Month: January 2018

Returned from 6-13 January 9/11 Hearings

I am a law student at Indiana University and I recently returned from Guantanamo Bay where I monitored pretrial hearings in the case against five alleged 9/11 masterminds. This was my second trip to Guantanamo Bay and I have previously traveled to Ft. Meade, Maryland to view the hearings via closed circuit video stream.

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I stand in front of the North East Gate, the only gate still in use between the U.S. and Cuba.

Detainees’ Right to Attend Hearings

The first day of pretrial hearings began on Monday 8 January 2018, all five detainees entered the courtroom as is required on the first day of hearings at the beginning of any hearing week. After an initial appearance on the first day of hearings detainees may voluntarily waive their right to be present at hearings for the remainder of that hearing week, without the need to be present in the courtroom. Two of the detainees wore camouflage clothing to court as they are entitled under Article 27 of the Third Geneva Convention.

Body Search and Defense Counsel Bag Search

The first two issues in court arose from events that occurred the same morning. The detainees were searched that morning, as is always the case before hearings, but this was the first time that the search involved patting of the inner leg, thigh, and possibly groin. Some detainees would later claim that they would not attend court on subsequent hearing days due to their unwillingness to submit to this procedure. A second issue of the morning was that defense teams’ bags were searched upon entering the courtroom, although not all defense teams abided. This was the first time that guards had asked to look through the defense counsel’s bags, some of which contained legal material. Specifically, defense counselor Nevin refused the search and returned to his vehicle where he left his legal materials. He entered the courtroom with just a single legal pad and argued that such a search violated attorney client privilege. He was eventually allowed to enter the courtroom without his bag being searched.

Laptop Issue

Late last year the guard force at Joint Task Force Guantanamo, where the detainees are housed, found that Khalid Sheikh Mohammed possessed a prayer schedule with instructions concerning modifying the laptops provided to the detainees by the U.S. government. The prayer schedule was marked with Ali Abdul Aziz Ali’s document identification number and it is unclear how it was transferred to Mohammed. Similar instructions were found in Walid Muhammad Salih Mubarek Bin ‘Attash’s cell. The prosecution claims that the instructions showed significant technical knowledge and they are suspected to have originated from Ali, who was at one time a certified Microsoft engineer. For this reason, the prosecution motioned for a forensic search of the laptops. We heard a lot of argument concerning bios, encryption, software, and internet access. The prosecution claimed that providing the detainees with laptops is an inherent threat to national security, while the defense rejected this claim and asked that the laptops be returned. Judge Pohl did not rule on the issue but did ponder a compromise where a forensic search might be completed and the laptops potentially be returned to the detainees.

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Roadside view of Camp X-Ray.

Mr. al Hawsawi was not implicated in the contraband laptop instruction issue but his laptop was seized, and Ramzi Bin al Shibh was in a unique position because he was the only detainee to have a 2016 laptop, while the other four had 2008 models. Nevertheless, all laptops were confiscated. The instructions also allegedly specify which detainees were privy to the information, with al Hawsawi and al Shibh being kept out of the loop so to speak. Still the government argued that the mere knowledge of how to modify the laptops would make it too dangerous for them to be returned. When pressed on the nature of the risk prosecution said it was impossible to determine without a forensic search, a notion that the defense argued against.

Jurisdiction Issue

We also heard about a defense motion to dismiss the case for lack of jurisdiction. This motion is based on the disputed premise that the U.S. was not at war with al Qaeda at the time the alleged crimes were committed, and so the Military Commission lacks jurisdiction over the case. The defense cited a lack of hostilities as evidence that the U.S. was not at war when the alleged crimes occurred. To counter this argument, the prosecution argued that the U.S. was at war and gave explanations for lack of hostilities. Specifically claiming that there was a lack of actionable intelligence and that the potential for collateral damage was too high. They also cited problems with arming Predator drones with missiles as an issue preventing conflict.

Threatened Prosecution of Defense

Another issue came to the surface late in the week due to the fact that the prosecution sent a letter to defense teams and indicated that they might be prosecuted under the Identity Protection Act for attempting to interview current and former CIA employees and contractors. Specifically, the letter laid out a process by which defense’s desired witnesses would be contacted, which would involve a CIA employee and FBI special agent visiting desired witnesses and informing them of their absolute right not to testify. The defense opposed this approach and claimed that they were being prevented from doing effective discovery, an element essential to due process. This issue is compounded by the fact that the prosecution refuses to provide a timeline showing where the detainees were, what was done to them, and who was there to witness it during their time in CIA custody. The government cited national security as the reason for withholding this information. Judge Pohl seemed to think that if the government would be forthcoming with a timeline and other desired information, then this might alleviate some discovery issues. No such compromise appears to be viable option, at least as far as the government is concerned.

The Issue Not Argued

There has been mounting pressure for Judge Pohl to set a target date to begin the trial. He appears unwilling to hear argument on this topic, and probably with good reason. One concern is that if he does set a trial date that delays and pretrial hearings might cause the date to be pushed back. After all, it was once said in court that the trial could begin as early as December of 2013. General Baker expressed uncertainty with regard to trial date and stated that the issues from the week made him feel like a trial was further away than ever. He cited a lack of cooperation, between defense teams and the prosecution, on the discovery process as justification for this position. Although we thought we might hear some argument on this issue, Judge Pohl did not allow this, apparently fearing that such argument would be premature.

Exploring the Bay

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A Cuban observer monitoring the North East Gate watches us through binoculars.

On Tuesday the court convened for a classified 502 hearing, which gave us an opportunity to explore the bay since we did not have the required clearance to attend. We rented a boat and journeyed out to Hospital Cay, an island in the Bay once used to quarantine those with Yellow Fever and Influenza. After visiting the island, we stopped for a short swim. The boat driver also took us to the north end of U.S. controlled Guantanamo Bay where we could see the water bridge that separates the Naval Station and Cuba, from a distance.

That afternoon we headed over to Marine Hill and departed on a tour of the North East Gate, which is the only gate still in use between the U.S. and Cuba. This afforded us the opportunity to take pictures and hear the history of Guantanamo Bay from the time Christopher Columbus landed there through present day.

We returned to court on Wednesday morning which is when the court took up three main aforementioned issues spanning the remainder of the week. Those issues were: the seizure of detainees’ laptops, a jurisdictional issue turning on when the conflict began between the U.S. and al Qaeda, and threatened prosecution should the defense teams attempt to contact any current or former CIA employee or contractor.

Ben Hicks

3rd Year Student

Indiana University McKinney School of Law

Heading to Guantanamo Bay Today

I’m at Andrews Air Force Base waiting for a plane to take me to Guantanamo Bay, Cuba, to monitor hearings in the US Military case against Mr. al Nashiri, who allegedly masterminded the bombing of the 2000 USS Cole off the coast of Yemen. That bombing killed 17 US sailors and wounded many more.

The hearings this week are scheduled to focus on many issues, including the status of lawyers who were detailed to represent Mr. al Nashiri, who were ordered to appear at the hearings, but who do not appear to be here at Andrews for the flight. Our flight will carry many dozens of others related to the case, including the prosecutors, the judge and his staff, media, court reporters, interpreters and translators, security personnel, and guides and escorts.

I will plan to report back in from Cuba.

George Edwards

Director (Founding), Military Commission Observation Project

Indiana University McKinney School of Law

Heading back to Guantanamo Bay, Cuba for Hearings in the Case of the Alleged 9/11 Masterminds

I was recently selected to travel to Guantanamo Bay, Cuba on my second mission to monitor the U.S. Military Commission hearings at the remote U.S. Naval Station.

I am representing the Military Commission Observation Project, which is part of the Program in International Human Rights Law at Indiana University McKinney School of Law, where I am a 3rd year student.

Once again, my remit is to attend, observe and be observed, analyze, critique and report on hearings against 5 men who are alleged to have plotted the 9/11 attacks on the World Trade Center and the Pentagon.

Preparation for My Mission

I traveled to Guantanamo Bay once before to monitor hearings. I also traveled to Ft. Meade, Maryland, where a different set of Guantanamo hearings were broadcast live from the Guantanamo courtroom via CCTV to a secure room at the Maryland army base. My past trips have helped shape my preparation for this trip.

I found court papers in this case on the Military Commission website – www.mc.mil. The filings are not complete, or at least I do not have access to all of the filings since some of the filings are behind a security shield and will not be posted on that website until about two weeks, enough time for the documents to undergo a security review. I can see the names of some of the unavailable documents, and that gives me an idea of what substantive motions to expect.

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A central and important question in December seemed to be; what constitutes “Part of Al Qaeda”? Throughout unofficial and unauthenticated transcripts on the mc.mil website this issue is discussed during the December hearings and an FBI agent and behavioral analyst’s testimony is available in a second transcript. The second transcript includes testimony about 2007 interrogation of Mr. al Hawsawi as well as a variety FBI activity throughout the world.

Another important issue that was litigated in December is “when did the armed conflict with al Qaeda begin”, since if there was no armed conflict at the time the alleged crimes were committee, they cannot be tried at Guantanamo, since the military commissions only try war crimes and you have to have an armed conflict in order to have a war crime.

Staying up-to-date

It can be difficult to stay up-to-date on the hearings due to the limited access to court documents and the fact that hearings can only be viewed from specific secured locations, such as Ft. Meade. A good way to stay up-to-date on the proceedings is read the websites of journalists who cover Guantanamo, and websites of non-governmental organizations (NGOs) that focus on Guantanamo. Another way to stay up-to-date is to speak with previous observers who have traveled to monitor the hearings. This can help provide a context to understand some issues that might otherwise not be clear because they continue from previous hearing dates.

Of course, it is also very helpful to review materials prepared by the Indiana McKinney School of Law’s Military Commission Observation Project, also known as Gitmo Observer – http://www.GitmoObserver.com. We have the Guantanamo Bay Fair Trial Manual, and the Know Before You Go to Guantanamo Bay.

My travel.

I was originally scheduled to be in Guantanamo Bay for a week, however the Pentagon stated that they needed to consolidate NGO flights during the month of January, and they asked observers to extend our stay a few extra few days. This means that we will be in Cuba for eleven days, instead of 7. The Pentagon informed us of this schedule change only a few days before our scheduled departure, and it has prevented a few NGO observers from attending the hearings.

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Courtroom Time

During my last mission to Guantanamo Bay Judge Pohl granted a motion to continue the hearings, and we had far less time in court than would have otherwise been the case. I hope that during this trip we are able to proceed with full hearings, as that will permit me to report on substantive court proceedings.

Because of the motion to continue the hearings during my last trip I had the opportunity to see parts of Guantanamo Bay Naval Station and Joint Task Force Guantanamo that I might not have otherwise had time to see. I was fortunate enough to see the Northeast Gate and also ride back to see some of the detention facilities of Joint Task Force Guantanamo, and eat lunch at the seaside galley restaurant with other observers and chat with defense teams.

Ben Hicks

3rd Year Student

Indiana University McKinney School of Law