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.

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