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.

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 10^th 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.

Yesterday, 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, 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

At 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

The 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

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.

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.

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.

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.

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

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 Trade 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.”

As 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.

If 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

I was selected to travel to Guantanamo Bay, Cuba to monitor U.S. Military Commission proceedings 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.

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 how 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 8^th of October, but has been rescheduled to Monday the 10^th 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.

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

http://www.weathernationtv.com/news/guantanamo-bay-evacuated-matthew-nears/