation Project allows us to hold our government accountable for administering our laws in a just and fair manner. We owe it not only to the defendants, but also the victims and their families, the media, the prosecutors, and everyone else to ensure that our government is held to a high standard that makes us proud to be Americans. My goal is to accurately and impartially report my observations.

Schedule

I will be monitoring the proceedings in the case against al Nashiri. He is the alleged mastermind of the 2000 bombing of the U.S.S. Cole, which resulted in the death of 17 U.S. sailors. The hearing was originally scheduled to run from October 17 to October 21. I have been informed that the court has reduced the hearing down to three days, October 17-19. I will be leaving Indianapolis on October 18 and plan to arrive at Ft. Meade by 8:30am the same day. If everything occurs as scheduled, I will be able to monitor the hearing on October 18 and 19.

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         al Nashiri

I was notified that the hearing scheduled for today was delayed until the early afternoon. Further, the video feed to Ft. Meade was not working. Hopefully the IT issues will be fixed by tomorrow morning.

Preparing for the hearing

I have used the many hours I’ve spent in the car over the past week to prepare for the upcoming hearing. I have been reading the Guantanamo Bay Fair Trial Manual and the many excellent posts on this blog. I hope that my efforts are beneficial in promoting transparency in the legal proceedings that will occur this week.

I look forward to making more posts in the next couple of days.

The Seeds of Principle, the Growth of Diplomacy

By Casey Seaton*, October 15, 2016 (pre-Ft. Meade).

Diplomacy is defined, most basically, as a noun meaning something along the lines of governmentally-representative exchanges between nations. Those exchanges can take the form of trade deals, arbitral negotiations, peace talks, hostage releases, money transfers, media management, land rights discussions, immigration quota standards, natural resource use provisioning, joint relief efforts, and joint war efforts . . . just about anything but actually being at war against one another. That act of going to war against one another marks some failure of diplomacy. But if law school has taught me anything—besides that the answer is always “it depends”—it’s that when a problem arises, so too does an opportunity.

So what in the world does any of that have to do with Gitmo? Well, I’ll tell ya. Gitmo is, of course, a United States Government prison facility, to put it in the plainest terms. As such, it is an extension of the U.S. Government. Given its secretive and consequently legendary yet infamous existence, it has become much more than a simple government prison facility. It has become much more than an alleged terrorist holding site. And it has become much more than a political chess piece inside American politics. Guantanamo Bay Detention Camp has become a metaphor for the bedrock of America.

Gitmo tests America’s resolve for upholding some of our most core principles of life, liberty, fairness, and justice. It takes persons who are despised on a national and even international scale and, ideally anyway, makes certain that such persons are treated humanely and fairly until their culpability is judged. If we as Americans fail in our own courtroom to uphold the principles that we base our daily lives on, our societal structure on, then how can we be trusted, how can our word be honored diplomatically when we promise to conduct affairs outside of the courtroom based on these principles? In other words, if we fail to honor our core values in court, in a setting arguably representing the most direct connection to law in its reddest form, how then are we to be trusted to honor those same values elsewhere?

Right, right, right. That’s some great idealism and all, but still, what’s the link between diplomacy and Gitmo?

It’s this. War itself may not be diplomacy, but the failed diplomatic efforts that lead to war do produce diplomatic effects. The prisoners that end up being taken from one land and brought to and held in another create a situation that, at its core, tests the principles upon which diplomatic relations so often stand.

Therefore, Gitmo is a test and a bridge. It tests our resolve to stick to our core principles in what could easily transform into an emotionally-driven, biased-laden environment. It is a bridge between (a) honoring those principles in some of the toughest situations here at home wherein we are our only critics and (b) consistently applying them abroad through the promises diplomats promote. The way we act in the privacy of our own home—albeit a home on a separate island—should be the way we act outside of it as well.

This Guantanamo Bay Military Commission Observation Project provides a means of ensuring that our collective conduct is adequate here at home. It allows curious-minded, legally-trained people like me to be the public eye on the trials. The problem of war, terror, and the trials stemming therefrom then becomes an opportunity for practicing and spreading American ideals.

Conversely, some view this Project as a concession to terrorists. That is a poor view for one central reason; we, as observers, aren’t charged with rooting for persons accused of attacking our countrymen.   No. Instead, we are charged with making sure our ideals aren’t only stated but are consistently put into practice in each and every case, no matter how high the emotional stakes. Without domestic diplomatic missions, of sorts, like the one I am about to make to Ft. Meade, a mission diplomatic in the sense that I am an envoy seeking to safeguard the best of American principles, we lose the benefit of being able to show other nations, ‘hey, we do stand by our promises even when we seemingly will have little perceptible gain.’

Of course, having yet to visit Ft. Meade or Guantanamo to see the conduct of these trials, this is all merely speculative, quixotic prose. My main goal then in viewing the al-Nashiri trial next week, a trial the basis of which IU McKinney student and career military officer David Frangos expertly discussed in his October 10th post on this blog, is to: 1. See if my views linking Gitmo to diplomacy actually do have some practical resonance, and 2. Be an active participant watchdog for American principles. These two goals are of course intertwined, and my participation in the latter has a chance of ensuring the former. I say this because I aspire to be a U.S. diplomat (a.k.a. foreign service officer), which explains the prevalence of diplomacy focuses throughout this piece. As a diplomat (eventually), I can hopefully use what I take from goal number 2 and apply it to confirm the success of goal number 1.  I want to see the seeds of U.S. ideology sprout into U.S. diplomatic doctrine.

*Casey is a May 2016 IU McKinney Law grad who successfully completed the July 2016 Indiana Bar Exam and was recently sworn in to practice law at the state level here in Indiana and at the federal level in the Southern District of Indiana. (The proximity of my writing this piece and my having heard inspiring, romantic, starry-eyed speeches from the state’s top justices should help explain the surplus of idealism in this blog post.) Casey currently works for the downtown Indianapolis firm of Doninger Tuohy & Bailey, LLP and is involved with an assortment of Indianapolis-based organizations focused on local to international exchange.

9/11 Guantanamo Hearings Start with Fireworks, Focus on Rights of the Accused

mcop_mcgill-training-centerYesterday, I monitored the first day of this week’s pre-trial hearings in the case against the alleged 9/11 masterminds. I viewed the proceedings via secured video link at the McGill Training Center at Fort Meade, Maryland, and represented the Indiana University McKinney School of Law’s U.S. Military Observation Project.

A Defendant’s Defiance

“I don’t understand,” Ramzi bin al Shibh snapped at Military Commission Judge, Army Colonel James L. Pohl, upon being asked if he understood his rights to be present or absent at the hearings against him and four other alleged masterminds of the 9/11 Word Trade Center and Pentagon attacks. bin-al-shibh

bin al Shibh, who allegedly helped hijackers find flight schools and enter the United States in addition to helping fund the operation, has alleged that the guards at Guantanamo Bay’s Camp 7 have been tormenting him and keeping him awake by shaking or vibrating his room and bed despite Judge Pohl’s order to cease the alleged conduct.

At the beginning of each week of pre-trial hearings, the 9/11 military judge requires each defendant to be physically in the courtroom, and asks each defendant whether he understands certain rights.

“You don’t understand your rights?” Judge Pohl asked bin al Shibh, noting that they had been through similar rights colloquies on other occasions.

bin al Shibh seemed to believe that Judge Pohl was being inconsistent and therefore unfair in enforcing rulings. He appeared to be upset that Judge Pohl could force him to be present at the hearing Tuesday, the first day of the hearing week, but that the guards at Camp 7 did not, according to bin al Shibh, have to comply with the Judge’s orders.

The two had a quick, yet contentious back-and-forth regarding who had to listen to whom.

Near the end of the exchange, Judge Pohl stated that if bin al Shibh “did not understand” his rights, that he would continue to be brought back in front of the court until it was clear that he did understand his rights. Judge Pohl then ordered bin al Shibh—who continued to talk over him—out of the courtroom until after the lunch break. On the CCTV, we could hear bin al Shibh continue to yell at the judge, even after bin al Shibh left his chair and was being escorted outside the courtroom. I learned from our Indiana McKinney observer who was physically in the courtroom’s gallery during the outburst that those sitting in the gallery behind double-paned glass could hear bin al Shibh yelling even after he left the courtroom and was on his way to his holding cell.

Other Defendants Acknowledge Their Rights

The other four defendants, Khalid Sheik Mohammed—who wore a green camouflaged “army” coat, what appeared to be a white Pakol (hat), and a red beard—Walid bin Attash, Ammar al Baluchi (aka “AAA”), and Mustafa al Hawsawiall acknowledged their rights. They all answered “yes” in Arabic when asked if they understood.

Judge Pohl’s Control of the Courtroom

judge-pohlAt the beginning of the hearing, and especially during the contentious exchange with bin al Shibh, Judge Pohl appeared to keep his cool, and he allowed all of the accused to speak. To keep control of his courtroom, he could have reacted more assertively and perhaps even had bin al Shibh restrained. But he did not. And, bin al Shibh re-joined the hearing after the lunch break, though it was unclear from the video feed how he had changed his behavior during the remainder of the proceeding, though I did not observe any additional outbursts during the day.

bin Attash Complains

After the exchange between Judge Pohl and bin al Shibh, another defendant — Walid bin Attash — addressed the court and protested his counsel. He raised four points, which he said wanted to make for the record.

First, he said that he did not believe his defense counsel was helpful to him and therefore he didn’t want them.

Second, he appeared to state that no legal mail had been exchanged between him and his defense counsel, though it is not exactly what he was saying. I plan to check the transcript as soon as it is posted and update this blog post.

Third, he stated that he has had no meetings with his defense counsel since last year.

Fourth, he appeared to tell the Commission that the “ill” of the actions he alleged of his defense team, “will make them part of killing me…and part of the government’s decisions,” and that they would be of no help to him. Again, I plan to check the transcript as soon as it is posted and update this blog post.

al Hawsawi’s Motions

After the bin al Shibh and bin Attash fireworks subsided, the defense team for al Hawsawi called witnesses and made motions focusing on the rights of the accused related to material covered by attorney / client and other privileges that was removed from al Hawasi’s Camp 7 cell when a staff member inspected his cell in 2015.

Walter Ruiz, counsel for al Hawsawi, examined two assistant staff Judge Advocates (SJA) who were stationed at Camp 7 during those inspections. Ruiz inquired about what legal materials al Hawsawi is permitted to have in his cell; how those materials are to be marked to indicate that they are protected; where in those cells those legal materials are to be maintained; procedures for when materials are located in the cell and the materials are not in a “legal bin” and are not “marked”; and how all of that comported with Judge Pohl’s order regarding the protection of an accused’s legal documents.

Colonel Sterling Thomas, who represents al Baluchi, questioned the current SJA, known in the hearing as “Major.” It appears as though he suggested that because the accused help with their own defense, the accused need to be able to create their own documents. And, if there were a protocol for giving the accused pre-marked / pre-stamped sheets to use for their work product, guards and others would know that words written on those sheets were protected and not subject to retention or seizure. The lack of a protocol could put defendants at a disadvantage and give the government an upper hand. The lack of a protocol could also tend to diminish defendants’ trust in the process.

I believe that the lack of protocol also might present concerns for the government, specifically regarding guard safety and national security. If pre-stamped / pre-marked sheets are essentially deemed invincible and shielded, then it is possible that those sheets could communicate potentially harmful acts or plans within them.

Furthermore, it was revealed that the translator, who possessed no legal background or qualifications, determined whether the documents were legal in nature. This is a concern for both the government and defense, and it is counter a requirement that an impartial third-party review documents for their safety and legitimacy. If someone must determine that a particular document is protected by privilege, the one who makes the determination about the nature of the words on the page should be trained as an attorney.

al Baluchi’s Motions

al Baluchi’s team focused on allowing access to certain redacted documents. To be sure, the accused have a right to certain classified information, especially if it is being used against them. It’s necessary to the right to a fair trial and the right to have the effective assistance of counsel.

Yesterday’s motions focused on documents with alleged arbitrary redactions; redactions of the specific names of personnel; and some documents which were identical in content but contained different redactions which would arguably unnecessarily burden defense counsel who would need to piece the information together.

Other redactions contained certain incidents involving the accused to which Judge Pohl exclaimed, “He was there! What are we keeping from him?”

Defense counsel argued that in capital cases, it is essential for an adequate defense to be able to confront witnesses for better or worse, and preferred that the military Judge review the redactions to ensure that the information was not material; rather than taking the prosecution at its word.

The government argued the redactions were needed for “force protection” (protecting guards, staff, etc.) and national security.

My Conclusions

mcop_observer-group-pic-commissaryThe hearings illuminated the very fine line that the court must walk in balancing the rights and interests of the accused and the rights and interest of the United States government, as well as the rights and interests of other stakeholders – including, for example, JTF-GTMO personnel, the victim’s and their families, the public, the media and others.

 

Mike Cunningham, J.D. Candidate (2017)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University Robert H. McKinney School of Law

Arriving at Ft. Meade to Monitor Guantanamo Bay Hearings

I completed the first leg of my journey from Indiana to Ft. Meade, Maryland to monitor the U.S. Guantanamo Bay Military Commission case against the 5 alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon. The hearings are being broadcast from Guantanamo to Ft. Meade this week. I am monitoring as a representative of the Military Commission Observation Project (MCOP) of the Program in International Human Rights Law of Indiana University McKinney School of Law.

My arrival in the DC area

I arrived at Washington-Dulles Airport late last night (Sunday) and proceeded to Ft. Meade, where my fellow Indiana McKinney student Katherine Forbes was waiting to escort me onto the base. Katherine was able to escort me on to base since she is also a member of the Indiana National Guard.  She and I are staying at a hotel inside of Ft. Meade, which makes picking up our badges and attending the hearings very convenient.

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Katherine Forbes (left) and I in our hotel room inside Ft. Meade.

My DC tour after hearing opening delay

Originally the hearings this week were scheduled to begin on Monday, 10 October 2016. Since the hearings were pushed back to start a day later on Tuesday the 11th, I decided to use Monday to visit Washington D.C., since I have never had the chance to visit before.  I took a train from Odenton MARC station near Ft. Meade, and was dropped off at Union Station in D.C. about 40 minutes later.  From there, I took a taxi to the Lincoln Memorial.  As I walked up to the monument, I was struck with a surreal moment of finally seeing the statue of Lincoln in person, only every having seen it in media.  I sat on the steps of the memorial, looking towards the Lincoln Memorial Reflecting Pool and the Washington Monument, and thought of how Dr. King must have felt, standing in the same location, giving the “I Have A Dream” speech to thousands of supporters.

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Spending time at the Lincoln Memorial.

From there, I walked down the National Mall, stopping at the Vietnam Memorial, as I made my way to the White House.  There it was, as I’d always seen it in videos and pictures.  I was surrounded by people speaking in foreign languages, French, Spanish, Vietnamese, German – other languages I couldn’t distinguish.  It was an honor to me, at that moment, realizing that these people had traveled thousands of miles to visit our center of government, and the heart of our great nation.

After the White House, I walked over to the Smithsonian National Museum of American History, before making my way to the United States Supreme Court.  There were less tourists at the Supreme Court than anywhere else I had visited, so I took my time and enjoyed the near-deserted symbol of American jurisprudence.

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Enjoying a beautiful, sunny day on Capitol Hill.

Unfortunately, since today is a federally recognized holiday, the court was closed, so I enjoyed the view of the Capitol building from the steps of the Supreme Court, before making my way over.  The Capitol building was my last stop for the day, having walked several miles, and needing to prepare to observe the hearing tomorrow morning.  I made my way to the Union Station, and caught a train back to Ft. Meade.

Conclusion

So far, this trip is, to me, what law school is all about.  To be exposed with a wide variety of experiences makes for a well-rounded individual. Today prepared me for tomorrow in a way I couldn’t imagine before.

Speaking of tomorrow, I have been spending time preparing for the hearings, trying to learn as much as I can about the case. I am looking forward to it.

The Flip-Side: Monitoring Guantanamo Bay Hearings via CCTV at Ft. Meade, Maryland

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This looks like just a picture of a fence. It is. But, behind this fence is the courtroom for the military commissions in Guantanamo Bay. For security purposes, this is the only permitted photo of the Military Commission courthouse. Part of my job there was to make sure this was the only photo the media took directly of the courthouse area.

From June 2013 to February 2014, I was deployed to Guantanamo Bay as an Army public affairs non-commissioned officer. While there, I worked in the Media Operations Center (MOC) where the foreign and domestic media watch the pre-trial hearings via a live feed from the courtroom. When court was not in session I made sure the media had transportation, a comfortable and clean tent to sleep in, and followed the security rules set in place. But when the court sessions began, I would sit and watch the hearings live feed with the media. The two cases I saw concerned the alleged masterminds of the 9/11 attacks on the World Trade Center and of the 2000 attack on the U.S.S. Cole off the coast of Yemen.

I often watched these hearings with fascination at how the arguments were presented and wondered what their implications were for the realm of international law.

All of that was before I started law school.

Now, I am in my second year at Indiana University School of Law studying international law. The Guantanamo Bay, Cuba U.S. Military Commission Observation Program (MCOP) through the Program in International Human Rights Law (PIHRL) of Indiana University McKinney School of Law provided the opportunity to travel this week to Ft. Meade, Maryland, where pre-trial hearings are being broadcast live via CCTV direct from the Guantanamo Bay courtroom. Unlike three years ago, I will be an objective and independent human rights observer specifically tasked with attending, observing, analyzing, critiquing, and reporting what I see and hear. That is my role with the Program.

I am enrolled in an International Criminal Law course this semester, taught by Professor George Edwards. In this course I am researching a section of a Guantanamo Bay Fair Trial Manual. I am using this opportunity at Ft. Meade to gain further insights into my research topic for the Manual.

My mind is eager to know more about this process and to witness these hearings as a student of the law—to be a part of the flip side.

Katherine M. Forbes, J.D. Candidate 2018

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University Robert H. McKinney School of Law

John Adams, the Rule of Law, and the Alleged 9/11 Masterminds

I am honored and humbled to have been selected as an observer for the IU-McKinney U.S. Military Commission Observation Project. This week I will monitor the hearings of Khalid Sheik Mohammed and the other alleged masterminds of the 9/11 attacks on the World ksmTrade Center and Pentagon. I’m excited to contribute to the betterment of the  Guantanamo Bay Fair Trial Manual.

I take very seriously my duty, in this historic project, to be the eyes and ears of the outside world, and to report on these commissions “independently, impartially, accurately, and with integrity.”

headshotAs a member of the “9/11 generation,” this project is particularly special to me, because it allows me to directly participate in promoting the liberty and security of all mankind. Terrorism, war, and international crime in a global world are things with which we — the United States — must deal. But how we proceed is crucial to fostering that liberty, peace, and security for generations to come.

bostonmassacretrialIf we are to be a force for good in this world, then we must be vigorously devoted to our principles of fairness and justice—even in the hardest of circumstances.

That is achieved through a steadfast commitment to the rule of law.

In his defense of the British soldiers in the Boston Massacre trials, John Adams eloquently argued that:

The law, in all vicissitudes of government, fluctuations of the passions, or flights of enthusiasm, will preserve a steady undeviating course; it will not bend to the uncertain wishes, imaginations, and wanton tempers of men.…The law, no passion can disturb. ‘Tis void of desire and fear, lust and anger. ‘Tis mens sine affectu; written reason; retaining some measure of the divine perfection. It does not enjoin that which pleases a weak, frail man, but without any regard to persons, commands that which is good, and punishes evil in all, whether rich, or poor, high or low, ‘Tis deaf, inexorable, inflexible.  On the one hand it is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder to the clamours of the populace.

The IU-McKinney U.S. Military Commission Observation Project helps hold our government to high standards, of which we can all be proud. This accountability encourages improvement and it provides us with an opportunity to set a good example for the rest of the world, which in turn emboldens the United States with the necessary credibility to be brokers of peace and diplomacy.

Mike Cunningham, J.D. Candidate (2017)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University Robert H. McKinney School of Law

My Mission to Guantanamo Bay – Monitoring the U.S.S. Cole Case Against al-Nashiri


I was selected to travel to Guantanamo Bay, Cuba to monitor U.S. Military Commission prdavid-frangosoceedings in the case against al Nashiri, the alleged mastermind of the 2000 bombing of the U.S.S. Cole off the coast of Yemen, killing 17 U.S. sailors and wounding dozens more.img_7049-1

I applied for and was accepted as a non-governmental organization (NGO) monitor with the US Military Commission Observer Project (MCOP) through Indiana McKinney School of Law’s Program in International Human Rights Law (PIHRL). As a student at IU McKinney, I am enrolled in an International Criminal Law course taught by Professor George Edwards, who also founded the school’s Military Commission Observation Project. As part of this class, I and other students are researching and drafting the Guantanamo Bay Fair Trial Manual, which is used by monitors around the U.S. who travel to Guantanamo Bay to seek to ascertain whether all stakeholders are being afforded their rights. This Manual explores the rights of the defendants, and also explores the rights and interests of the prosecution, victims and victims’ families, the media, the guards at Guantanamo Bay, witnesses, monitors, and others.

Why did I apply?

I applied to the observer project to learn more about how internationally recognized rights are or are not available for people involved with Guantanamo Bay. I was initially thinking about rights of detainees only in the U.S. Military Commissions at Guantanamo Bay, but now I understand that there are more stakeholders. I was also interested in learning more about Guantanamo Bay, generally, and the law that is applied there – much of what I am learning about in my International Criminal Law class. Finally, I believe that my travel to Guantanamo Bay will help as I continue to research and write my sections of the Guantanamo Bay Fair Trial Manual.

Before now, most of what I knew about Guantanamo Bay has come from media reports.  That is, until I enrolled in International Criminal Law, taught by Professor Edwards.  In the class I have been learning about the military tribunal at Guantanamo Bay and hoimg_0603w international law applies to and plays a role in the hearings and trials of the detainees held at Guantanamo. I am a career military officer, and have spent the majority of my adult life in the military. I am also a law student and attend the evening law program at IU McKinney. This has given me a strong desire to observe all sides of the legal issues at Guantanamo.  Going to Guantanamo Bay and seeing firsthand what the pre-trial hearings entail is the best way to fully explore these issues.

As a career military officer I was surprised at how little I knew about this topic and the law that surrounds these issues.  Hopefully traveling to Guantanamo will help provide a better understanding of both international criminal law and how it applies in a military tribunal. I am thankful to have been accepted for this Guantanamo Bay mission. I have been diligently preparing by reviewing the Military Commission Act of 2009 and other related resources.  The dates I am scheduled to attend hearings are October 17-21, 2016.  The plans are for me to travel to Andrews Air Force Base near Washington, D.C. in order to connect with a military transport. From Andrews AFB the military transport is schedule to take me to and from Guantanamo Bay.

The U.S.S. Cole bombing defendant

During the week I am scheduled to be in Guantanamo Bay, the court will be holding hearings in the case involving the October 2000 USS Cole attack.  The Defendant is Abd al-Rahim Hussein Muhammed Abdu al-Nashiri. Surprisingly, al-Nashiri has been held in U.S. custody, without a trial, for 16 years.

Professor George Edwards created the Guantanamo Bay Fair Trail Manual, mentioned above.  As described by the Manual, it  “identifies general categories of internationally-recognized rights that apply to fair trails in the U.S. Military Commission context, and explains how these rights have been interpreted and applied by U.S. and international tribunals.”  You can access the Manual here. I am responsible for researching, drafting, and updating multiple sections of Manual.  These sections include the “Right to Trial by Competent Independent and Impartial Tribunal” and the “Right to be Present at or Absent Form Pre-Trial Hearings.”

The schedule

Since being accepted as an observer I have received notice that the court already reduced the hearing days down to three days instead of five.  The scheduled hearing days are now 17 Oct – 19 Oct. Hopefully the court will not reduce the hearing days even more or cancel them completely. I have also been reading another IU McKinney student, Aline Fagundes blog.  Aline Fagundes was supposed to travel to Guantanamo Bay Cuba on Saturday the 8th of October, but has been rescheduled to Monday the 10th of October, due to hurricane Matthew. Hopefully there are no more delay’s and she makes it to Cuba in time to make her trip valuable as an observer.  Hopefully I do not have the same delays, especially considering the short week we already have scheduled.

Defense Counsel

In the U.S. Military Commission, if the defendant faces the death penalty, the court is required to ensure that the defendant is assigned “Learned Counsel”, that being defense counsel with experience handling death penalty cases. The Learned Counsel in this case is Mr. Richard Kammen, who happens to be a criminal law practitioner based in Indianapolis, IN. This is of particular interest due to my attendance at IU McKinney School of Law also located in Indianapolis, IN.

Professor Edwards was recently at Guantanamo Bay for hearings in the al Nashiri case, While there, Professor Edwards conducted our International Criminal Law class by video conference and included guests, Mr. Kammen and his military co-counsel, Lieutenant Commander Jennifer Pollio. My understanding is that this may have been the first such law school class conducted live from Guantanamo Bay to the United States. Mr. Kammen is scheduled to come to our law school in the near future to speak to our class again. Hopefully when I travel to Guantanamo Bay I will have the opportunity to meet Mr. Kammen and speak with him about the hearings.

David Frangos, J.D. Candidate (2018)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a member of the United States Army, or the Indiana Army National Guard, and do not necessarily reflect the opinions of the U.S. Government, the U.S. Army, or the Indiana University Robert H. McKinney School of Law.

Ready to fly to Guantanamo Bay – Cuba

I am now at Joint Base Andrews Naval Air Facility Washington, known as JBA – Joint Base Andrews (joint base due to the merger of the Andrews Air Force Base and the Naval Air Facility Washington). The JBA is the home of Air Force One, the aircraft that carries the President of the United States.

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I just met the other NGO’s Observers who, like myself, are scheduled to fly to Guantanamo Bay to monitor hearings in the case against Khalid Shaik Mohammad and four other alleged masterminds of the September 11 attack on the World Trade Center and the Pentagon (please, see my previous posts clicking here).

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I distributed to each NGO Observer a copy of the Guantanamo Bay Fair Trail Manual

 

The hearings are now scheduled to start tomorrow (Tuesday, October 11) and to last until Friday, October 14. We are scheduled to flight back to the U.S. on Saturday, October 15.

We are ready to depart. Keep tuned to follow my first post from Cuba.

 

Aline Fagundes (LL.M. Candidate, ’17)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

 

All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.

Our 2-day delayed flight to Guantanamo Bay’s War Crime Court

A few weeks ago I was confirmed as an NGO Observer to monitor the hearings in the 9/11 case at Guantanamo Bay (click here to see my previous posts). It was finally the day to fly from Indianapolis, where I currently live, to Washington DC, where I would catch a military flight at Andrews Air Force Base to take me to Guantanamo Bay. The flight from Andrews to Guantanamo Bay was scheduled for Saturday, October 8, morning, and I was supposed to be at Andrews at 5:30 am.

I was at Atlanta Airport, half way to DC, when I opened my emails and received this message, sent Friday, October 7, at 4:42 pm:

“There has been a change in the flight schedule and you will all now be flying down on island on Monday at 1000. Unfortunately, the number of passengers for tomorrow’s flight exceeded the number of seats available on the aircraft (primarily due to additional personnel that needed to fly down to assess the infrastructure post-storm).”

I was already on my way, so I had to book two extra nights at the DC hotel, and spend the whole weekend in DC.

On Saturday, October 8, Carol Rosenberg (link), a Miami Herald correspondent and one of the passengers of our original Saturday morning flight – that was taking judges, defense councils, prosecution, interpreters, victims and family members, media and others to Guantanamo – tweeted she had to leave the airplane and was not able to go to Guantanamo Bay that day. Apparently information was circulated that the issue was the overweight of the aircraft and the Pentagon needed to solve it to be able to fly around the Hurricane Mathew.

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Until that moment, it appears that those on this plane thought only the NGO Observers would be left behind in DC for 2 days. As it turns out, media may have been bumped out the plane, but media’s luggage stayed on board. How would that help effectively resolve overweight issues?

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Carol Rosenberg then reported that she noticed the IT support techies were likewise bumped from the flight.

 

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(see more here)

So, I am thinking what kind of additional personnel instead of NGO Observers and media needed to fly down to assess the infrastructure post-storm, if IT techies were not essential.

The transparency we are pursuing seems to be blurred.

 

Aline Fagundes (LL.M. Candidate, ’17)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

 

All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.

The NGO’s Flight to Guantanamo Bay is Postponed for 2 days

“There has been a change in the flight schedule, and you will all now be flying down on island on Monday at 10:00.”

I received this message from the Pentagon when I was at the Atlanta Airport yesterday (Friday), on the way from Indianapolis to Andrews Air Force Base near Washington DC.

I am an observer from Indiana University McKinney School of Law’s Program in International Human Rights Law, confirmed to attend and monitor hearings at Guantanamo Bay from 11 to 14 October, 2016 (please read my previous posts here). The hearings are in the case against Khalid Shaik Mohammad and 4 other defendants who allegedly masterminded the 9/11 attacks on the World Trade Center and the Pentagon.

The flight to Guantanamo was originally scheduled to depart from DC on Saturday, October 8, and I was supposed to be at the Joint Base Andrews Terminal at 5:30 am.

We were informed, “the number of passengers for tomorrow’s flight exceeded the number of seats available on the aircraft (primarily due to additional personnel that needed to fly down to assess the infrastructure post-storm).”

 

My role as NGO Observer in the 9/11 case

I would have to spend 3 nights in DC before flying to Cuba, and the other 11 NGOs and I would miss almost 3 days of observation. This delay undermines part of my job as a monitor, since the whole purpose of this mission in not solely to watch the hearings. For instance, we will be missing a gathering on Sunday we were invited to by one of the defense teams, miss opportunities to meet with other defense counsel and media, miss possibly meeting the prosecution, and miss other valuable interactions. As observers, our responsibilities include to attend, observe, analyze, critique and report on the Military Commissions. The observer’s job begins at the moment of the confirmation to attend the hearings, and includes paying attention to communications with the Pentagon, defense counsel, and other NGOs, and otherwise observing and interacting with other stakeholders.

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Rather than being at Guantanamo and meeting with defense counsels, other NGO’s, media and observing the situation on the ground, I am stuck in a hotel, near Washington DC.

 

I just learned on Twitter that there may have been issues about the media and their equipment on the plane this morning (Saturday). I will monitor and report about it later. See @GitmoWatch, @carolrosenberg and @GitmoObserver.

 

Aline Fagundes (LL.M. Candidate, ’17)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

 

All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.

Observing at Ft. Meade and Hurricane Matthew

My name is Sheila Willard and I am a 2L student at IU McKinney Law.  Born and raised in Texas, I moved to Indiana a year and a half ago with my Hoosier husband to escape the humidity and to start a new life in the Midwest.  My parents hail from Argentina, South America, and I am a first generation American.

I first became acquainted with the Military Commission Observation Project (MCOP) after receiving an email from Professor Edwards soliciting applications from those interested in participating in the observation of 9/11 hearings.  My entire adult life I have been concerned with human rights and, having grown up with the tragedy of 9/11, the email naturally piqued my curiosity.  I submitted my application, and hoped for the opportunity to be involved in an observation.  A few weeks later, I received clearance to observe the hearings at Ft. Meade, Maryland, during the week of October 10, and immediately began planning my trip there.

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Travel from Indianapolis, IN to Ft. Meade, MD with a stop in D.C. on the way.

Due to Hurricane Matthew wreaking havoc in the Caribbean and off the southeast coast of the U.S., the hearings originally scheduled to begin on Monday, October 10, will likely be pushed back a day and begin instead on Tuesday, October 11.  As of this afternoon, there is no update stating otherwise, so I may change my flight to arrive on Monday instead of Sunday, as originally planned.  Regardless, I am happy for the opportunity Professor Edwards has given us and am looking forward to making the trip next week.

Until then, I am preparing by reading the Guantanamo Bay Fair Trial Manual and keeping a watchful eye out for further instructions.  I am excited to make the trip, but am emotionally torn for the thousands of people affected by Hurricane Matthew.  As of this afternoon, the casualties have soared to over 800 people in Haiti, and Florida is next to be hit.  Having lived in Houston through Hurricanes Katrina and Rita, I know from experience how much stress is involved in evacuation and how much heartbreak is felt in the aftermath.  I pray for the people who have lost everything overnight and hope for the strength they will require to rebuild their lives.

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First reports of Hurricane Matthew aftermath on Haiti. USA TODAY, Photo: Dieu Nalio Chery, AP (10/7/16)

 

Sheila Willard, J.D. Candidate 2018

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University Robert H. McKinney School of Law

Preparing to Travel to Guantanamo Bay

 

Since the Pentagon has authorized me to be an MCOP Observer (click here), I have been involved with preparing my travel to Guantanamo Bay. In this case, preparing means concrete steps and psychological preparation.

Hurricane Matthew

To add more emotion to all ongoings, the hurricane Matthew crossed that area. Around 700 people and 65 pets were evacuated from the U.S. Naval Base in Cuba. The hurricane is heading the east coast of the United States, so we are following the weather forecast to see if the flight from Andrews Air Force Base will be able to depart on Saturday to Guantanamo Bay.

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Hurricane Matthew path on Tuesday, October 4, 2016.

 

A lot to do before

While the travel is confirmed, I have to keep working on my project. Besides studying the Manual, many, many forms needed to be filled.

The first set of forms is from the Pentagon. It consists of Ground Rules, Invitational Traveler Worksheet, Release, Indemnification and Hold Harmless Agreement, and ID Card/Base Pass Registration. After we fill this set, it has to be submitted to IU Lawyers, who need to approve it before we send back to the Pentagon. Sure, it all also pass through IU McKinney PIHRL, by the personal and close assistance of Professor George Edwards, who has a large experience in this process and always have a sharp look to avoid any minimal mistakes. There is one form from PIHRL, which is basically an agreement including obligations for each participant. This form serves as a basic but good guidance to MCOP Observers, once we have to share all we see, writing this blog, updating the Manual, posting information and working as the eyes and the ears of the outside world.

The third set of forms comes from the Office of International Affairs Study Abroad of IUPUI, and it is split into two phases. The first step, mostly related to data (passport, address, ID etc.), has around half dozen forms all online, and once it is approved it opens the second online phase with thirteen forms. The purpose of those forms are safety, including travel registration, health insurance, medical information, housing information, emergency contacts, and rules about what you can or cannot do abroad.

 

To be a good observer

But as I mentioned before, the preparation involves study the Manual. I can say it is the most important and helpful thing to do. The Manual helps the Observer to improve its role. A long time ago, I heard from a professor that “if you do not know what you are looking for, when you find it you may not realize.” Well, this is entirely true, and the Manual will not let you miss anything.

manualThe main purpose of the MCOP is to pursue a fair trial. A right to a fair trial has many perspectives, and I would say the most important task is to be able to be aware of the rights of all stakeholders.

The hearing I am about to attend is related to the September 11 Attack on the World Trade Center and the Pentagon. The whole world was shocked after that episode. For sure many people might be thinking of why an NGO is worried in ensuring any rights to someone who committed such a horrible crime? Many reasons. For instance, the NGO Gitmo Observer is not interested solely in the defendant’s rights, but also the rights of the victims and their families, the prosecution, the witnesses, the media, men and women who guard the detainees, and the domestic U.S. and international communities. Also, the rights of the defendants, ultimately, belong to everybody, because everybody can be suited and need to be sure a fair trial will be perceived, especially to be able to prove its innocence, or if not innocent, to be punished proportionally to what have been done.

 

Psychological Preparation

Finally, there is the psychological preparation. My eyes cannot blink. This is a unique opportunity. The biggest challenge is to avoid any bias, preconception, prejudice, prejudgment. I will have to keep my mind open to absorb as much as I can, and then start to settle it to be able to analyze what I saw. Being myself a judge it is unavoidable to compare what I do to what the U.S. Military Commission does, and maybe it can be useful, for me or others.

And this is all about to start. In two days, if the Hurricane Matthew allows me, I will be flying to Washington DC and, then, to Guantanamo Bay.

Next post will be the first in transit or the first after cancellation.

Wish me luck!

 

Aline Fagundes (LL.M. Candidate, ’17)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

 

All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.

From Brazil to Guantanamo Bay, Cuba – Monitoring Military Commissions through the Eyes of a Judge

“Aline, we nominated you for the 9/11 week to travel to Guantanamo Bay to monitor hearings.”

This was the first sentence I had read on the morning of August 25, around 6 am, when, still in bed, I opened my mailbox on my phone. I could barely hold my excitement! The first step was given!

Well, let me start from the beginning…

My name is Aline Fagundes, I was born in Oakland, California, but I was raised in Brazil, where I received my first degree in law in 1993, from the Pontifical Catholic University of Rio Grande do Sul, in Porto Alegre. From 1993 to 2005 I worked as a trial attorney, and on September 23, 2005 I became a judge in the Labor Court.

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In 2015 I applied for IU McKinney Master of Laws Program in Human Rights, certainly one of the best steps of my academic and professional life. Through the program I was introduced to a great variety of opportunities, all of them incredibly well supported by the Law School. For instance, I attended an externship at the Indiana Supreme Court, where I improved in networking, state matters and law, also made friends for life. The most recent activity I engaged is the Military Commission Observation Project (MCOP).

MCOP was established by IU McKinney Program in International Human Rights Law (PIHRL), once it was granted “NGO Observer Status” by The Pentagon’s Guantanamo Bay Convening Authority. Through MCOP, IU McKinney Affiliates can be selected to attend, observe, analyze and critique and report on hearings of the Guantanamo Bay detainees charged with war crimes. IU Affiliates can either travel to Guantanamo to observe in person, or monitor the proceedings from Ft. Meade, Maryland military base via secure video-link.

The selection process includes being nominated by the MCOP Advisory Council and having your name submitted to the Pentagon, who in last instance may grant or not the authorization to be an observer. In my case, I was nominated on August 24, 2016, and on September 9, just two days before the 15th anniversary of the September 11 Attack on the World Trade Center, I received this message from the Pentagon:

“You have been CONFIRMED to observe the 11-14 Oct military commission in-person at Guantanamo Bay, Cuba. We are currently scheduled to depart Andrews Air Force Base at 1000 on Saturday, Oct 8, 2016, and will return on Saturday, Oct 15, 2016, around 1330.”

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Khalid Shaik Mohammed, the lead defendant in the 9/11 case against 5 alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon.

The date was extremely significant. The hearings I am scheduled to attend are in the case against defendant Khalid Shaik Mohammad, and four other alleged masterminds of the September 11 Attack on the World Trade Center and the Pentagon. It has been 15 years since that attack, and the defendants in that case are still in the middle of pre-trial hearings.

Logistics of the mission to Guantanamo Bay

Since I have received that message about the Pentagon accepting me to travel to Guantanamo Bay, I could not stop thinking about Guantanamo Bay all the time. I am expected to travel from Indianapolis to Andrews Air Force Base (where is based Air Force One, the United States Air Force aircraft carrying the President of the United States). At Andrews, I am expected to fly on a military transportation to Cuba, where I would stay in a military tent. Guantanamo Bay is a U.S. Naval Station (in 1903, Cuba signed a treaty that leased Guantanamo Bay to the United States for use as a Naval Station).

I plan to blog step by step my experience on behalf of the Indiana McKinney Military Commission Observation Project. It is part of my responsibility to be the eyes and ears from Guantanamo Bay to the outside world, as most people will never have the opportunity to travel there for these hearings. I hope to help promote transparency, to tell the outside world what I hear, see – what I experience as part of this Guantanamo Bay mission. I recognize that this mission has already begun, with my preparation. I plan to continue to blog before I go, while I am there, and after I return.

The academic meaning is even more exciting. If you search Guantanamo on the web, an enormous number of links will direct you to stories related to torture and human rights violations. Unfortunately, an expressive number of it are true, or were true. The fact that the United States are taking action in order to provide transparency represents a lot, and to be granted the opportunity of working on this goal is a tremendous responsibility. After my journey to Guantanamo Bay, I will have a better idea about how transparent the process really is.

Guantanamo Bay Fair Trial Manual

As part of my mission, I will be contributing to the Guantanamo Bay Fair Trial Manual, that Professor George Edwards is creating with students to help observers / monitors and others interested in the rights of and interests of Guantanamo Bay stakeholders. We are reminded that not only do the defendants have rights, but also other individuals and groups have rights and interests, including the prosecution, victims and their families, witnesses, men and women who guard the detainees, the media, and the domestic U.S. and international communities. I hope to share information about and with the full range of stakeholders.

Through the Manual and the observing / monitoring that I and others do at Guantanamo Bay, we are helping to ensure that “whatever happens in Guantanamo does not stay in Guantanamo”. Information is important, and I will do my best to help ensure that knowledge about Guantanamo Bay is share with others on the outside.

I am proudly part of the Guantanamo Bay Fair Trial Manual project, and proudly part of the Military Commission Observation Project of Indiana University McKinney School of Laws’ Program in International Human Rights Law.

 

Aline Fagundes (LL.M. Candidate, ’17)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

 

All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.

 

Guantanamo Bay Partial Evacuation – Hurricane Matthew 

Here’s a story from Weather Nation TV about Guantanamo Bay being partially evacuated due to Hurricane Matthew:

Guantanamo Bay Evacuated as Matthew Nears