Author: jeffpapa

Preparing to Travel to Guantanamo Bay (Jeff Papa)

front cover - Guantanamo Bay Fair Trial ChecklistIntroduction

I am scheduled to travel to Guantanamo Bay, Cuba for pre-trial hearings beginning Monday, 15 September 2014. I have reviewed many documents related to the case I will monitor – against alleged senior al Qaeda in Iraq official named Hadi al Iraqi, who is said to have been a liaison with the Taliban. Hadi al Iraqi’s charge sheet is posted here on the Gitmo Observer website, where other basic Military Commission documents can be found.

My role is as an “NGO Observer”, sent to monitor the proceedings and determine for myself whether, based on the law and my observations of facts, I believe that stakeholders are receiving a fair trial. My most important tool for preparing for this mission is the newly launched Guantanamo Bay Fair Trial Checklist, which provides a framework for me to conduct monitoring.

The Guantanamo Bay Fair Trial Checklist

I have read and re-read the Guantanamo Bay Fair Trial Checklist, which is an innovative document created by Professor George Edwards, the Founding Director of the Program in International Human Rights Law (PIHRL) of the Indiana University McKinney School of Law. Edwards is also the founder of The Gitmo Observer – also known as the U.S. Military Commission Observation Project (MCOP) of the PIHRL.

Volume I of the Checklist identifies a list of right for stakeholders during pre-trial hearings. While this document will be further developed by PIHRL students at the McKinney Law School, the current version includes a comprehensive list of rights for victims, victim’s families, the accused, the prosecution, the press, and witnesses. The Checklist is very easy to use, and should be utilized by any observer of commission proceedings, whether they want to quickly learn basic facts or want to study in great detail a particular hearing.

The Checklist contains sources of domestic U.S. and international law for reference, and provides easy to understand, but comprehensive, checklists for each possible right, as well as general background information. If you review available background information about a particular hearing you will monitor, and then reading through this Checklist step by step, you will gain a very deep understanding of the issues involved, as well as the likely legal arguments, strengths and weaknesses of each party’s position.

An Objective / Neutral Source

The Checklist provides an objective, neutral framework for analyzing the commission proceedings. The Checklist will become the standard document for those new to commission observation, as well as for seasoned experts.

Checklist Volume 1

Volume I of the Checklist  covers pre-trial hearing stage issues, as that is the current stage of the most Guantanamo Bay proceedings today. But many of the Checklist considerations are entirely relevant to other phases (pre-hearing, trial & judgment, and post-trial/post-judgment). Future Volumes of the Checklist are planned to cover these remaining phases in a comprehensive manner.

In the 2014 summer, I traveled to Ft. Meade, Maryland to observe a different Military Commission hearing. I did not have the benefit of the Checklist , which had not yet been created. I read many documents for the earlier proceeding. I wish I had had the Checklist then. In preparing for my hearings at Guantanamo Bay next week, I appreciate that the Checklist is well-organized and clarifies the issues in my mind, and provides a very logical flow regarding what issues are likely to arise in a particular proceeding.

This Checklist  will become the standard for reviewing commission proceedings. Following the Checklist through its stages is easy to follow, and ensures that all issues are covered. The references to source law and rights within the document is also extremely helpful.

The full name of the Checklist  is  the Guantanamo Bay Fair Trial Checklist for U.S. Military Commission Participants and Observers: A Guide for Assessing Human Rights Protections for the Prosecution and the Defense, Victims and Victims’ Families, Witnesses, the Press, NGO Observers, and Other Military Commission Stakeholders.

A copy of the current draft of this excellent resource can be found at http://gitmoobserver.com/2014/08/12/guantanamo-bay-fair-trial-checklist-launches/

Charges Against Abd al Hadi al Iraqi (Jeff Papa)
Hadi al Iraqi

Hadi al Iraqi

The Latest Guantanamo Bay Charges

On 18 June 2014, the Military Commissions arraigned Abd al Hadi al Iraqi on a number of charges. Hadi al Iraqi’s first pre-trial (pre-commission) hearings are scheduled to be held at Guantanamo Bay, Cuba 15 – 16 September 2014.

I have been selected to travel to Guantanamo Bay as an NGO Observer for these hearings next month. I will be representing the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law. (We are also known at “The Gitmo Observer“).

Charges Against Hadi al Iraqi

Specific allegations against Hadi al-Iraqi  fall within five general charges. These are highlighted and summarized below.

Charge I: Violation of 10 USC 950t(6), Denying Quarter

The government alleges that Al Hadi directed forces under his control in Afghanistan and Pakistan that there should be no survivors allowed and that all hostilities should conclude with no opposing survivors, even if practicable to accept surrender.

Charge II: Violation of 10 USC 950t(4), Attacking Protected Property.

The government alleges that Al Hadi intentionally attacked a medical helicopter, which was clearly marked as medical and protected (more…)

Initial Thoughts on Abd al Hadi al Iraqi Hearing (GTMO) – Jeff Papa
Abd al Hadi al Iraqi

Abd al Hadi al Iraqi – The Defendant

In September 2014, I am scheduled to travel to Guantanamo Bay, Cuba to observe proceedings related to charges against Abd al Hadi al Iraqi.  Military Commission charges against Hadi allege that he was a senior member of al Qaeda and liaison to the Taliban and Al Qaeda in Iraq, and that he led insurgency efforts in Afghanistan and Pakistan.

These alleged activities included supporting and directing attacks against U.S. and coalition forces, utilizing illegal means, such as attacks on civilians, using perfidy, and firing on medical personnel during efforts to evacuate casualties. He also stands accusedof denying quarter by directing that coalition forces should not be taken alive.

Following his activities in Afghanistan and Pakistan, he is also alleged to have traveled to Iraq for the purpose of helping to lead al Qaeda in Iraq.  The maximum sentence for these charges, if convicted, could be confinement for life. (Dept. Defense News Release 426-13, 10 June 2013).

A recent article by Carol Rosenberg in the Miami Herald (Iraqi Appears in Guantanamo Court on War Crimes Charges, 18 June 2013) states that Hadi was captured in Turkey in 2006, and was held by the CIA until 2007, when he was transferred to Guantanamo. Rosenberg’s article describes a long career for Hadi, including service in the Iraqi Army during the 1980-88 war with (more…)

Should USS Cole Jury Be Sequestered on Guantanamo Bay?

Sequestering the Jury on Guantanamo Bay?
The USS Cole trial, which is tentatively scheduled to begin in a military courtroom at Guantanamo Bay in October 2014, could last for 9 to 12 months. The military commission that will try the case will have a pool of 37 “members” (jurors) to choose from who will act like jurors in a typical criminal case.

A judge may sequester a jury for multiple reasons, with one reason being to try to avoid “jury contamination”, including jurors being exposed to information about the case that is not officially entered into evidence in the case. Contamination might occur in many different ways, including from watching television or reading newspaper reports, or from overhearing conversations of people involved with the case.

In yesterday’s hearing, the defense made the point that in a normal trial the jurors would spread out to their individual offices and homes over many square miles, and would have very little chance of accidental contact. But in this case, once the 37 possible members (jurors) arrive at Guantanamo, serious questions of jury contamination could occur.

Unique Nature of Guantanamo
Mr. Rick Kammen, who is a lawyer for one of the USS Cole defendants (al Nashiri) spoke at our MCOP Pre-Departure Briefing. He noted that due to the unique nature of Guantanamo, air transport to Cuba is limited. Any plane that carries people to Guantanamo for the hearings and trial might contain a mix of trial participants (meaning a mix on the same flight), including, for example, trial counsel (prosecution), defense counsel, witnesses, victims’ family members, legal experts, government personnel, NGO Observers, and others involved with the military commissions.

Once at Guantanamo, the small spaces and facilities create a parallel danger of possible contamination.

This raises interesting issues of accidental or purposeful cross-talk or other improper influence.

Defense Requests
The defense asked the judge to prohibit jurors / member from access to certain items, such as newspapers and other periodicals, and that members sequestration be considered.

This is a daunting request for many reasons, including that it is said that the trial may last 9-12 months.

There would certainly be accidental contact, according to defense, and the extraordinary conditions call for extraordinary measures. The government chose this forum. The 37 potential members were selected by the commission and are service members, so one can assume the Commission took into account where this proceeding will take place and these are not civilians; they are military men and women who are accustomed to being away from friends and family for extended periods.

Counter arguments include that the members will all be military officers, and they will be able to follow all instructions of the judge, including instructions to avoid media reports about the case, outside conversation about the case, or other possible taints. This is so even if members are permitted to return to their duty stations in the U.S. or elsewhere during any breaks in the trial.

Judge’s Resolution
To resolve this issue for the day, the judge determined that by one month prior to completion of the member / jury voir dire (the pre-trial process involving the selection of the portion of the 37 person panel that will hear the case), a housing plan for the members / jurors will be determined.

Reprisals? (Ft. Meade – 22 April 2014)
Jeff Papa attends U.S.S. Cole al Nashiri Military Commission hearing broadcasted from Guantanamo Bay, Cuba to the Post Theater at Ft. Meade, Maryland.

Jeff Papa attends  U.S. Military Commission (Guantanamo Bay) hearings in the case involving the alleged masterminds of the U.S.S. Cole bombing. The hearings are live at Gitmo & by secure videolink to the Post Theater on the military base at Ft. Meade, Maryland.

Today’s hearings were on the case of  the alleged masterminds of the bombing of the U.S.S. Cole, a naval ship harbored in Yemen in 2000. Judge Pat Riley (Indiana Court of Appeals) from our team is in Guantanamo Bay, sitting in the courtroom. Luke Bielawski and I are at Ft. Meade, Maryland, watching the Guantanamo proceedings on secure videolink.

What’s on for Today? A Question of Reprisals

The Commission hearings covered several interesting issues today. The most interesting issue was the last item discussed.

The defense has requested information about third party civilian deaths and collateral damage caused by US or coalition forces in order to consider a defense of reprisal.

Judge Pohl began by pointing out that the government alleges that reprisal is only a defense if the defendant is a state actor. The defense agreed, but reserved the right to argue that Nashiri is a state actor. The defense claimed that this is relevant to his state of mind and any ability to participate in the governments alleged far-flung conspiracy. This could show extenuation and mitigation.

Judge Pohl followed up on this by asking if you would have to show that the defendant knew about these very specific actions or just that he knew (more…)

Pre-Departure – Jeff Papa – Going to Ft. Meade for USS Cole Hearings

Going to Ft. Meade — USS Cole Case

I will be attending the Guantanamo Bay hearings that are being simultaneously broadcast from GTMO to at Ft. Meade, Maryland next Tuesday and Wednesday. I know very little about the details of these proceedings, other than many I learned from media reports and from good general information I learned from Andrew Northern in my National Security Law course.
Pre-Departure Briefing
Last Friday, we had the opportunity to participate in a Pre-Departure Mission before we set out for our respective sites, Guantanamo Bay for some, and for other like myself, Ft. Meade, Maryland.

We were fortunate to have as our primary Briefing Mr. Rick Kammen, who is an Indianapolis attorney, who is the death penalty counsel in the USS Cole case, which happens to be the case I will be monitorin.

Mr. Kammen described in a very compelling fashion over the course of a few hours the point of view of the defense team and many of the difficulties encountered. He also provided a great basis for critical thinking about the process, pro and con.

This opportunity was extremely valuable, and together with the very extensive briefing book prepared by Professor Edwards’ Program in International Human Rights Law (PIHRL), I believe I will have an outstanding basis from which to begin viewing and thinking about the proceedings next week.

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