Month: November 2018

Indiana and Chulalongkorn Law Students Work on Cybercrime Extradition Case Involving Russia, Thailand, and the United States

Introduction

Mr. Dmitry Ukrainskiy, a Russian citizen, whom the U.S. seeks to extradite to New York to face charges of bank fraud, wire fraud, and money laundering. The Russian Federation also wants to extradite Mr. Ukrainskiy, to Moscow

The U.S. charged Mr. Dmitry Ukrainskiy, a Russian citizen, with cybercrimes related to malware – malicious computer software breaches of US computer systems — and seeks to extradite him from the Kingdom of Thailand to face charges in New York. The Russian Federation seeks to extradite Mr. Ukrainskiy on fraud charges, unrelated to the U.S. charges.

The Bangkok Criminal Court granted the Russian request to extradite, to which Mr. Ukrainskiy consented. Mr. Ukrainskiy did not consent to the U.S. extradition request, and the Thai court scheduled a hearing on the U.S. extradition request for 12 November 2018.  If the court grants the U.S. request, then the court will have granted two competing extradition request – to Russia and to the U.S.  Since it would be physically impossible to extradite Mr. Ukrainskiy to two countries, a subsequent decision would need to be made on whether  Mr. Ukrainskiy would be sent to Russia or to the U.S.

U.S. and Thai law students have been conducting legal research for Mr. Ukrainskiy’s case.


Law students in Professor Edwards International Criminal Law class at Indiana McKinney brief Mr. Nathan Feeney, of the Thai Law Firm, on points of extradition law.

The U.S. students, from Indiana University McKinney School of Law, are enrolled in the autumn 2018 International Criminal Law course of Professor George E. Edwards. He is also a Visiting Fellow at Bangkok’s Chulalongkorn University Faculty of Law, with student research assistant participation from that school. Professor Edwards and the students are working with the Thai law firm, named Thailand Bail, owned by Mr. Nathan Feeney and others, that represents Mr. Ukrainskiy.

This case tests the extent to which the U.S. can try foreigners for alleged conduct occurring outside the U.S., but with effects inside the U.S., and also tests questions concerning the role of politics in extradition requests and the grant of competing extradition requests.

Research Assistant Khun Praewa Kasemsamran (แพรวา เกษมสำราญ) – Chulalongkorn University Faculty of Law Student (right); Khun Nathan Feeney (owner, Thai Bail Law Firm representing Mr. Ukrainskiy) (center); Professor George E. Edwards (Professor of Law, Indiana University McKinney School of Law; Visiting Fellow, Chulalongkorn University Faculty of Law) (left) at the Bangkok Courthouse

Russia has challenged the U.S. extraterritorial application of U.S. law as applied to non-citizens generally, but as applied to Russians specifically.

The U.S. has recently sought to extradite Russians from Hungary, Maldives, Spain, Liberia, Czech Republic, Thailand (many), and other countries. Russia has sought to extradite their own nationals in some of these cases, with these countries having to decide whether to send the person to the U.S. or home to Russia. Most of the countries sided with the U.S., but, not all (for example, Hungary sided with sending the person to Russia).

Other U.S. cases involving Russian defendants include cases brought by U.S. Special Counsel Robert Mueller.

The U.S. Request to Extradite

Federal prosecutors in Brooklyn, New York, alleged that Mr. Ukrainskiy and others used malicious software (malware) to breach U.S. computer systems and access U.S. financial institutions’ passwords and usernames, and unlawfully transfer funds from victims’ U.S. bank accounts to other countries, including Thailand.

Pursuant to an extradition treaty between the U.S. and Thailand, the U.S. requested that Thailand extradite Mr. Ukrainskiy to the U.S. to stand trial for wire fraud, bank fraud and money laundering. The alleged behavior occurred from 2014 to 2016, and U.S. victims allegedly lost over $1 million (U.S.). The U.S. indicted Mr. Ukrainskiy, and issued their extradition request. Mr. Ukrainsky faces decades in a U.S. prison if sent to New York and convicted.

The Bangkok Criminal Court scheduled a hearing for 12 November 2018 on the question of whether to grant the U.S. extradition request.

Research Assistant Khun Praewa Kasemsamran (แพรวา เกษมสำราญ) – Chulalongkorn University Faculty of Law Student & Professor George E. Edwards (Professor of Law, Indiana University McKinney School of Law; Visiting Fellow, Chulalongkorn University Faculty of Law)

Russian Request to Extradite

Within weeks after the U.S. requested Mr. Ukrainskiy’s extradition, the Russian government requested that Mr. Ukrainskiy be extradited to Russia to face fraud charges rooted in alleged behavior occurring some years ago.

Russia has no extradition treaty with Thailand. However, no rules of international law, Thai law, or Russian law prohibit extradition in the absence of a treaty. For extradition to Russia to occur, Russia and Thailand would only need to agree, reflecting the sovereign power of states to enter into ad hoc agreements.

Months ago, the Thai court granted Russia’s request to extradite Ukrainskiy to Russia, and Mr. Ukrainskiy did not object to being sent to Russia. Extradition to Russia was put on hold until the Thai court decides whether to grant the U.S. extradition request.

Competing Extradition Requests

If Thailand grants the U.S. extradition request, Thailand will be faced with two approved competing extradition requests – one from the U.S. and one from Russia. It appears as though the courts of Thailand have never before been faced with the question of competing extradition requests – where two countries are competing over the extradition of a defendant.

It is physically impossible for Thailand to extradite Mr. Ukrainskiy to two different countries, and he would likely be sent to either the U.S. or Russia, as no other country has requested his, and he has not requested to be sent to another country (and has requested to be sent home to Russia).

The U.S. / Thailand extradition Treaty and the Thai Extradition Act both address criteria that Thailand might consider when choosing between the two possible extradition recipient countries.

These criteria include that the sending country (Thailand), when deciding between two competing requests, may consider: (a) Mr. Ukrainskiy’s nationality; (b) which extradition request for him was received first; (c) where his alleged crime(s) occurred; (d) the severity of the crimes in the two countries seeking extradition; (e) and other factors.

Neither U.S., Thai, nor international law defines the specific criteria, nor illuminates the criteria’s scope. Nevertheless, the criteria should be used to ascertain where Mr. Ukrainsky should be sent, as follows:

(a) Nationality. Mr. Ukrainskiy is Russian, so that operates in favor of Russia’s request.

(b) Which request was first. The U.S. requested extradition before Russia requested extradition, which operates in favor of the U.S. request.

(c) Where the crimes occurred. Per the Russian request, criminal behavior occurred in Russia – fraud. Per the U.S. request, the U.S. would likely argue that the criminal behavior occurred in the U.S., as that is where the malware was sent, where the victims were, and where some of the banks from which funds were transferred were. The defense would likely argue that it is debatable where the crimes occurred (if any crimes occurred at all). Mr. Ukrainskiy did not enter the U.S. during the period of time that the alleged fraudulent behavior occurred, and for the sake of argument, presume that he never in his life entered the U.S., for any purpose. Did his alleged U.S.-charged crimes (bank fraud, wire fraud, money laundering) occur in the country from which the malware was dispatched (perhaps Thailand or some other country), the U.S. where the malware was alleged to have infected U.S. computers, the U.S. where the banks were that held the funds that were allegedly stolen, the United Arab Emirates where funds were allegedly transferred, Thailand where transferred funds were allegedly withdrawn from ATM machines, or other countries?

(d) Relative severity of the crimes. Thailand is directed to consider whether the U.S. or Russian crimes are more severe than the other. But, the extradition agreement does not inform whether the person should be sent to the country with the more severe crimes or punishments, or sent to the country with the less severe crimes or punishments.

Also, there is no clear guidance as to how to weigh the criteria.

For example, in this case Mr. Ukrainskiy’s Russian nationality would likely be considered a point in favor of extradition to Russia, whereas the U.S. requesting extradition before Russia requested extradition would be a point in favor of extradition to the U.S.

But are the nationality and order of request criteria to be given equal weight in the decision making, or should one factor be given more weight than the other? Is one point for nationality equal to one point for being the first extradition request?

Hakeem Al Araibi of Bahrain arrives at he Bangkok Criminal Court, the same building court where Mr. Ukrainskiy’s extradition case is being heard. Bahrain sought to extradite Mr. al Araibi from Thailand to Bahrain.

Double Jeopardy Issue

The Thai / U.S. extradition treaty and the Thai Extradition Act prohibit extradition if it would result in double jeopardy – or ne bis in idem – a principle of law in which a person shall not be twice exposed to jeopardy under criminal law for the same “offense” or for the same “conduct”. Thus, once a defendant has been “in jeopardy” in a criminal case – with either a conviction or acquittal or another outcome – he cannot be prosecuted again.

Double jeopardy is relevant in Mr. Ukrainskiy’s case because he was charged with and convicted in a Thai court for money laundering, involving facts that overlap with facts associated with the charges for which the U.S. is seeking extradition. Should the Thai court, when considering double jeopardy, look only to the name of the crime in its determination? Must the U.S. money laundering charges fail under double jeopardy because Mr. Ukrainsky was convicted of money laundering in Thailand – as the crimes in Thailand and the U.S. have the same name – “money laundering”? Or, should the Thai court not focus on the name of the crime in both countries, but focus on what facts underly the charges in the two jurisdictions? Are the facts underlying the Thai charges identical to or different from the facts underlying the U.S. charges? If the money laundering claim in the U.S. is excluded from consideration, can extradition occur on the other two charges – bank fraud and wire fraud?

The Political Question Doctrine & Whether Mr. Ukrainskiy get a fair trial in the U.S.?

The Thai / U.S. extradition treaty bans extradition when the crime charged is political in nature (e.g., treason, defamation of the government) or when the crime is charged for political purposes. In this case, there is no allegation that the crimes charged – bank fraud, wire fraud, money laundering – are political offenses. However, Mr. Ukrainsky would argue that he was prosecuted for political purposes, for example, so that the U.S. might extract information from him related to his service as a prosecutor during Soviet days.

Furthermore, Mr. Ukrainskiy argues that it is impossible for him to receive a fair trial in the U.S. today since he is a Russian charged with cybercrimes, given negativity associated with a dozen Russians who allegedly hacked into the Democratic National Committee’s website in 2016 during the Presidential Elections, charges of collusion with Russia during the 2016 Presidential campaign, the number of high-profile Russians extradited to the U.S. or sought to be extradited to the U.S. for cybercrimes, and the number of Russians indicted through the Special Counsel Robert Mueller investigation. Mr. Ukrainskiy e would argue that U.S. jury might be biased against him, as a Russian facing computer charges, particularly of the magnitude charged.

The 12 November Extradition Hearing in Bangkok

A hearing in the Bangkok Criminal Court was scheduled for 1:30 p.m., Monday, 12 November 2018, at which a panel of 4 judges was to hear arguments as to whether the U.S. extradition request should be granted.

By 1:15 p.m., major stakeholders in the case were in the spartan, 8th floor courtroom, including representatives from the U.S. Embassy (Department of Justice Attaché) and the Russian Embassy (Consul General), apparent representation from the Thai Ministry of Foreign Affairs, the Thai criminal prosecution, Mr. Ukrainskiy’s legal defense team, Russian media,  a friend of Mr. Ukrainskiy, representation from the Indiana University McKinney School of Law and Chulalongkorn Law Faculty, and observers.

Mr. Ukrainskiy was brought into the courtroom, in prison garb and ankle shackles, wearing a light blue surgical face mask.

By 1:30, the panel of two male and two female judges solemnly entered. After dealing with short matters  on other cases, the chief judge called Mr. Ukrainskiy’s case.

The chief judge announced that the Russian / Thai interpreter had phoned saying she was ill and would not be in court. Apparently only one certified Russian / Thai court reporter exists in Thailand, and when she is out, no certified Russian / Thai interpretation can occur. She was expected back in about 2 weeks.

At the hearing, Mr. Ukrainskiy, as the hearing’s key witness, would have testified as to why he should not be extradited to the U.S.

Part of his testimony would have focused on his background as an army prosecutor and as a special forces member (purportedly a member of the Russian equivalent to U.S. Special Forces / Navy Seals) (and, as noted below, such testimony would be presented at the resumed hearing, 17 December 2018).

No interpreter? What next?

After the interpreter’s absence was made known, the two clear options were: (a) for the hearing to go forward without the Russian / Thai interpreter; or (b) for the hearing to be postponed.

In theory, the hearing could have proceeded despite the Russian / Thai interpreter’s absence. Interpretation could have been Thai / English, as Mr. Ukrainskiy, who is a native Russian speaker, speaks English. A Thai / English unofficial interpreter was present and could have interpreted.

However, it is believed that Mr. Ukrainskiy’s legal team rejected going forward without a Russian / Thai interpreter since Mr. Ukrainskiy himself was scheduled to testify, and his testimony would have involved technical and legal military terms, which might have been lost with Thai / English interpretation. Mr. Ukrainskiy has the right under Thai Law to an interpreter of his own language, and it was decided that he would avail himself of such.

Postponement

The court decided to postpone the hearing until 17 December 2018, 1:00 p.m., in the same courtroom. This would be Mr. Ukrainskiy’s opportunity to testify on issues he wishes the court to consider when the court is cdeciding whether to grant the U.S. request to extradite. Since the Russian extradition request has already been granted, if the U.S. request is granted Mr. Ukrainskiy and his legal team will likely be back in court, arguing the merits of U.S. versus Russia as the proper place to be extradited. For the November 2018 hearing, postponed to 17 December 2018, the issue is solely whether the U.S. extradition request is granted. Again, the competing request arguments will be the focus only if the court grants the U.S. extradition request.

http://www.GitmoObserver.com is the website of the U.S. Military Commission Monitoring Project of the Program in International Human Rights Law of Indiana University McKinney School of Law.

9/11 Hearings at Guantanamo

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The Convening Authority’s Administration Building at Guantanamo.  Photo from the Defense Systems Journal.

As I learned during my first visit to Guantanamo as an NGO representative of Indiana University School of Law’s observer program in January, the fact that there are hearings scheduled at the war court complex is no guarantee that they will go forward.  At that time, hearings were cancelled and shortened due to concerns for the health of alleged al-Qaeda commander Abd al Iraqi/Nashwan al Tamir, who has now undergone five back surgeries in the past nine months.  As we prepared to observe this week’s hearings against five alleged September 11 conspirators, we learned that there were again issues that threatened to derail the hearings scheduled through the week.

Mold issues at the war court

When the defense team for alleged 9/11 conspirator Walid bin Attash arrived at their offices in a prefabricated trailer-style building Saturday, they found it, their files, and their court clothes caked in mold.  The legal teams’ trailers are a part of the “Expeditionary Legal Complex,” which, along with the “Camp Justice” tent city housing visiting NGOs and journalists, all atop an obsolete airfield.  The hearings were again in question, until Sunday night, when we learned that they would indeed go ahead at 9 a.m. after an 8 a.m. conference between Judge Parella and the parties’ lawyers.

The first hour of the day was spent in discussion of the mold problems, and the delays to planned preparation they caused the defense teams.  According to Bin Attash’s defense lawyer, William Montross, two members of the defense team had gone to the ER for “breathing difficulties” and a third’s arms were “all red” as a result of the exposure to the mold.  His own suits were ruined, and he wore instead green chinos, a gray collared shirt, and a “Harry Potter” tie.  Confidential documents had to be left behind rather than risking contaminating other areas.

Proposed alternate office contained a decaying rat and rat feces and nests.  The other teams, who’s offices share a common ventilation system, were also affected.  Montross argued that the hearings should be delayed to permit more preparation time to make up for time lost dealing with the mold, re-printing documents, and finding an alternate workspace.  Judge Parella rescheduled oral argument on a bin Attash motion until later in the week, and otherwise decided that hearings would proceed as scheduled.

The gallery

I and observers representing eight other non-governmental organizations (NGOs) and our Guantanamo escort entered the court complex through a security tent and a walkway lined with chain-link fencing covered with black cloth sniper-netting and lined with razor-wire.  There was additional security at the entrance to Courtroom II itself, and we then received our seat assignments in the gallery.  The nine of us sat in the third and last of four rows on the left side of the gallery, and several journalists sat in the first row.  Several uniformed servicemen sat to our left, as did a paralegal and one of the legal teams’ victim family member liaisons.

Eight victim’s family members (VFMs) entered the gallery last, sitting in three rows on the right side of the gallery, separated from us by a blue curtain.  Before the hearings started, VFMs were escorted individually to the left side of the gallery to get a better view of the defendants.  While most of the NGOs are lawyers or law students representing law schools and other legal organizations, one of our group represents September 11th Families for Peaceful Tomorrows, and herself lost her sister in the South Tower of the World Trade Center on that fateful day.

The gallery we were seated in has five large windows looking into the courtroom, each with a television monitor at the top.  The monitors display the person speaking, whether the judge, defense or government counsel, and they and the audio work on a 40 second delay.  We were informed that if classified information is mentioned, a police-type light to the left of the judge would turn on, the monitors and audio would stop, and white noise would begin.  This has not occurred while I’ve been at the court.  Cameras in each corner of the gallery kept watch upon observers, who were warned that decorum would be maintained as if we were seated in the courtroom.  The proceedings were also broadcast by closed circuit television to sites at Fort Meade, Maryland and Fort Devens, Massachusetts.

NGO tent

Me in front of the tent housing three other NGO observers and I this week

The Courtroom

Inside the courtroom are six tables for each the defense and prosecution teams of up to six defendants.  A chair on the left side of each defense table is equipped with “shackle points” – a chain about a foot long secured to the floor to which Defendants may be shackled.  These shackle points have not been used in some time. The five defendants were escorted in by guards of the Joint Task Force – Guantanamo Bay (JTF-GTMO).  Twelve to fourteen guards rotated in and out of the courtroom and along the left wall periodically throughout the hearings.

The defense side of the court was full.  Four of the defense teams, both military and civilian lawyers, are seated to the right of their clients.  Walid bin Attash has declared that he no longer wants his counsel to represent him, so they sit at the sixth table.  Most of the female defense lawyers, in consideration of their client’s cultural sensitivity, wear traditional Muslim abayas covering their heads.  Six three shelf carts full of documents binders are arrayed around and behind defense tables. Government trial counsel sit to the right of the aisle, and are either military, Department of Defense, or Department of Justice lawyers.

Defense motions to compel additional evidence – business records correspondence

Much of the day was taken in arguments over defense motions to compel the government to produce additional evidence about CIA torture and its rendition, detention, and interrogation program.  The first of these was Mustafa al Hawsawi’s motion to compel the government to produce records regarding communications the FBI had with, and records it obtained from, third parties during its investigation of the case.

Al Hawsawi lawyer, Marine Corps Lieutenant Colonel Sean Gleason, explained that during the testimony of FBI Special Agent Abagail Perkins last year, it was revealed to the defense for the first time that the banking and financial records’ declarations the prosecution had offered in its case against al Hawsawi were not collected by the FBI themselves, but were provided by foreign government intermediaries, sometimes years after the records themselves were collected.  Therefore, the defense needs notes, letters, or e-mails containing requests or responses between the FBI and foreign governments in order to properly evaluate the foundation for the records.  Lawyers for Walid bin Attash and Ammar al Baluchi joined in the motion, noting that the financial records were the government’s most important evidence regarding their client’s alleged support for the 9/11 hijackers.

Defense motions to compel accurate information regarding CIA black sites

Lawyers for Ammar al-Baluchi then argued two motions to compel the government to produce additional information about CIA torture, mainly conducted at “black sites” at locations around the world.  Following his arrest in April 2003, al Baluchi was kept in CIA custody at undisclosed locations prior to his September 6, 2006 transfer to prison at Guantanamo.  During al-Baluchi’s secret detention, he was tortured by the CIA using what have become known as “enhanced interrogation techniques.”

Al-Baluchi’s civilian lawyer, Alka Pradhan, made the argument that the index that the government had provided regarding the CIA’s rendition, detention and interrogation program (“RDI”) was full of errors, gave only code names instead of actual locations, and failed to identify individuals that were present during his interrogations and torture.  Other defendants joined in the motion, and Walid bin Attash’s lawyer deferred argument until Friday’s closed session.  The government argued that Judge Pohl had ruled the index they had provided was sufficient, and that witness identification was unnecessary.

Defense motions to compel information about torture and interrogations

Al-Baluchi’s learned counsel, James Connell, argued related motions that the government produce information for non-CIA requests for black site interrogations, documents regarding interrogation personnel, and a report regarding the CIA’s sleep deprivation policy.  Death penalty defendants are entitled to counsel experienced in capital cases.  Connell argued that it appeared that the FBI had fed questions to CIA interrogators, and that the court should therefore compel the government to provide information regarding FBI investigations in Iraq, Afghanistan, and Guantanamo.

The defense is also requesting profiles of individuals who worked at black sites and had direct and substantial contact with the defendants.  Government lawyer Jeff Groharing argued that Judge Pohl had approved its index as satisfying the requirement for a synopsis of individuals with substantial contact with the defendants, and that the government was continuing to supplement its responses to the defendants’ requests.

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Ammar al Baluchi was tortured at CIA black sites for 3 1/2 years prior to his transfer to Guantanamo

Court was adjourned for the day at 3:30 to permit defense teams at least some additional time to prepare for Tuesday’s testimony of William Castle.  Castle was the acting general counsel at the Department of Defense in February, when Defense Secretary James Mattis fired the Military Commissions Convening Authority Harvey Rishikof and its legal adviser Gary Brown.

Paul Logan

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

Program in International Human Rights Law

Indiana University McKinney School of Law

14 November 2018

 

 

 

 

Return to Guantanamo Bay to Observe 9/11 Hearings

I was approved and have traveled to the U.S. Naval Station at Guantanamo Bay, Cuba for U.S. Military Commission hearings against five alleged September 11 conspirators.

My mission

I graduated with a J.D. from Indiana University McKinney School of Law in 1994, and am an employment lawyer in Indianapolis. When I was in law school, there were few international law opportunities for students.

Several years after I graduated, the school founded its Program in International Human Rights Law (PIHRL), which for over 20 years has offered students and graduates many international opportunities. One of its projects is the Military Commission Observation Project (MCOP), which sends faculty, staff, students, graduates to Guantanamo, after the program received  special status from the Pentagon.  I am thankful and excited about this opportunity!

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My invitation to travel to Guantanamo and invaluable resources from the observer project

My mission through the IU McKinney project is to attend, observe, be observed, analyze, critique, and report on the hearings against the 5 alleged 9/11 co-conspirators.

The Defendants

Khalid Shaik Mohammad is the lead defendant, and is accused of masterminding the 9/11 attack on the World Trade Center and Pentagon, and overseeing the operation and training of the hijackers in Afghanistan and Pakistan.  Walid bin Attash allegedly ran an Al-Qaeda training camp in Afghanistan where two of the 19 September 11 hijackers were trained.  Ramzi bin al Shibah allegedly helped the German cell of hijackers find flight schools and enter the United States, and helped finance the plot.  Ammar al Baluchi, Khalid Shaik Mohammad’s nephew, allegedly sent money to the hijackers for expenses and flight training, and helped some of them travel to the U.S.  Mustafa al Hawsawi allegedly also helped facilitate fund transfers. All  9/11 defendants were arrested in the early 2000s, were held in CIA blacksites, and transferred to Guantanamo in 2006.

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Khalid Shaik Mohammad (“KSM”)

My previous Guantanamo trip.

This is my second trip to “Gitmo” (the nickname for the naval station).  In January 2018, I attended hearings in the case of alleged al -Qaeda commander Abd al Iraqi/Nashwan al Tamir.  Al Iraqi / al Tamir has had five back surgeries in the past nine months, and that contributed to his having only two half-day hearings days the week I was here.  Incidentally, hearings in Al-Iraqi’s case were again cut short this last week when he suffered spasms in the Courtroom and was rushed to a medical facility.

Last week, the sole high security courtroom at Guantanamo was double-booked, with hearings scheduled concurrently for the 9/11 defendants and for al Iraqi/al Tamir. Only one set of hearings can be held here at a time. Last week, the military judge in the 9/11 case, Marine Col. Keith A. Parella, held closed hearings in the Washington D.C. area, the first time a Guantanamo military commission criminal hearing in a death penalty case has been held in the continental U.S.  Parella has presided since August 27 and replaced Army Col. James Pohl, who had presided continuously since 2011.

Preparing for My Trip to Guantanamo.

On Saturday, 10 November 2018, I traveled on a military flight from Andrews Air Force Base in Washington, D.C. to Guantanamo Bay.  Motion hearings in the 9/11 case are scheduled to take place all week.  There will be eight other representatives of non-governmental organizations (NGOs) observing the hearings with me.

My preparation for the mission to Guantanamo has included reviewing several publications of the Program in International Human Rights Law. These include the Guantanamo Bay Fair Trial Manual: Excerpts, which has introduced me to the relevant international and U.S. law.  I believe this publication will be very helpful as I seek to analyze, critique and report on my Guantanamo experiences.

The IU McKinney program also provided me with Know Before You Go To Guantanamo Bay: A Guide of Human Rights NGOs & Others Going to Gitmo To Attend U.S. Military Commission.  This has also been very helpful.

One of the NGO representatives, from the National Institute for Military Justice, provided the other NGOs documents relevant to the issues that are expected to be addressed.  These are about 50 pleadings in the case, and a docket showing 17 motions which the court needs to address.  More recent filings remain confidential, an issue which Al-Baluchi’s team hopes will also be addressed.  This will certainly make for a full and interesting week.

We attended a barbeque hosted by al Baluchi’s defense team on Saturday night. The al Baluchi team sent a summary of five main issues that they expected would be addressed, and confirmed that Judge Parella intended to address those issues in a conference held earlier on Saturday.

The first is issue political influence with the military justice process, including the coordinated firing of senior military commission officials and the current CIA Director’s comments regarding the guilt of the accused.

The other issues are: defense access to additional information about CIA torture, defense access to other evidence, conditions of confinement issues, and the transparency of the military commissions.  In January, our group of NGOs attended a similar barbecue hosted by Al-Iraqi’s defense team later in the week.  Our meeting with al Baluchi’s defense teams this early in the week has helped us all understand the issues that will be addressed this week much better.

I plan to draft more blog posts as the week progresses.

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Other NGOs and I relaxing before the start of a busy week

Paul Logan

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

Program in International Human Rights Law

Indiana University McKinney School of Law

My Nomination to Observe War Court Proceedings at Ft. Meade, Maryland in the case against Hadi al-Iraqi/Nashwan al Tamir

Hearings in a Guantanamo Bay, Cuba U.S. military commission war crimes case are scheduled for 5 to 9 November 2018. I was nominated to travel to Ft. Meade, Maryland, where the hearings will be broadcast live via CCTV, direct from the Guantanamo courtroom, in a criminal case against an alleged high level member of al Qaeda Iraq.

I am a librarian at Indiana University Robert McKinney School of Law with a long interest in international law and human rights. When I arrived at the law school in January 2017, I was intrigued by its Military Commission Observation Project, which is part of our law school’s Program in International Human Rights Law.
In January 2018, Professor George Edwards circulated a note to faculty, staff, students and graduates announcing that we were all eligible to travel to monitor military commission war crimes hearings at Guantanamo Bay, Cuba (for live monitoring in the courtroom) and to Ft. Meade (for CCTV monitoring).   In February 2018, I submitted my application and supporting documents to the Pentagon for travel to both Guantanamo and Ft. Meade, as a non-governmental organization (NGO) observer. The Pentagon cleared me for travel to Guantanamo and to Ft. Meade. Due to various circumstances, I have opted to travel to Ft. Meade for my first observation mission.

Upcoming hearings

The military commission hearings I plan to monitor are against a man from Iraq whom the prosecution calls Abd al Hadi al Iraqi, but who calls himself Nashwan al Tamir. The U.S. accuses him of being a senior member of al-Qaeda Iraq, liaison with the Taliban, and perpetrator of war crimes. The charges include denying quarter, attacking protected property, using treachery or perfidy, and attempted use of treachery or perfidy in a series of attacks in Afghanistan and Pakistan between about 2003 and 2004, and conspiracy to commit law of war offenses.  He faces a full range of sentencing possibilities if convicted – a term of years, or life in prison. The death penalty is not on the table.

As I was preparing for monitoring, I wanted to review motion papers and other official documents for the case. I looked up the case at mc.mil.  However, much of the very recent court documents are hidden behind a blocked screen that indicates that those documents are undergoing a security review and are not accessible to the public at this time.

Preparing to Monitor

My trip will begin in about a week.  To prepare for the case, I have been reading the following sources: The Know before You Go to Guantanamo Bay Manual and The Guantanamo Bay Fair Trial Manual, principally authored by Professor George Edwards, with the assistance of McKinney stakeholders and contributions from many others.  These manuals provide significant and necessary information for anyone monitoring these cases.

My mission

As an observer / monitor, my mission is to attend, observe, be observed, analyze, critique and report on the military commission hearing at Guantanamo.  I am looking forward to this opportunity.

As part of my mission, I plan to submit another blog post before I depart, and send in posts while there.

Larissa Sullivant

Library Faculty

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

Program in International Human Rights Law

Indiana University McKinney School of Law