From 20 to 31 January 2020, the U.S. government is holding pre-trial hearings at Guantanamo Bay, Cuba, in the military commission case against 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon.

I was nominated by the Indiana University  McKinney School of Law in to travel to Guantanamo to monitor these hearings. I graduated from the law school in 2018, and am participating in the school’s Military Commission Observation Project, that sends faculty, staff, students and graduates to Guantanamo to monitor hearings live, and to Ft. Meade, Maryland to monitor the hearings via CCTV.

At Guantanamo, my mission is to attend, observe, be seen, analyze, critique, and report on the military commission proceedings in Guantanamo Bay, Cuba. 

From Indiana to Maryland

Today I traveled from Indiana to a small town in Maryland near Joint Base Andrews (Andrews Air Force Base), which is where my plane to Guantanamo is scheduled to depart at 10:00 tomorrow morning (Saturday).

This is my seventh observer mission to Guantanamo Bay, Cuba and I have picked up a few tricks to help ensure a successful mission.

It is essential to arrive near Andrews the day before a scheduled flight out of Andrews because the flights to Guantanamo Bay usually depart early in the morning. It is a good idea to book direct flights early in the day in case there are flight delays or cancellations, because there are no flights from Indiana that would arrive in time on the morning of the Guantanamo flight.

I arrived in Washington DC at approximately 1:00 pm today on a direct flight from Indianapolis, and from there I took a Lyft to the Quality Inn at Joint Base Andrews in Clinton, Maryland. I chose this hotel because it is very close to the Visitor Control Center (VCC) at Joint Base Andrews, where I will meet my military escort to get on base in the morning. It is so close, in fact, that I can see the VCC from my room. In the morning I will check out of the hotel and walk across the street to meet my escort. From there we will drive through the Andrews main entrance and go to the base air terminal (the home of Air Force One) to catch our flight to Cuba.

Know Before You Go to Guantanamo / NGO Coin

I left Indiana this morning I stopped by the law school where I picked up fourteen copies of the Know Before You Go to Guantanamo Bay manual, which is a continuously updated color publication authored by Professor George Edwards, who founded our law school’s Guantanamo projects. We provide copies of Know Before You Go to observers from other groups we meet at Joint Base Andrews, and the observers can use the Manual during the week at Guantanamo. PDF copies of the Know Before You Go to Guantanamo Bay can be downloaded on http://www.GitmoObserver.com. 

Additionally, I picked twenty NGO observer challenge coins which can be purchased for $15.00. Professor Edwards designed the coin with guidance and input from various Guantanamo stakeholders.

Testimony at Guantanamo This Week

At the hearings this week we are expected to hear testimony from psychologists James Elmer Mitchell and Bruce Jessen who are purported to have developed the Enhanced Interrogation Techniques (EIT) program, containing techniques such as waterboarding, that was implemented following the 9/11 attacks in CIA-operated black sites. 

The first day will likely be 22 January 2020 due to the observance of Martin Luther King Jr. Day.

I plan to make another blog post from the terminal at Joint Base Andrews in the morning and plan to continue to post on the blog throughout the hearing week.

Benjamin Hicks

Juris Doctor (2018)

Military Commission Observation Project Trial Observer / Monitor

Program in International Human Rights Law

Indiana University McKinney School of Law

17 January 2020

During the week of 31 March to 3 April 2019 I traveled to Guantanamo Bay, Cuba to monitor U.S. Military Commission pre-sentencing proceedings against convicted war criminal Majid Khan.

This was my fourth trip to Guantanamo Bay representing the Program in International Human Rights Law of Indiana University McKinney School of Law. Indiana has a Military Commission Observation Project which sends law students, graduates, faculty and staff to Guantanamo to serve as independent, objective monitors of criminal proceedings. I have also monitored Guantanamo proceedings at Ft. Meade, Maryland, where cameras in the Guantanamo courtroom broadcast by secure CCTV.

In his guilty plea, Mr. Khan stated that after 9/11 he traveled from Maryland, where he had been living as a U.S. permanent resident, to Pakistan and agreed to participate in an al-Qaeda plot using suicide vests to assassinate the former President of Pakistan, Pervez Musharraf. He said that he later moved $50,000 USD to finance the 2003 J.W. Marriott bombing in Indonesia, an attack that killed 11 people. He pleaded guilty in 2012 to conspiracy, murder in violation of the law of war, attempted murder in violation of the law of war, providing material support for terrorism, and spying. The Military Commission Convening Authority agreed to allow him to withdraw his guilty plea to the charge of providing material support for terrorism after a D.C. circuit court ruled in another case that the charge could not be appropriately tried at a military commission.

A Different Dynamic for the Khan pre-sentencing hearings

During the three other proceedings I attended at Guantanamo, when the defendants entered the courtroom through a side door, they each had two soldiers, one on each side, and these soldiers sometimes held the arms of the defendants, as they walked into the courtroom. I was thrown off when Majid Khan entered the courtroom in Guantanamo Bay. Though guards were present, they followed from a greater distance than was the case with the other detainees I observed. Mr. Khan was also not dressed in the same way as the other detainees I have seen, he wore a black suit, that looked similar to the suits that his civilian defense counsel wore. He carried a blueish purple leak colored metallic looking water bottle.

It was hard to tell but when he came in it appeared that he opened the door himself to enter from the left side of the courtroom, of course United States serviceman provided security. He briefly turned to the back of the room and pointed towards the observation box, which sits behind triple pane sound resistant two-way glass. As he pointed, he spoke to his lawyer and it appeared he was asking who we were. We all sat calmly and did not make any motion, as communicating through the glass is forbidden.

Khan was represented by a team of attorneys who were seated to his right, on the left side of the courtroom. It surprised me how respectful Majid Khan appeared to be of the proceedings, to the judge, and of the process in general. When he spoke to Judge Watkins he addressed him as sir. This dynamic is quite different from the other hearings I have attended for those charged in connection with the events of 11 September 2001, and Hadi al Iraqi, an alleged al Qaeda Iraq member. On some occassions detainees have even worn military style fatigues into the courtroom.

Majid Khan—The Only High Value Cooperator in Guantanamo, Bay

Why is the dynamic different at the Khan hearings? I can guess that it may be because Khan is a cooperator. He is the only cooperator in Guantanamo Bay who is considered a high value detainee, and his lawyers brought this up at the beginning of the hearings and frequently throughout.

In his plea agreement of seven years ago, Khan agreed to serve no more than 25 years in exchange for his cooperation, 19 if the convening authority finds that Khan provides full and truthful cooperation amounting to substantial assistance. His time served began at the time of the plea agreement, which means he theoretically has 12-18 years left to serve, assuming that the agreement holds. There were concerns about this. The source of these concerns had to do with the government/prosecution being upset about the defense’s request for “Brady material”, material that the defense has argued might be used in the pre-sentencing hearing to mitigate the sentence he is awarded by the panel, as the military commission jury is called.

Exculpatory Evidence and Brady, Could it all Fall Apart?

There is a famous case in United States law referred to as Brady, or Brady v Maryland, which is a 1963 United States Supreme Court case that held, “ Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” This issue of Brady material dominated the hearing. Specifically, Khan and his defense team requested Brady material that might be used as a mitigating factor during Khan’s upcoming sentencing hearing. The hearing will take place before a panel (jury), that will decide Mr. Khan’s sentence, 19-25 years – in accordance with the sentencing agreement.

The public does not know what the material is that the defense has requested, or how and why the defense may believe that this material might be used to mitigate his sentence.  However, it likely has to do with the time Khan was in custody prior to arriving in Guantanamo Bay, and possibly the use of enhanced interrogation techniques. This could potentially be used to mitigate his sentence because if Khan was treated badly while in custody then under the Uniform Code of Military Justice, and possibly in the Military Commissions, this in and of itself could be used as a factor to mitigate sentencing. In other words, if someone is tortured, then a sentencing panel could decide, based on that fact, that the defendant should receive a lesser sentence. There is also an important balance between discovery and production of evidence on one hand and the protecting the national security interests of the United States on the other hand. Not to mention that a decision in this case could have further reaching implications, for instance in the 9/11 proceedings where mitigation specialists might seek to use Brady material to get the jury/panel to give a life sentence rather than the death penalty.

Meeting with Khan’s Lawyers

After the hearing I met with Khan’s lawyers and others on his defense team. We gathered at their living quarters and shared snacks and refreshments. At this meeting I noted they were in a unique position relative to the other defense teams I have seen in Guantanamo Bay, and I talked about the different dynamic discussed earlier in this article. A lawyer I traveled with brought up a good point that the government/prosecution appeared to threaten pulling out of the seven year old plea agreement if Khan’s team continues to request Brady material, and noted that this should not be sufficient grounds to pull out of the plea agreement because the only permissible reason for the government/prosecution to unilaterally withdraw should be for material breech.

Suggestion to Improve the Viewing Experience at the Expeditionary Legal Complex

I have a suggestion to improve the viewing experience for the victims’ family members, non-governmental observers, press, and others viewing the proceedings. These groups watch from a remote viewing facility at Ft. Meade Maryland, and in person at Guantanamo Bay. The problem is that we cannot see the detainee(s) faces. The feed shows only one camera angle from the courtroom at a given time, usually of the person who is speaking.

In person viewing in Guantanamo Bay is helpful because observers and victim family members watch the defendant(s) in person throughout the entire proceeding from the observation box at the rear of the courtroom, while observers at other locations only see the defendants when defendants are portrayed on the feed, so generally only when the defendants are the ones who are speaking in court. Keep in mind that this is all on a 40 second delay. My suggestion is that at least one screen at each remote viewing station in the United States, and at Guantanamo Bay, show a camera angle of the detainee(s) at all times, preferably an angle that shows the face. Keep in mind that, as it stands today, the visual feed only shows a small portion of the courtroom in Guantanamo Bay at any given time, alternating between camera views.

 

Benjamin Hicks

Juris Doctor 2018

Indiana University

Program in International Human Rights Law

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.

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.

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

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

3^rd Year Student

Indiana University McKinney School of Law

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 3^rd 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.

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.

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

3^rd Year Student

Indiana University McKinney School of Law

 

 

 

 

 

 

 

 

 

 

 

 

The sun has not risen yet as I wait at the Joint Base Andrews air terminal to board a flight to Guantanamo Bay, Cuba.

My mission today is to attend, observe, analyze, critique, and report on U.S. military commission hearings for alleged war criminals. The hearings this week are against five Guantanamo detainees who are alleged to have masterminded the 11 September 2001 attacks on the Pentagon.

I am part of the Military Commission Observation Project of Indiana University McKinney School of Law, where I am a student.

Getting to Andrews
I arrived at Washington National Airport in Washington D.C. after midnight – around 12:30 a.m. – about 7 hours later than I was originally scheduled to arrive at Dulles Airport. I began my trip at Indianapolis airport and two of my flights were cancelled.

I had planned to arrive yesterday afternoon but was forced to reschedule flights, which delayed arrival. My flight from Indianapolis to Detroit was cancelled but the folks at Delta were able to put me on another flight to Detroit later in the day. I made it to Detroit in time to catch my connecting flight to Washington D.C. but that connecting flight was also cancelled. All flights from Detroit to D.C. were overbooked so it was not possible to make it on time flying standby. I showed my invitational travel order to the folks at Delta and they put me on the next flight out. Do not book a flight to Washington that arrives the afternoon before a morning flight out of Joint Base Andrews. I barely made it and Washington National Airport is less than a thirty-minute drive from Joint Base Andrews. I went straight from the airport to Joint Base Andrews.

When I arrived at Andrews Visitor Control Center, a civilian escort picked me up and took me to Andrews air terminal, from where President Obama took his last flight on Air Force I 3 days ago — on Friday, 20 January 2017, after he left the Office of the Presidency.

At the terminal I met about a dozen other non-governmental organization (NGO) representatives who are also serving as Observers. I distributed copies of the Guantanamo Bay Fair Trial Manal: Excerpts, which was authored by Professor George Edwards and others at Indiana University McKinney School of Law. I have found the Excerpts to be a valuable tool to help me prepare for my mission, and I believe that other observers agree.
After distributing the manuals, the remaining manuals are left in the NGO Resource Center at GTMO.

Checking in at Andrews
Checking in at Joint Base Andrews is straight forward, similar to any commercial flights. Bags are labeled with green colored tags to identify the bags as belonging to NGO representatives. Next, I had to present my invitational travel order, APACS, and identification. Our identification functions as our boarding passes, although this is only because the printer is not working. Our military escort was kind enough to drive us all to the Starbucks on base, which opens at 5:30am.

Waiting to Board
Our flight to Guantanamo Bay was originally scheduled to depart at 8:00am, and we were required to be at Andrews at 4:30am for the flight

We just learned that our flight time has been delayed to 10:30am.

Now we sit and wait patiently to be allowed to board the plane and depart for Guantanamo Bay!

Written on 23 January 2017

Posted 24 January 2017

By Ben Hicks
J.D. Student
Military Commission Observation Project
Program in International Human Rights Law
Indiana University McKinney School of Law

 

Selected for Travel

I am a student at the Indiana University Robert H. McKinney School of Law and have been involved with the Military Commission Observation Project for almost a year now through the McKinney Law Program in International Human Rights Law. Through our program, students, faculty, staff, graduates, and other school affiliates have the opportunity to travel to either Ft. Meade in Maryland or Guantanamo Bay, Cuba to attend, observe, analyze, critique, and report on hearings for alleged war criminals.

I was selected to travel to Guantanamo Bay for the 25-27 January 2017 hearings of the five remaining detainees who are defendants in this case. Khalid Sheikh Mohammed, along with the other four defendants, is alleged to be involved in the 11 September 2001 attacks on the Pentagon, World Trade Center, and United Airlines Flight 93, which crashed in Pennsylvania.

During the McKinney Law Fall Recess, I traveled to Ft. Meade, Maryland to attend, observe, analyze, critique, and report on one of the hearings for the five remaining defendants in the case, via live stream from Guantanamo Bay, Cuba. Details about the hearing that I attended in Maryland can be found in my 2 November 2016 blog post. I wanted to attend hearings on the 25-27 January 2017 because the case involves the 11 September 2001 attacks, which makes this a high a high profile case that is the subject of intense scrutiny.

Preparing for Departure

Departing for Guantanamo Bay requires a lot of preparation and staying on top of emails and paperwork for many institutions including the Pentagon, McKinney Law, and the Overseas Study Office, in addition to the logistical requirements for making the trip. The Guantanamo Bay Fair Trial Manual has a “Know Before You Go” section that contains important information for those preparing for a mission to Guantanamo Bay. The manual is a compilation of resources and information to aid NGO representatives before, during, and after their missions to Guantanamo Bay or Ft. Meade. Also, when I arrive at Andrews Air Force Base, I will have excerpts from the Guantanamo Bay Fair Trial Manual to distribute to the other NGO observers. This is part of the role for the McKinney Law Program in International Human Rights Law. The excerpts are from the full volumes I and II and the manual contains a plethora of information right down to the layout of the courtroom and who sits where. The manual also discusses the rights of stakeholders in the proceedings, and has charts to help evaluate stakeholders’ rights. It also gives the source of law for each right being evaluated. The manual is a result of collaboration from previous observers and is continually updated as observers travel to hearings.

Eagerly Waiting

Despite intensive preparation, I know from previous experience that pre-trial hearings are sometimes delayed or cancelled, however I am hopeful that the pre-trial hearings will occur as scheduled. There are several other NGO observers scheduled to travel to Guantanamo Bay during the dates that I will be there. I look forward to working with these observers and receiving feedback and critique of the Fair Trial Manual.

 

By Ben Hicks

J.D. Student

Indiana University Robert H. McKinney School of Law

A Long Awaited Trip to Fort Meade

Over fall break I had the opportunity to travel to Fort Meade, Maryland to view the pretrial hearings of alleged terrorist Khalid Sheikh Mohammed (KSM). KSM is alleged to be involved in the September 11, 2001 terrorist attacks as well as other terrorist activities. Mohammed is currently being held in Guantánamo Bay, and while the hearings take place in Cuba, approved NGO observers can view the hearings via secure link from Fort Meade military base. I’ve been involved with the Military Commission Observation Project for almost a year now and this is the first time I’ve had an opportunity to view a hearing. This spring I was scheduled to attend the hearing of Abdul Hadi al Iraqi, who is alleged to be involved in attacks and terrorist plots in Afghanistan and Pakistan, however that hearing was postponed just before departure.

As an NGO observer it’s important to stay up to date on the hearing schedule because it changes frequently and sometimes with little notice. The KSM hearings were originally scheduled for Monday through Friday of Fall Break however we received word from Professor Edwards that the hearings most likely would not be held on Monday and the earliest start would be Tuesday. I arrived on Tuesday morning after an all-night drive from Indiana. After checking in at the Fort Meade visitor Center, I proceeded to the building on the military base where the hearings were streamed. I didn’t realize how large Fort Meade is. It has its own shopping mall with food court and hundreds of families live on the base, which is home to divisions of several government agencies.

Court is in Session

The court room was not at all what I expected. I was imagining a traditional looking court room and was playing off some stereotypes from the 1992 thriller “A Few Good Men”, however the court room was a simple room and full of books on rolling carts. Also I expected to see one camera angle for the duration of the hearings, however the court has several cameras for several camera angles and the feed switches camera angles depending on who is speaking in the courtroom. A few times during the hearing we had to pause because of problems with the translator’s equipment, which is apparently a reoccurring problem. This matter is further confounded by the fact that KSM speaks English and was educated in the United States. The main issue being discussed while I was at the hearing had to do with contents of KSM’s legal bin. Detainees have their own legal bin, which is a physical bin, and when they do any work in preparation for trial they are instructed to place this work in their legal bin so that it is not reviewed by unauthorized parties. Further any paper with writing or any material done in anticipation of trial is supposed to be stamped with a detainee specific stamp and number.

Topics for Consideration

Problematically KSM is not supplied with pre-stamped paper. His attorneys allege that material from his legal bin was reviewed during cell searches. The facts seem to support this claim and we heard testimony from several people with relevant knowledge of the incidents. It really seemed to come down to the fact that while the material was in the legal bin, it wasn’t stamped with the proper stamp and number. Those who gave testimony and who had relevant knowledge of the matter claim that when the cell was searched and the materials in question were discovered, a translator was summoned and that the translator recognized that the writing, which was in Arabic, was done in anticipation of legal proceedings. While, practically, a translator might be qualified to make this determination, procedurally, this is inappropriate because the translator shouldn’t be functioning in a legal capacity. Further, if the writing was done in anticipation of legal proceedings then the contents of that material should be limited to only KSM and his attorneys. These incidents threaten KSM’s attorney-client privilege, because unauthorized parties are reviewing legal material. However, one can also see why it might be problematic to provide KSM with pre-stamped paper to be used for legal purposes without knowing what he’s going to write on it and that it actually will be used for legal purposes.

The court went on to consider other motions and the subject of classified material became a forefront issue. Specifically, there were a lot of pages of classified material that the defendant’s attorney would like to have further access to. During the hearings in Fort Meade the live stream sometimes shows a document rather than a camera angle. During the hearing I attended, several documents were presented with sections of the documents blocked out, not visible, because the materials were considered classified. One of the problems that the court struggled with is what to do with this situation. The judge at one point, in an aside, plundered aloud whether he should be the one to review the documents which he himself claimed not to have access to. It was also briefly considered that it might be appropriate for KSM’s attorneys to have access to some of the classified material, while withholding it from the detainee himself. Of course this also presents challenges because KSM’s attorneys might be acting on information that KSM is not privy to himself.

A Word to Future Observers

As is often the case in legal proceedings, the Military Commission Observation Project pretrial hearings are often plagued with cancellation, delays, and other incidents that can affect the hearing schedules. In fact, when I went to Fort Meade over fall break there was concern that Hurricane Matthew could delay the hearing, but nonessential evacuated personnel were returned to Guantánamo Bay before that hearing was set to take place and the hearings preceded on Tuesday, one day later than previously scheduled. And the Abdul Hadi al Iraqi pretrial hearings in January were postponed as a result of a motion for continuance.

I drove out to Fort Meade and next time I’ll consider flying, but if I do fly I’ll be sure to purchase travel insurance in case something unexpected happens with the hearing that I’m scheduled to attend. Getting onto base at Fort Meade is easier than I expected. I submitted the proper paperwork to Professor Edwards prior to departure and didn’t have any problems when I got to the Fort Meade Visitor Center. However, after you’ve been cleared by the Visitor Center, make sure you attempt to enter the base through gate that is convenient to get to the viewing building and see the hearing. I learned the hard way that if you put the building location in your GPS, your turn by turn navigation might lead you into Fort Meade installation by a gate other than the one that is the most convenient for you. In the end I was fine however I entered Fort Mead military installation through an NSA drop off entrance. While I was allowed entrance to Fort Meade through the NSA entrance I was subject to additional security screening. This happened on the second day when I attempted to return for the hearings. On the first day I followed Prof. Edwards instructions, went in through the most convenient gate, and didn’t have any problems.