Author: cdunlap2014

Wrapping up the week of al Nashiri GTMO hearings – Charles Dunlap

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Watching the press conference from the NGO lounge. Note the picture is of the GTMO courtroom that was used for the hearings.

Press Conference

After the hearings were over for the week in the al Nashiri case (4 – 7 November 2014), the prosecution and the defense teams held a brief press conference with the four media representatives who were with us at GTMO for the week.

Victims and Victims’ Families

During the press conference, the victims and their families had an opportunity to also speak to the media.  When the victims and their families spoke it was a reminder of what this trial is all about and the 17 people that died on the USS Cole and the 39 wounded.  During the hearings it is easy to get caught up in the “legal arguments” and the various details and tactics and lose sight of why we are here.  For me, hearing the victims and their families at the press conference really made me re-focus on them and their experiences.  In addition to the overall suffering that they have been through, the main point that they expressed was their frustration with the slowness of this process and their desire for there to be an end to this and to see justice done.

Last Days Events

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NGO’s gather for a farewell cookout and a chance to reflect on the weeks events.

On the last days of the trip, we had an opportunity to do several things.

Time with Defense Team – Rick Kammen and defense lawyers

The NGOs spent an hour and a half with Rick Kammen and the defense team.  They were extremely generous with their time and were able to answer many questions about the hearings we had observed.

Again, some of the overall themes from that meeting were similar to others; the incredibly difficult logistics and the high costs that result; the complicated issues associated with the case which are compounded with the issue of classified information; and also how politics at the highest levels impacts the trials.  Speaking specifically to this last point, Rick talked about a time when the former leader of Yemen was in the United States to receive medical care and the defense team tried to depose him.  The US State Department denied it due to their policy of not wanting to impose on foreign leaders in the US who are here for medical treatment.

Visit to Camp X-Ray

The NGOs also had an opportunity to visit Camp X-Ray, which is the outdoor detention facility where they held the detainees when they first arrived.  We were not able to take photos of the site but we were able to see it.  It is abandoned now but there is a federal court order in place to preserve it as evidence in some of these proceedings.  Camp X-Ray was only used to house the detainees for a few months when they first arrived on the base because they didn’t have any other facilities to house them in at the time.  Within a few months they were moved to more permanent structures indoors.

Radio GITMO

Another place NGOs were able to visit and tour was radio GTMO.  The base has a radio station that broadcasts 3 channels on the base.  They have an arrangement with Cuba so the signal is not broadcast into mainland Cuba.  The radio station has one of the largest collections of vinyl records in the world with many being extremely rare and limited editions.  The stations still plays the records on the air.  One unfortunate fact is that due to the licensing rights from the record companies, if the records are taken out of circulation they must be sent back to the record companies where they would be destroyed.  It’s crazy to think that some of these one of a kind records made especially for the military would be lost forever and destroyed but that is what is required due to the licensing rights.

Some of the one of a kind vinyl albums that Radio GITMO still plays

Some of the one of a kind vinyl albums that Radio GITMO still plays

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One of the last few stops was to the abandoned lighthouse on the edge of the base.  One of the interesting things was the collection of old boats that was in the area which were used by people who fled Cuba or other areas to try and immigrate to the United States.

The abandoned lighthouse with some of the old boats that people used to defect to the base.

The abandoned lighthouse with some of the old boats that people used to defect to the base.

Conclusion

I want to thank Professor George Edwards and the Indiana University McKinney School of Law for allowing me to participate in this incredible experience.  It is something I will remember forever and a trip that has given me so much information.  There are so many things that I was not able to include in this blog but that I will try and address in other forums since one of the goals of the NGO program is for those that witness the process to tell others.

Al-Nashiri GTMO Hearings – 5 – 6 November 2014 – Charles Dunlap

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Chuck Dunlap with Rick Kamman, Chief Defense Counsel for Al-Nashiri

Now that I have reliable internet access I wanted to post the remainder of my blog entries from my trip.  First about the hearings themselves.  The hearings took place Wed. & Thurs morning Nov. 5-6.  Rather than go into detail about all ten of the motions I will try to give an overview and summary of the proceedings.

Range of Motions

The hearings were scheduled for two days and actually ran for 1 1/2 days.  Of the ten issues, they can be summarized as follows;

  • dismissal of the death penalty since the defendant will not have access to classified evidence against him;
  • abatement of proceedings due to lack of adequate medical care for defendant
  • defense request to have access to an MRI machine to assess the defendant’s mental state
  • request for the defendant to have a Skype call with his parents
  • motion to withdraw the death penalty because it is no longer a military necessity
  • motion to suppress evidence due to lack of Miranda warning
  • motion to exclude hearsay evidence
  • other more procedural motions

Themes –Logistical Issues

Overall, the hearings were much like you would see in any court. However, one of the strong themes that came out of the hearing days was how the logistical challenges of being at Guantanamo Bay impacted everything and made things more challenging (and costly).  The logistics of having all of the court personnel travel to the base, combined with some of the limitations once at the base were very evident.

Another theme was the uncertainty on some of the procedures and trial logistics.  The parties often referred to the Military Commissions legislation but often there was no specific guidance on some of the more detailed points and issues so the parties had to look to other authority like federal courts.IMG_1429

Schedule Going Forward – 

The parties also worked with the judge to try and plan out the new schedule going forward.  The next big event will be pretrial hearings scheduled for February when the parties are set to begin arguments focused on the government’s efforts to introduce 72 hearsay statements which constitute the bulk of their case.  Since the standards for hearsay are different in Military Commissions, this will be one of the main pretrial events.

For those interested in looking at the specific pleadings, transcripts etc. you can find them at http://www.mc.mil/CASES.aspx).

Day 2 at GITMO – Al Nashiri Hearings – Tues., 4 November 2014 – Charles Dunlap

NGO Boat tour of Guantanamo Bay

NGO Boat tour of Guantanamo Bay

Hearings delayed

We arrived at GTMO on Monday, but hearings did not begin until Wednesday.  So had some time today (Tuesday) to get some logistical tasks done and have some tours. We began by having breakfast at the base commissary.  All you can eat buffet for $2.55, not bad.  We then all came back to get our credentials that will get us access to the courtroom for the hearings.  Obviously there is a high level of security but the credentialing process was very smooth.  The level of security in the area really ramps up on days of hearings when the defendant is brought to this side of the base from the detention facility located several miles away.

NGO's "exploring" the bay (aka "fact finding mission")

NGO’s “exploring” the bay (aka “fact finding mission”)

Boat tour of Guantanamo Bay

Once we completed the credentialing process, we went to one of the docks to get a boat for a tour of the Bay. We were divided on to 2 different pontoon boats with some military personnel who took us around to various parts of the bay.  It certainly wasn’t a difficult assignment for any of us as the pictures will

Site of abandoned and  demolished base hospital from WWII era

Site of abandoned and demolished base hospital from WWII era

show.

Dinner; It’s a small  military base

After returning from the boat trip and getting cleaned up we went to dinner as a group at the Irish Pub on the island. To further demonstrate what a small place this is, the Chief Prosecutor General Mark Martins and his team were also having dinner there at the same restaurant, and sate at the table next to us.  This can actually be a challenging issue (especially for the judge) since many stakeholders, including the victims’ families, fly down to GTMO together, use the same gym and facilities and restaurants, which can lead to potential issues of ex parte communication, among others.

Call it a day

After dinner we all went back to our tents to retire and get ready for the first day of hearings the next day which I will report on and post tomorrow.

Base Commander's House

GTMO Base Commander’s House

Sea-life at GITMO

Sea-life at GITMO

Meeting with Chief Prosecutor – Part II – Wednesday

The NGO Lounge at GITMO where NGO's have a place to work (without Wi Fi though)

The “NGO Lounge” at GITMO where NGO’s have a place to work (without Wi Fi though)

More on the NGO meeting with the Chief Prosecutor General Martins

To conclude a summary of our meeting with General Martins, Chief Prosecutor for the Military Commissions, here are several other topics we discussed in our meeting:

No Miranda warnings required

• One of the primary differences with the Military Commissions and traditional Article III Courts are the different standards regarding Miranda Rights and the admission of hearsay evidence. Generally the standards for admission of hearsay evidence and evidence gathered without first issuing a Miranda warning is less strict. Gen. Martins stressed that due to the nature of the environment where the evidence is collected (often in a theatre of war) there are not always trained law enforcement personnel available and therefore the standard should be different than in a traditional civilian law enforcement/Court setting. That being said, he reiterated that even though the standards may be “lower” there is still a threshold that must be met and not just anything can be admitted. There is still a need for the prosecution to prove that the evidence being proffered is reliable through a “totally of the circumstances” analysis and the defense has an opportunity to counter that through cross examination etc. which is all set forth in the MCA of 2009.

Timetable for al Nashiri trial

• One specific question from the group was when he thought the actual trial would begin for Al-Nashiri. Gen. Martins indicated that he anticipated that at the current pace and posture of the case, the trial could begin in the fall of 2015.

Evidence generated from “enhanced interrogation”?

• In addition, he also noted that for the government’s case it will use no testimony generated from any enhanced interrogation procedures.

Declassifying information

• Gen. Martins also indicated that the government is under an obligation to declassify as much information as possible under the MCROE 505 and that they have been striving to meet that obligation. He also pointed to the volume of materials and direct resources and documents from the proceedings that are available for anyone to ready and review on the internet, and that they strive to make the entire process extremely open and public as the MCA requires.

Listening device disguised as smoke detector in attorney / client meeting room; FBI investigating defense team members

Some of the aL-Nashiri hearing NGO Observers at a table outside our tents.  They stopped letting NGOs have wifi access at this location.

Some of the aL-Nashiri hearing NGO Observers at a table outside our tents. They stopped letting NGOs have wifi access at this location.

• In response to a question from the group, Gen. Martins discussed some of the particularly troublesome issue that some observers of the process have mentioned concerning the revelations of a listening device concealed in a smoke detector in a room where attorneys met and conferred with their clients at GITMO, as well as the FBI interviewing members of the defense team and having nondisclosure statements about the interviews so other members of the defense team would not know of the interviews occurring. The FBI issue is currently being litigated in the 911 case and Gen. Martins has walled himself off from that case so he wasn’t able to comment very much on that other to say that it was a legitimate issue from both sides and the judge is currently hearing arguments on it. Regarding the smoke detector issue, he indicated that the facts presented showed that the room was a multi-purpose room used for other detainee procedures where surveillance was necessary and the listening devices were not operative during the attorney client meetings.

ISIS / ISIL — Captured taken to GTMO?

• An additional question raised by the group concerned the current conflict with ISIS/ISIL in the middle-east and whether or not in the event any of their members were captured, would they potentially be transferred to GITMO to face a military commission. The General responded that it is an open question (and theoretical at this point) on how that would be handled. There are several issues associated with that question that all have to do with the limited jurisdiction of the military commissions based on the MCA of 2009. You would need to explore if they are affiliated with Al Qaeda, are they foreign nationals, are they unlawful enemy belligerents etc.

Future Updates

I will also be posting future updates from the subsequent day’s activities of this trip.

Day 1 – Meeting with Gen. Martins, Chief Prosecutor Post 1 of 2 -Charles Dunlap

NGO Meeting with Chief Prosecutor General Martins

On the afternoon we arrived at GTMO for the al Nashiri hearings (Monday, 3 November 2014), the 10 NGOs met with Brigadier General Mark Martins, the Chief GTMO prosecutor. We met from 6:00 p.m. to 7:30 p.m.

We talked with him and his staff about what to expect in the Al-Nashiri hearings and about Military Commissions in general. Here is a summary of some our discussions, with more to come in future posts:

Criticisms of the Military Commissions

A main criticism of the Military Commissions is that many commentators believe that the Article III court system is better positioned to conduct these types of trials. Gen. Martins agreed that in most cases, Article III Courts can do an effective job.  However, he said that in some cases, the Military Commissions were the best forum for several reasons, including the complexity of the cases, rules of evidence in a combat situation, and others (to be discussed in additional posts to come).

One issue that he pushed back on concerned media reports that “hundreds” of “terrorism” cases have been tried in federal courts in the same time that only a few have been tried in Military Commissions. His issue with this statement is that it does not tell the entire picture.  His said that it is not an apples to apples comparison since only 15 of those cases were eligible for a Military Commission to begin with.  In many cases of concurrent jurisdiction, it may be appropriate for the federal courts to handle the cases but Military Commissions are set up for the particularly challenging cases which is why they take a great deal of time.  In addition, since federal legislation prohibits transferring detainees to the mainland, the Military Commissions are the only way forward with some of the cases based on the legislation creating the Military Commissions and providing them  sole jurisdiction.

International Law and the Military Commissions?

Another issue discussed was the international law requirement for Courts to be “Regularly Constituted.”  This presents a challenge since these Military Commissions were only created after 9-11 and while they are legislatively created and not Article II courts created under military / executive branch authority, some issues exist associated with their longevity and if they are in fact “regularly constituted.”  This is one area where having a federal court (Article III) trial would alleviate this concern.

Continuing this post..

I plan to continue this post tomorrow when I have additional time with the Wi Fi.

Today (Tuesday, 4 November) was pretty much devoted to boat tour of the Bay and associated areas.  Tomorrow (Wednesday, 5 November) we will be observing the first day of scheduled pre-trail hearings for Al-Nashiri.

More to come tomorrow….

Arrival at GTMO for al Nashir hearings – 3 November 2014 – Charles Dunlap

My Plane from Andrews Air Force Base to GTMOMy Trip to Guantanamo Bay

Today, Monday, 3 November 2014, has been an eventful day.

The day began by arriving at Andrews Air Force Base at 7:00 a.m. to be escorted through the gate to the air terminal.  After checking in and being issued my ticket I waited in the terminal until all the other NGO’s had assembled.  While we were waiting (several hours) we introduced ourselves to each other.  There are 10 NGO’s representing a variety of organizations from around the country who are participating.

Copy of Guantanamo Bay Fair Trial Manual.

Copy of Guantanamo Bay Fair Trial Manual.

I also took the opportunity to pass out copies of the Guantanamo Bay Fair Trail Manual for U.S. Military Commissions that Prof. George Edwards and his Indian a University McKinney School of Law students have been working on.  The Manual was much appreciated by everyone, and will be very useful for all the NGO’s during the hearings.

The only other delay in getting ready to depart was a brief diversion outside while the Secret Service swept the terminal in preparation for Vice President Biden’s departure on a different plane.

Our flight to Cuba; Landing at GTMO

The flight to Cuba was uneventful. The charter flight was about 3 hours long (It would have been closer to 2 hr. 15 min. if Cuba permitted us to fly over the island).

Once we landed at Guantanamo Bay we unloaded and waited to go through document check in.  From there everyone boarded vans to drive down to the dock to catch the ferry across the bay to the main part of the base.  From there we were driven to Camp Justice which is a tent city that has been set up on the old WWII vintage runway that is no longer in use.  We had some time to get settled into our bunks, fortunately while each tent sleeps 8 there were only 4 men and 2 male tents so we had plenty of room with just 2 per tent.

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Arriving at Camp Justice — Our tent city home for the week.

After getting settled in, we made a trip to the base NEX to stock up on supplies. The NEX is pretty much like a small town Walmart and has all of the essentials.  After that trip we headed back to our tents again and then rendezvoused shortly thereafter for our meeting with General Martins who is the lead prosecutor for the Military Commissions.

Meeting with General Mark Martins, Chief Prosecutor

I will post a blog that discusses this meeting in more detail, but I was extremely impressed with Gen. Martins and the few members of his team that he had with him.  We had over an hour and a half with him and we were able to ask him pretty much anything we wanted.  Even with some of the more challenging questions that were asked, he answered directly and faced some of the particularly challenging issues head on.  Again, I will have a separate post covering this meeting.

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Some of the tents in Camp Justice. It is built on an abandoned WW II air strip.

A Jamaican Dinner; Day’s End; Tomorrow

After our meeting with Gen. Martins we all loaded into the van for a short ride to the Jamaican Jerk Chicken restaurant. The food was great and we enjoyed the very pleasant evening weather.  From there it was back to Camp Justice for a few conversations among the group about our day so far and our meeting with Gen. Martins.

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My bed in my Camp Justice tent.

Based on the current itinerary, we are scheduled to reconvene for breakfast tomorrow (Tues.) get our credentials, possibly have a boat tour around the base and work on some of our various projects.

What About WiFi?

I have to say that the internet issue is as bad as I had been warned it was.  It seems like everywhere we go everyone is checking their phones and computers to see if we have stumbled on a Wi-Fi signal that we can access.  When we are lucky enough to get a signal the speed is extremely slow.

Hopefully, I’ll be able to post this sometime tomorrow (Tuesday)!

Headed to Gitmo – Chuck Dunlap

Chuck Dunlap's Boarding Pass - Andrews Air Force Base to GTMO - 3 November 2014

Chuck Dunlap’s Boarding Pass for his flight from Andrews Air Force Base to GTMO – 3 November 2014

Chuck Dunlap arrived at Andrews Air Force Base around 6:00 on the morning of Monday, 3 November 2014 for his flight to Guantanamo Bay, Cuba to monitor the U.S. Military Commission hearings in the case of al Nashiri, an alleged mastermind of the 2000 suicide bombing of the U.S.S. Cole off the coast of Yemen.

Mr. Dunlap had difficulty posting a post this morning, so we are re-posting his Andrews’ photos. He will post again upon his arrival at GTMO later today.

Chuck Dunlap's Plane - AAFB to GTMO

At Andrews Air Force Base. This is the chartered plane that will take Chuck Dunlap from Andrews to GTMO today.

This morning, Mr. Dunlap reported “We had a brief delay waiting for VP Biden’s plane to leave.” So, they were expected to arrive at Guantanamo Bay later than expected.

GUANTANAMO BAY TRIP PREPERATION – AL NASHIRI HEARINGS By Chuck Dunlap

I was honored to be selected last week to serve as an observer for the Al Nashiri (USS Cole Bombings) hearings at Guantanamo Bay, Cuba the week of Nov. 3-7. I have previously participated in the Program in International Human Rights Law and its U.S. Military Commission Observation Project at IU McKinney Law School in mid-June, 2014.  At that time, I observed the hearings of Khalid Shaikh Mohammad and the other accused 9-11 co-conspirators via a secured video link at Ft. Meade in Maryland.  This June trip was after an earlier scheduled hearing I was planning on attending was canceled at the last minute due to a schedule change by the presiding judge.  Since then, and based on what has happened to other participants in this program, one thing I fully count on is last minute schedule changes.  For that reason, I’m trying not to get my hopes up to high about observing the hearings until I am actually on the plane headed to Cuba.

Plans for Future Blogging

The overall mission of the IU McKinney School of Law’s Program in International Human Rights Law and the U.S. Military Commission Observation Project is to “Observe, Analyze, Critique, and Publish materials on the hearings.” As I prepare for the trip I will be posting several bog entries about various aspects of this assignment including the preparation process, preliminary research, work on the Fair Trial Manual, and of course the actual hearings.  From what I hear, due to the lack of Wi-Fi and internet access at the base (at least for NGO’s and journalists) much of my reporting of my observations from the actual hearings may be more post-visit than actually during the week of my visit. (more…)

Ft. Meade – Military Commissions Hearings 6-16-14 By Chuck Dunlap

Main Entrance to Ft. Meade

Arriving at Ft. Meade, June 16, 2014
I arrived at Ft. Meade a little before 8:00 am on Monday morning to make sure I didn’t miss any of the hearings. After my last experience of missing everything due to a schedule change, I didn’t want to take any chances. Fortunately, there was a very short line to get into the base and I was waived in after telling the guards what I was coming
onto the base for. They seemed surprised that the Military Commission hearings were being broadcast on the base.

Chuck Dunlap and Clarence Leatherbury at the Post Theatre

Chuck Dunlap and Clarence Leatherbury at the Post Theatre

The next step was to figure out where on the base the theatre was. After stumbling around driving for a while I first (more…)

Mission Scrubbed!

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Driving to Ft. Meade — Before learning that the hearings had been suspended!

Detour en route to Ft. Meade!

Well, today didn’t turn out exactly as I had planned. I was scheduled to be at Ft. Meade tonight getting ready for the USS Cole hearings tomorrow and Friday.

I left Indianapolis today around 11:00 after a quick visit to the office to get a few last minute things wrapped up. I swung by the law school on my way out of town to pick up the HUGE briefing binder for the program. Just as a side note, my huge thanks for the group that put these together. I was reviewing my electronic version all weekend in preparation for the trip and it was extremely thorough and helpful. After picking up the binder I headed out of town on my 9 hour trip to Ft. Meade.

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To Pittsburgh

Generally the road trip was pretty uneventful and I was anticipating getting into my hotel near Ft. Meade around 9:00 PM. I made pretty good time and around 6:00 decided to stop in Morgantown WV for dinner and to check e-mails etc. During this break I learned from Kristi, who was the only one of the 4 of us who was able to attend today’s hearings, that there had been a bit of a change of plans. Apparently things went so smoothly and quickly today that they didn’t need the other two days for the open hearings, and the only things left to cover were classified so they would not be open to the public. Grrrreat. So after a few frantic calls, emails and texts we confirmed that basically we were done for the week (before I got started).

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Though I thought I was going to Ft. Meade today, I ended up in Pittsburgh instead!

At this point, being 6+ hours from Indy at 7:00 PM I wasn’t too pleased. Fortunately for me, I grew up in Pittsburgh and my parents still live there so I ended up backtracking about an hour and a half to my parents home in Pittsburgh for the night. At least I got to spend some unexpected time with them and I have an unexpected day on Friday to get some more work done at the office.

My next trip to Ft. Meade – June hearings in the 9-11 case (Khalid Shaik Mohammed)

Chuck Dunlap and parents he visited on an unexpected stop in Pittsburgh after GTMO hearings suspended.

Chuck Dunlap and parents he visited on an unexpected stop in Pittsburgh after GTMO hearings suspended.

While I am disappointed my first Ft. Meade mission got scrubbed at the last minute, I am still looking forward to the June 9-11 hearings, involving several men accused of masterminding the attacks on the World Trade Center and the Pentagon in September 2001.

This does make me think though of all the logistics involved with this and even in today’s digital society, why there are only a few limited sites to watch the hearings. It sure would have been easier if I could have just flipped on C-Span and watched from the comfort of my living room. I’m sure my very patient wife would have also appreciated me being home and able to simply watch it on TV as well.

All I can say is that I am hopeful that the June 9-11 hearings will turn out better for me!

Chuck Dunlap
5/28/14