Author: cdunlap2014

Guantanamo Bay August 2017 Hearings in the 9/11 Case – My Observations

I traveled to Guantanamo Bay, Cuba to monitor the 21 – 25 August 2017 hearings in the U.S. Military Commission case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon.

I represented the IU McKinney Military Commission Observation Project (MCOP) of the Program in International Human Rights Law (PIHRL).  My role was to observe the proceedings and provide independent, impartial, and accurate accounts of the proceedings.  Below I describe the week of hearings and activities that I and my fellow NGO’s participated in.

Monday 8/21 – Full Day of Hearings

NGOs at Camp Justice

NGO’s representing Indiana University, the ABA, The NYC Bar Association, and the Pacific Council on International Policy at Camp Justice, Guantanamo Bay, Cuba prior to military commission hearings August 21, 2017. 

Courtroom Setting & Preliminary Matters

The three other NGO’s that I was traveling with, myself, and our monitors entered the courtroom for our first day of hearings Monday morning at 8:30 for a 9:00 start time.  During our meeting with Mr. Connell, Learned Counsel for Mr. al Baluchi, on Sunday, he told us that this is the 25th set of hearings that he has participated in while representing their Mr. al Baluchi.  During this preliminary time before the hearings convened officially, while I was sitting in the observation area attached to the courtroom, I had a few observations about the surroundings and the logistics  as people entered and prepared for the hearings to begin.  On his way into the courtroom Gen. Martins individually greeted and shook the hands of the victims’ family members who were in the in gallery.

In the courtroom itself with two guards on either side of each defendant, each of the five detainees were brought in one at a time and escorted to their places at their respective counsel’s tables.  The detainees were unshackled and dressed in what we were told was traditional afghan clothing.  It appeared that all of the female civilian defense team members were wearing headscarves and modest clothing covering everything but their hands in deference to their client’s religious beliefs, while none of the female military personnel on the defense, prosecution, or guard detail seemed to dress any differently than they otherwise would (i.e. traditional western business attire and military uniforms).

When the judge entered the room all of the people in the courtroom and the viewing gallery stood except the detainees.  During the proceedings, the security force inside the courtroom consisted of approximately 19 military guards, three of which were female, who sat in chairs on the side of the courtroom closest to the detainees.  During the proceedings the guards rotated in and out of the courtroom periodically in pairs, presumably to provide a break for the guards during the proceedings.

Judge Pohl

Judge Pohl

Gen Martins

General Martins, Chief Prosecution Counsel

Judge Pohl initially addressed each of the accused and asked them each individually if they understood that they had a right to attend the hearings but that they could decline to attend as well.  They all indicated that they understood this with a simple “Yes” stated in English.  Mr. bin Attash spoke to the judge about his ongoing objections to his lead counsel Ms. Bormann which has been an ongoing issue for Mr. bin Attash.  I learned later during my conversation with Gen. Baker, Chief Defense Counsel, that his objection is based on a difference of opinion on trial strategy and not based on her gender.  The NGO’s learned that Ms. Bormann has asked the Judge on several occasions to step down as Mr. bin Attash’s counsel but the judge has denied the request.

Ms. Bormann

Photo provided by the Miami Herald of the Learned Counselors for the five 9/11 Defendants, from Left: David Nevin for Khalid Sheik Mohammed; Cheryl Bormann for Walid bin Attash; James Harrington for Ramzi bin al Shibh; James G. Connell III for Ammar al Baluchi; Walter Ruiz for Mustafa al Hawsawi.  

The final preliminary matter that was discussed was brought up by the attorneys for Mr. al Hawsawi.  They informed the judge that all their computers lost power that morning and as a result they were unable to access all of their documents for the hearings.  The judge informed the parties that during the morning session he would attempt to address those matters that did not involve the al Hawasawi team, and would address those issues pertaining to Mr. al Hawasawi later when hopefully the power would be restored to their computers.

Motions Addressed

Once the preliminary matters were addressed, the court turned to the list of motions on the docket for the day.  There were several motions that were handled relatively quickly which are summarized as follows:

Preliminary Discussion on 502 – Issues of personal jurisdiction

Several of the parties stated that more discovery is necessary so they were not taking part in this motion today.

Mr. Al Baluchi’s team stated that they are awaiting some clarification from the classification review process of the documents they intend to use regarding their classification level.  Specifically, 5 of their 11 documents submitted have different classification markings than they are currently authorized to see.

This particular issue brings up one unique situation in this case that has 5 different defendants.  With this one specific motion, several of the Defense teams had differing litigation strategies from each other team.  This shows how differing strategies may impact each of the individual defendants differently.

Noises & Vibrations

The next motion to be addressed was brought by Mr. bin al Shibh’s team.  Their client has complained for some time that he has ongoing issues about various noises and vibrations bothering him in the detention facility.  His attorneys stated that when he complains about it to the guards he is disciplined, and that those disciplinary penalties have escalated under the current camp commander.  Mr. bin al Shibh’s counsel told the court that these issues have interfered with their attorney client relationship and that they are seeking relief from the judge who has issued a prior order directing any noises and vibrations directed at Mr. Bin Al Shibh by the government to cease.  The attorneys argued that these orders have been routinely ignored and that they suggest the judge consider abating the proceedings until there is a resolution.

Transport Van Pictures

Mr. al Baluchi’s team had a motion to use pictures that they had taken of the prisoner transportation vans admitted into evidence but they were marked FOUO (For Official Use Only) in the classification review process.  This means that their client is not permitted to see the photos due to the various security features on the vans.  This issue was resolved with an agreement that the defendant’s team could use the photos in their case but they would not be publicly displayed or displayed to the defendant.

Hearing on Motion to Suppress Statement & Issue Protective Order

The main issue for the day’s proceedings that was argued at some length concerned a written statement from the 5 detainees outlining their response to the charges against them.  The defendant Mr. al Hawsawi’s counsel claims that the document is overly prejudicial to their client and should be suppressed from evidence. This document was filed during a time when 2 out of the 5 defendants arguably had counsel in place and 3 were proceeding pro se.

The prosecution made several arguments in response to this motion.  First, the document has been publicly posted on the internet and on the Military Commission website since 2009.  Second, the statement was not coerced and was voluntarily submitted by the defendants in order to show their pride in the 9/11 attacks and to plead guilty and confess to their crimes.  In addition, the judge at the time ordered it released publicly and no one or counsel objected at the time of its public release.  The session ended that afternoon with counsel for Mr. aL Hawsawi stating that they planned to present their response at the next public court date.

Meeting with General Martins

After the hearings concluded on Monday, our group of NGO’s had the opportunity to meet with General Mark Martins, Chief Prosecutor for the Military Commissions.

NGO's with Gen Martins

NGO’s meeting with General Mark Martins, Guantanamo Bay, Cuba

General Martins spent over an hour talking with us and answering our questions.  After giving us some general background about the Military Commissions process, how it differs from a traditional Article 3 Court, and also from a traditional court martial process, we talked about some specific issues.  General Martins addressed some of the unique situations that arise by having the proceedings at Guantanamo Bay.

During the meeting we discussed that the base was established originally as a law of war camp and some of the facilities used have been re-purposed to accommodate the current proceedings but weren’t originally designed for that purpose.  For example, the defense issue of listening devices in the rooms where they meet with their clients was discussed.  We discussed the fact that these rooms were originally built and have been used for multiple purposes, including detainee interrogation and interviews where the use of video and audio monitoring is often employed.

Tuesday 8/22 – Closed Hearings

Today the hearings were closed to the NGO’s and the public since they were discussing classified information, but we had the opportunity to meet with Gen. Baker, Chief Defense Counsel.  Gen. Baker is the 7th Chief Defense Counsel since the Military Commissions process began after 9/11.

Gen Baker

General Baker, Chief Defense Counsel, Military Commissions 

General Baker started our meeting by giving us some background about his position.  He said that as of 2012 there were 12 GSA (General Service Administration) positions on the defense teams, and now there are 96 authorized positions although not all are currently filled.  He also outlined his general staffing guidelines for trying to have 23 personnel for each death penalty case, 19 for each non-death penalty case and 6 personnel dealing with sentencing issues.

Gen. Baker also indicated that his role was not to represent any defendants but to assist all of the various defense teams assigned to each particular detainee.  Typically, the defense teams have common interests and needs but occasionally there are different needs that may actually be in opposition to each other as was recently demonstrated by the testimony of one of the defendants (Mr. al Darbi) against another defendant (Mr. al Iraqi) neither of which are not involved with the KSM 9/11 case that we were there to monitor.

We also spent some time talking to General Baker about the anticipated timeline and the appeals process after the trials are actually done.  General Baker indicated that historically there is an 80% reversal rate on capital cases in Military Commission proceedings.  General Baker indicated several unique challenges that he said have posed significant challenges to this process; 1) The issue of torture has infected the process, 2) The issue of classified information and how to deal with it while also maintaining a fair process, and 3) The generally challenging logistics of having these proceedings at Guantanamo Bay, Cuba.

 

Camp X Ray

Picture of Camp X-Ray, the now abandoned open air facility that was originally used to house the initial detainees at the base. 

Hill

Chuck Dunlap and Justin Bingham in front of the Marine facility at Guantanamo Bay. Cuba

Wednesday 8/23 – No Hearings

There were no hearings today so we took the opportunity to visit a variety of places on the base including Radio GITMO, Camp X-Ray (the original site detainees were placed in open air facilities), and Marine Hill.  We also took the opportunity to get in a work out at the base gym (which is a fairly new, very nice facility) and especially enjoyed the showers which were several steps up from the showers in the latrine tents at Camp Justice.  We also went to Windmill beach and the NEX to buy more supplies.

Radio GITMO

A collection of the rare and extensive record collection at Radio GITMO

 

 

 

 

 

 

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A display showing the military chain of command inside the Marine Hill facility 

 

Thursday 8/24 – Full Day of Hearings

On Thursday, the hearings began at 9:00 AM with 4 of the 5 detainees present.  Mr. al Hawsawi was not present.  After discussions with the guards by counsel for Mr. Hawsawi in the courtroom under oath from the witness stand, Mr. Ruiz addressed the court about a letter that was hand delivered to him from his client that morning.  Mr. Ruiz stated that his client declined to attend the hearing due to being subjected to jarring and rough transportation rides in the van that brought him to the courtroom.  Mr. Ruiz stated that based on this, the detainee did not voluntarily waive his right to be present, at which point the judge recessed the proceedings until Mr. al Hawsawi could be brought to the courtroom.

Defense Argument of Islamic Response Statement

The proceedings were reconvened at 10:59 with all 5 of the detainees present.  The judge initially addressed Mr. Hawsawi and told him that in the future there would only be two options regarding attending the hearings; 1) sign an unconditional waiver to attend for the session or 2) attend in person and do not waive their right to be present.

The Court then moved to have the Defense address the issue of the defendants’ previous statement that the prosecution argued on Monday should be admitted .  Mr. Ruiz argued several points to show why “The Islamic Response to the Government’s Nine Accusations” document should not be part of the court record.  Specifically Mr. Ruiz cited the following points; 1) It is undisputed that 2 of the 5 defendants were represented by counsel at the time and therefore the individual detainees represented by counsel could not submit documents to the court on their own; 2)  The status of the case at the time was still an active case even though it was continued; 3) The statements by the defendants were not voluntary; 4) The statement was not actually signed by the parties; 5) a curative instruction by the judge is not adequate to protect the defendant from the prejudicial value of the statement.

The prosecution responded that the statement was not a pleading seeking relief but was a confession and the judge was not required to stop the defendants from making such a statement.  After both parties presented their arguments to the court, the Judge indicated that he would take the issue under advisement and issue a decision at a later time.

Issue of Disabling Audio in Attorney Client Meeting Rooms

The next issue the court addressed concerned the disabling of all audio recording in the attorney client meeting rooms in the detention facility on Guantanamo Bay.  The Court had previously entered an order prohibiting all audio recording in the client meeting rooms, and that order was still in effect.  The defense counsel indicated that in another case there had been an incident of recording devices found in the client meeting rooms and they wanted the court to reiterate its order and to also allow the defense teams to verify that audio recording was not occurring.  The prosecution and defense agreed to work together to try and satisfy the defense teams’ concerns.  It was also noted that for security reasons the guards are allowed to monitor the meeting rooms via video but without any audio.  The court then recessed at 1:15 until after lunch.

Issue of Preservation of Black Sites as Evidence

During the break, the NGO’s went to the Commissary for lunch. The court reconvened at 2:15. After a few minutes addressing the issue of listening devices in the client meeting rooms, the court moved to address the issue of preservation of the black sites as evidence.  The issue was raised by the Defense teams that the Court permitted the destruction of the Black Sites which the Defense teams wanted to visit and document in order to possibly submit mitigation evidence but which had been “decommissioned,” or destroyed as the defense states.

Mr. Nevin, Counsel for KSM and Mr. Connell, counsel for Mr. al Baluchi, took turns asking the judge questions in a voir dire process about his role in the original order to preserve the black sites where the defendants were held and then the process where the judge entered another order allowing the sites to be decommissioned without the defense counsel receiving a copy of the order in a timely fashion.  After the defense counsel asked the judge questions about what happened during this process and what the judge knew of the sequence of events, the defense rested and the court shifted to a different topic with the substance of the black site issue scheduled to be argued in Friday’s session.

Prosecution’s Proposed Scheduling Order

The next issue to be addressed was a discussion of the prosecution’s proposed scheduling order for moving the proceedings forward.  The government said that new resources (not a new courtroom) should be in place by Nov. 2018 , enabling two simultaneous trials/hearings to take place sharing the current courtroom.  Specifically, they proposed a 4/3-day rotation with one trial having 4 days on and 3 off and the other trial having 4 off and 3 on.  The judge said that the 9/11 case due to its size would not operate concurrently with another one.  Also, they could only do 1 death penalty case and one non-death penalty case at the same time and not 2 death penalty cases.

Until the improvements are completed in 2018, the prosecution recommended that the judges coordinate the schedules so they could maximize the use of the courtroom.  Also, the Government confirmed that they are not contemplating adding a new courtroom due to the “lack of political will” of the Pentagon to spend the money required.  There was a lengthy discussion about how feasible & logistically realistic it would be to build another courtroom.  The judge postponed this conversation until October when they are scheduled to reconvene for the next round of scheduled hearings.  One other option that was presented was to try to set up a SCIF (Secure facility) in the Washington DC area to do the 505 H and 806 hearings (Classified sessions) so they don’t have to go to GITMO for those.

Threat Assessment Documents

The next topic for today was on a discovery request from Mr. al Hawsawi’s team.   They argued that some documents related to a threat assessment of al Hawsawi were not produced by the Prosecution that the defense team wanted.  The prosecution is exerting a Deliberative Process Privilege which the judge will consider and rule on later after arguments.

End of the day

At the end of the day, the judge laid out several motions to be considered on Friday with a morning open session followed by a closed classified session.  At about 4:30 the judge allowed the defendants to pray in the courtroom before they were transported back to their detention cells.

Friday 8/25 – Morning Hearings

Court convened at 9:00 AM with none of the defendants present.  After confirming with the guards and defense counsel that all of the defendants had voluntarily waived their presence in the courtroom by having the guards testify in court, and a few other preliminary matters, the court turned to several issues: (a) the defense motion to disqualify the judge and the prosecution; (b) abate the proceedings due to the destruction of the black sites were the defendants were held; (c) and the inability to adequately obtain exculpatory evidence by the defense.

Argument to recuse Judge, Prosecution & Abate Proceedings due to Destruction of Black Sites

Mr. Niven and Mr. Connell lawyers for Khalid Sheik Mohammed and Ammar al Baluchi respectively,  argued that the exculpatory evidence at the black sites was destroyed without any notice to the defense teams, the substitute videos are not sufficient substitutions, and since this is a death penalty case, the only solution is to abate the proceedings and remove the judge and prosecution team.  The defense argues that a video recording that the court had made of the site is not adequate since it does not capture things like temperature, vibrations, lines of sight, sounds, humidity, and experts can’t see it in person.  Since this is a crucial part of the mitigation of the proposed death sentence, there is no other remedy but to abate the proceedings.

Mr. Niven & Mr. Connell argued that the government’s bad faith has been persuasive in this case and then laid out a time line of events, as follows:

1) Aug. 2012 – Defendants initially asked the court to order preservation of the black sites so they could inspect them and obtain mitigation evidense;

2) Dec. 2013 – The black sites are ordered preserved by the judge;

3) June 2014 – The judge after ex parte communication with the prosecution issues an order saying it is OK to “decommission” (aka destroy) the black sites (Order 52EE) but the redacted order does not get distributed to the defense attorneys at the time for unknown reasons

4) July 2014 – The Prosecution tells the judge that they will send the defense counsel a redacted order regarding destruction of the black sites

5) January 2015 – Defense counsel notice the order in the order book and contact the court to determine what it is since they never received a copy of it.

5) February 2016 – The defense counsel first receives the redacted order 52 EE issued in 2013 permitting the government to decommission the black sites

Mr. Swann, counsel for the Prosecution responds to the defendants’ motion by arguing that there is no basis for disqualification of the judge or the prosecution.  Mr. Swann argues that if there was an improper order by the judge that it is grounds for appeal not recusal.  In addition, the Classified Information Protection Act (CIPA) is the core issue here.  Specifically, the preservation of an alternative as was done in this case with the video has been consistently approved.  In addition the precedents that the defense relies on focus on evidence that was destroyed without a court order unlike this case.

Press Conferences and Final Dinner

After the court sessions were over, our group of NGO’s headed to the trailer next to the media room to watch the press conferences from the prosecution, the defense counsel and also the victims families.  After that, we had our final dinner together as a group at the Bay View restaurant.

PC TV

Mr. Connell, Counsel for Ammar al Baluchi, during the press conference, Guantanamo Bay, Cuba

 

PC Screen

Video feed prior to the Press Conference at Guantanamo Bay, Cuba 

 

 

 

 

 

 

 

 

 

Dinner

Group of NGO’s and Convening Authority representatives at Bay View restaurant, Guantanamo Bay. Cuba.

Saturday 8/26 – Travel back to Joint Base Andrews

Boat

Picture from the ferry boat of the boat used by Judge Pohl and his staff to cross Guantanamo Bay to the air terminal.

Saturday was our travel day back to Joint Base Andrews and we had to turn in our security badges, clean out our tents and make our way to the area to check our bags for the trip back.  After loading onto the ferry for the trip across the bay we boarded the plane at 10:00 and after 3 ½ hours we were back in the United States.

 

Charles R. Dunlap, J.D.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Travel Day to Guantanamo Bay to Monitor U.S. Military Commissions in the 9/11 Case  (August 19, 2017-August 26, 2017)

This is my second trip to observe the military commission hearings at Guantanamo Bay, Cuba as part of the Military Commission Observation Project (MCOP) of the Program in International Human Rights Law (PIHRL) of the Indiana University McKinney School of Law.  My role is to observe the proceedings and provide an independent, impartial, and accurate account of the proceedings.

I left Indianapolis Friday afternoon August 18 and drove for 9 hours to joint base Andrews, where the charter plane to Guantanamo Bay, Cuba was scheduled to depart at 09:00 on Saturday morning August 19. I was told to arrive at the Andrews Visitor Center by 06:00 and meet the escort from the convening authority who would fly with us.  Upon my arrival at the visitors center, one of our escorts vouched for me at the front gate guard station so I could drive onto the base to the terminal.  I followed our escort to the terminal where I met the other 3 Non Governmental Organization representatives (NGO’s) who are traveling to Guantanamo Bay for the KSM / 9/11 hearings with me.  There were representatives from the American Bar Association, the New York City Bar Association, and the Pacific Council on International Policy.

NGOs

NGO’s traveling to Guantanamo Bay 8/19/2017, at the family waiting room at Joint Base Andrews.  From Left to Right, Neysa Alsina, Victor King, Justin Bingham, Chuck Dunlap 

 

 

 

 

 

 

 

 

 

 

I handed out copies of the Guantanamo Bay Fair Trial Manual and the Know Before You Go: Guantanamo Bay (which were produced by the MCOP and are routinely distributed to other NGO’s traveling to Guantanamo Bay for the military commission hearings) books at the terminal for them to have as resources during our trip.

What to Expect

“Know Before You Go To Guantanamo Bay” publication produced by MCOP as a guide for those attending Military Commission Hearings

After an uneventful 3 ½ hour flight we arrived at about 1:00 in the afternoon in Guantanamo Bay.  Upon landing we were the last group to exit the plane since we were seated in the very rear of the aircraft.  We entered the main hanger and were processed through initial security procedures which consisted of a review of our travel orders issued by the Pentagon, our passports, and the other documents we had completed in order to travel to Guantanamo Bay.

After clearing through the initial security process in the hanger, we entered the terminal next to the hanger where I briefly got to say hello to Tyler Smith who was traveling back on the same plane we arrived on after observing the Abd al Hadi al Iraqi hearings the prior week.  Since we were the last ones to be processed through security, we had to hurry up and get loaded up onto the vans that were waiting to take us to the waiting ferry.  The ferry is a large military transport boat boat that can hold hundreds of people and also vehicles to cross the bay from the airport to the other side where the military commission hearings are held.

Aline10

The military ferry that we traveled on to cross Guantanamo Bay from the air terminal side to the Military Commissions side.

Dolphin

Photo of a dolphin taken from the ferry as we crossed Guantanamo Bay from the air terminal to the other side where the military commission hearings are held.

 

 

 

 

 

 

 

 

After traveling across the bay on the ferry we collected our luggage and got settled into our tents.  After that, we went to get our security badges which took place within the secured area of the courtroom compound at camp justice.  After that we made a trip to the Navy Exchange (NEX) to stock up on supplies for our week’s stay. The NEX is essentially like a Super-Walmart with food, clothing and general merchandise.

Tent

The accommodations that NGO’s receive during our stay at Guantanamo Bay, Cuba 

 

Camp Justice

An exterior photo of the tent compound at Camp Justice that the NGO’s stay in while attending the Military Commission Hearings

Later in the evening the 4 of us (NGO’s) were invited to attend a BBQ hosted by representatives from the Al Baluchi defense team.  In addition to the Al Baluchi defense team, several other members of other detainee defense teams were also present.  During this time we had the opportunity to talk with some of the defense attorneys about what to expect during the week ahead and how they expected the various issues on the docketing order to be addressed.  We learned that the defense teams anticipated a full day of public hearings on Monday followed by a closed session (closed to the public) on Tuesday due to the discussion of classified information, a public hearing day on Wednesday, and most likely closed sessions on Thursday and possibly Friday.  The members of the defense teams stressed that this tentative schedule is subject to change depending on how the hearings proceed day to day, but if the schedule stays as has been predicted by the defense teams, we should have some down time during the day so we may have opportunities to visit some other parts of the base including Camp X-Ray, Marine Hill and radio GITMO.

While we don’t know our full schedule for tomorrow yet, we have been told that at some point we will also have an opportunity to meet with the prosecution team as well and discuss the proceedings from their perspective.

Charles R. Dunlap, J.D.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

 

Returning to Guantanamo for a 2nd Time; August 19-26 Hearings in United States v. Khalid Sheikh Mohammed, et al.

KSM in Court

Artist Rendering of Khalid Sheikh Mohammed during Military Commission proceedings at Guantanamo Bay, Cuba

I have been involved with the Indiana University McKinney School of Law’s Military Commission Observation Project since 2014.  During my time with the project I have observed hearings at Ft. Meade, Maryland and also at Guantanamo Bay, Cuba in both the Khalid Sheikh Mohammed – 9/11 proceedings as well as the Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri – USS Cole case.  I look forward to returning to Guantanamo Bay after 3 years.

In New York City

Coincidentally, I am currently in New York City attending the American Bar Association meetings and plan to visit the National 9/11 Memorial site tomorrow.

September-Eleven-Memorial-Plaza-NY-01

National 9/11 Memorial, New York City

Guantanamo Hearings Resume After Judge Ordered Halt in Proceedings

IRAQ ABU GHRAIB TRIAL
An artists view of United States Army Chief Circuit Judge Col. James L. Pohl (AP Photo/HO/Cpl. Annette Kyriakides)

As I prepare to attend the hearings and review various materials in order to bring myself fully up to date on the current issues in this case, one issue has garnered a lot of attention in the press.  According to the Miami Herald, last month the judge in the case, Army Col. James L. Pohl, suspended all hearings due to a conflict with the base commander regarding sequestration of judges and judicial staff during transit to GTMO, specifically on the boat transportation across the bay at the base in Cuba.  The article stated that the judge was concerned when a separate boat for the judicial staff was recently discontinued by the base commander.  This change would have required the judge and his staff to be in close proximity to members of the prosecution, defense, media, family members and NGO’s during the trip across the bay from the airport to the portion of the base that houses the military commission facilities at Camp Justice.  As a result, according to the article, the judge felt that this could negatively affect the integrity of the proceedings and the independence of the trial judiciary or raise that perception.  Earlier this month an arrangement was reached to once again provide separate boat transportation to the judicial staff once they arrive at GITMO and the hearings are set to resume the week of the 19th.  This is another example of the unique circumstances and situations that are involved with the location of the Military Commissions.

Camp Justice

Camp Justice, Guantanamo Bay, Cuba.

Charles R. Dunlap, J.D.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

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

IMG_1436

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

IMG_1447

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