Author: kmmcmain

Detour from USS Cole – Official Tour of Ft. Meade – Kristi McMains – 29 May 2014

What to do at Ft. Meade when Observers are barred from hearings?

The Judge in the al Nashiri case determined that hearings for the remainder of the week were to be classified. NGO Observers, like those of us representing the IU McKinney Military Commission Observation Project, are not permitted to monitor classified hearings.

After receiving word that the hearings were done for the week for us, I scrambled to catch a flight back to Indianapolis on Thursday (what would have been the second day of hearings for this week). I was hopeful that my (more…)

A Student’s Perspective on the USS Cole Trial- Kristi McMains- May 28, 2014 (Part 2)

Al Nashiri hearing – Thursday, 28 May 2014

There was a lot of discussion in today’s hearing of the report from the Senate Select Committee on Intelligence’s (SSCI) about the entire Rendition, Detention and Interrogation Program. James Zender’s blog entry covered a lot of the substantive legal issues, so I will just over some of the moments that were particularly memorable.

New attorney added to Prosecution Team

A new attorney was added to the prosecution, which made the final count 12 attorneys for the prosecution and 5 (more…)

A Student’s Perspectives on the USS Cole Trial- Kristi McMains- May 28, 2014 (Part 1)

I started today with a feeling of excitement and nervousness. After communicating with the other MCOP participants, I realized that I would be the only representative from IU McKinney at the hearing today. What a responsibility! At the end of the day, I also realized that the judge had cleared his docket for the week. In other words, today was the only day this week that hearings were going to be held that were not classified.

I have decided to split up my post for today in two separate posts: one with my personal observations and unique experiences, and a second post that deals with the substantive legal issues that were covered in the hearing.

I have never been on an active military base, and had no idea what to expect. My taxi driver told me that it sometimes takes awhile to get cleared to access the base, especially with persons who enter by taxi. When we pulled up to the gate, my driver had to turn off the engine, open all the doors, and show both his license and mine to the guards. After a thorough inspection, I was allowed to come in. Success!

I pulled up to the Post Theatre, and came into the darkened room only to notice that I was the only participant present. I am the typical type A law student, so I made sure that I was over thirty minutes early, which gave me plenty of time to get settled and prepare for the day. The individuals overlooking the observation informed me that no cellphones, laptops, iPads, or anything else capable of recording is allowed into the theatre. For some reason, I had not anticipated this and slightly panicked because, as a law student hooked on electronics, I was intending on taking notes of the trial on my iPad the entire time. Thankfully, one of the leaders had an extra pad of paper. We have her to thank for my reporting to you all!

I was informed that they had received word that the trial was going to be closed until 10am, meaning that there would be no streaming due to the sensitive nature of the material being heard. Fortunately, the leaders streamed Good Morning America, so I was able to watch Matt Lauer and friends while I was waiting for the trial to begin.

Around 10:45am, Judge Pole appeared on our screen and the hearing was called to order. Before hearing any substantive legal issues, Judge Pole informed Al-Nashiri of his rights as a defendant, such as the right to appear at any and all trials he wished to observe and, at the same time, choose to not appear at any of the hearings without any prejudice towards his case.

I was struck when I first saw Al-Nashiri. I do not know what I was consciously or subconsciously expecting to observe, but I was surprised to notice that he looked like an average man that you would see walking down any street in New York or Indianapolis. When you search for images of Al-Nashiri, the man that appears looks very different than the man that I saw today. Today, Al-Nashiri was dressed all in white and was clean shaven with a full head of dark hair. He looked younger than I expected; I found myself stunned at the idea of him planning this horrific terror attack at such a young age. To be frank, I almost forgot that the hearing I was witnessing was one that was so crucial to national security. It wasn’t until the defense counsel referred to his client as “a potential terrorist and a potential member of Al Qaeda” that I was thrust back into the reality that I was watching a hearing relating to the prosecution of a man accused of acts of terror against our US military and who is an alleged member of the most infamous terrorist group in the world. Al Nashiri was leaning back in his chair, yawning, and looking sort of nonchalant about what was happening around him. It was not the reaction that I would have expected from a man who was on trial for his life.

One thing that I can say with 100% certainty is that these men, men who are accused of war crimes that are heinous to the average citizen, are receiving their right of zealous advocacy through effective counsel. The attorneys for Al Nashiri argued just as efficiently and effectively as they would for any other client. I found myself wondering if I would be able to do the same if I were placed in their shoes. The lawyer in me wants to scream a resounding “Yes”, that I would be able to respect the legal system and the rights of these individuals to have a fair trial that adequately and fully provides them the opportunity to be innocent until proven guilty. On the other hand, there is a part of me that wonders if my advocacy would be hindered in any way because of the pre-conceived notions that are inherent in a case of this political magnitude. It was apparent from my observation today that equality, fairness, and justice were not only sought, but achieved in this military commission.

There were only a few other people in Post Theatre with me observing this hearing. I spoke with two individuals, one from the ACLU and another from the Human Rights Campaign and both of these individuals have had prior experiences observing military commissions and they had both been to Guantanamo multiple times. They were each so nonchalant about their travels that it blew my mind. I wanted to hear all about their experiences, but they were insistent that it was just like any other business trip. I’m hoping James can shine some light on this- I would be ecstatic to have any opportunity to travel to Guantanamo Bay and be in the location where some of these military commissions that are so crucial to our nation’s security occur. I’m not sure it would be an experience that I could ever see as ordinary.

I was fortunate enough to tag along with the ACLU representative for lunch. I thought that lunch was going to be brought into the theatre, but instead we were dismissed for an hour an a half to do whatever we liked. We ended by stopping by a weekly farmer’s market on base and stopping at a Subway. The lunch area reminded me of a mall food court with many different types of food and stores shoved into a small area.

The rest of the afternoon flew by. The other observers knew the docket schedule and were surprised at how quickly Judge Pole and the attorneys were going through the motions that were contested. When we ended around 4:30pm, Judge Pole announced that the rest of the hearings would be classified and therefore closed to the public. Today was the only hearing that was available for streaming. It was a bummer for our other MCOP members who were either en route to the base or already in Maryland. Despite their travels, they were unable to view any part of the hearing.

As I was waiting for Whitney, a fellow MCOP participant, I called my father to tell him about the day and what I had observed. I have always lived life with a “No guts, no glory” attitude, and as a result have been able to meet people and have experiences that I would not have been able to have if I hadn’t had the courage to ask. I told my dad that it was unfortunate that I was only going to be on the base for one day and had not had a sufficient chance to explore what else it has to offer. He suggested, perhaps in a joking manner, that I should find the Commander of the entire base and ask for a tour. I just happened to be standing across from the Garrison Headquarters, where the Commander and Command Sergeant Major’s offices are located. I meandered over to their offices and walked up the steps of the grand building. I confidently walked through the front door only to come to a stop with a “Oh no, I’m not supposed to be here” moment. I immediately turned to walk right back out the door when I bumped into two very important looking men.

It is not everyday that you casually bump into the Commander and Command Sergeant Major of an active military base, but that is exactly what happened to me. I recognized their photos as they were hanging in Post Theatre as a way to inform everyone who was in charge. They were very cordial to me, but looking into their eyes, I could tell that they were very serious men. I told them that I was a law student here to observe the USS Cole trial and that I was interested in learning more about Ft. Meade. To my excitement and surprise, they asked for my business card and said that they would pass along my information to their head JAG officer who may be able to give me a tour tomorrow. I gave them Whitney’s information too, and we are both excited about the opportunity to have a sort of backstage tour to Ft. Meade.

I loved being at Ft. Meade to observe this hearing. I am sad that my fellow MCOP participants were unable to make it to the Al Nashiri hearing, but I am excited, as I know they are, to have the opportunity to travel out to Ft. Meade again in June to observe hearings related to 9/11. I am very grateful for this opportunity and feel as though I have been privy to something that very few people will ever get to experience in their lifetime.

The Post Theatre

The Garrison Headquarters, home of Commander Foley’s and Command Sergeant Major Latter’s offices

A Student’s Perspective on the USS Cole Trial- May 27, 2014- Kristi McMains

Military commissions have a lot in common with what we know as a regular trial that takes place in the US Court system. What differentiates a military commission is that a military commission is a court of law traditionally used to try law of war and related offenses. An alien unprivileged enemy belligerent who has engaged in hostilities, or who has purposefully and materially supported hostilities against the United States, its coalition partners or was a part of al Qaeda, is subject to trial by military commission under the Military Commissions Act of 2009.

I have read the brief of the Amici Curiae prepared by retired military admirals and generals in support of the defense council who is in opposition to the military commission as the forum to try this case. An amici curiae opinion is an opinion on the case or an issue in the case that is written from an interested third party who is not directly involved in the litigation. There are two points in this brief that particularly struck me: that the attack on the USS Cole occurred at a time where there was no “war”, and secondly that allowing this “retroactive” dating of when a time of war existed would lead to endangerment of American soldiers lives were they to be tried in a military court abroad. I find that these two issues are inherently linked to one another, and I must respectfully, yet strongly, disagree with the assertions from the defense.

“Terrorism” as it is known today is a fairly new concept. I asked my parents if they were worried about “terrorists” and “terror attacks” when they were growing up, and their answers both surprised and saddened me. According to them, a “terrorist”, as they used the term growing up, was an unruly child, one whose actions were unpredictable and wild. Today, kids as young as grade school know a “terrorist” to be someone who has the intent to scare and potentially harm a large group of people. Frankly, the events of 9/11 had to change the definition of terrorism and, subsequently, the rules and regulations that are linked to this concept.

I would argue that we are in a theatre of war whenever we are attacked in connection with an act of terror. The USS Cole attack was undeniably an terrorist attack, one designed to be targeted directly at some of our sailors stationed abroad. Although the President and Congress had not specifically declared a war, in my mind there is no question that attacking a US military ship with a bomb constitutes an act of war. It is for this reason that I disagree with the defense and their arguments that the military commission is inappropriate because it did not occur in a time of war.

The second point that struck me was the assertion that allowing this trial to be held in a military commission would put our own soldiers at risk for trials abroad. One of the greatest qualities of our nation is that we want to treat everyone in a dignified and respectful manner. We are cognizant of the consequences of our actions and want to do our best to secure our soldiers’ safety and security. However, what fails to be mentioned is that not all countries are following the American example. If an American was captured by al Qaeda, the American would not receive increased protection because if his nationality. Rather, the chances that he will be treated with brutality are immensely high.

In their briefing, the defense council described some instances during the second world war and the reign of Hitler. At that time, the American military made sure that German prisoners were treated to the same rations as American soldiers. General Dwight D. Eisenhower said that he did “not want to give Hitler the excuse or justification for treating our soldiers more harshly than he was already doing.” Sadly, the circumstances are not comparable to the situation that is at hand today. Our current conflict is not against a unified armed force that is led by a single commander; we are against individuals who are united under a common enemy, America.

A military commission is a way to let these individuals, who have been accused of war crimes against the United States and our compatriots, a chance to be treated with a level of respect and humanity that would likely not be reciprocated if the roles were reversed. Trying these cases in American federal courts would hinder the administrations of justice because the nature of the beast of war and terror. A military commission affords these individuals a fair trial, complete with zealous advocacy and opportunity. It is the correct forum for this case and is sufficient in ensuring that justice will be administered.

A Student’s Perspective on the USS Cole Trial- Kristi McMains-May 26, 2014

As I was researching the background to this case, it occurred to me that this attack must have triggered a switch in the mentality of our armed forces. America has always been seen as a dynamic military world power; our nation would be called in and the battles would ensue, almost all of which ended in our victory. We, America, were the party that always went to the battlefield, rather than the party having to defend an attack on the home front.

The USS Cole bombing was one of the most shocking times that our military has been directly targeted and attacked successfully. September 11 brought the realization that American citizens may have a risk on our own soil, but the USS Cole attack brought the realization that our military is now at a heightened risk when they are abroad.

The USS Cole bombing occurred on October 12, 2000 in Yemen. The Cole was fueling when the sailors saw a small boat approaching, the attackers were waving to the soldiers as the boat pulled up next to the Cole, and subsequently exploded from the hundreds of pounds of explosives that were packed into the tiny fishing vessel.

That attack killed 17 sailors and wounded 39 more. It tore a 40 by 40 foot hole into the side of this $1 billion ship. Al Qaeda has hailed the attack on the USS Cole as one of its greatest military strikes. Just 11 months before 9/11, we just started to experience war on the home front unlike any we had seen before.

I am especially drawn to this case. When I worked in Washington, D.C., I was fortunate enough to experience one of the most touching and impactful moments of my entire life.

When our service men and women return from battle, they are typically welcomed home with family members holding signs, arms wide with hugs, a feeling of honor, pride and respect is ever present. However, many of our men and women who are deployed are unable to return with the rest of their troop and experience the overwhelming welcome because they were injured and too ill or hurt to travel back with the rest of their unit. These men and women are honored at the Pentagon with a Wounded Warrior march.

I can still remember the feelings and emotions that came over me when I watched these men and women experience their long, overdue welcome home in the halls of the Pentagon. Every single person employed at the Pentagon, from the janitor to the highest ranking general, lined the hallways and clapped and cheered for these heroes. Some were outwardly hurt, missing limbs, in wheelchairs, burns, but some of the individuals’ wounds were not accessible to the naked eye. I have never felt such pride, respect, and admiration for our armed forces as I did during that ceremony. This moment has impacted me tremendously and to this day I will always try to thank a service man or woman for the enormous sacrifice that they have made for this Nation, and as a result, for me.

It is for this reason that I am drawn to the USS Cole case. Our men and women on that battleship had no idea that their safety would be put at risk by suicide bombers. The bomb hit right outside the mess hall, which led to the high number of lives lost. It took 14 months and $250 million to repair the damage that this one, tiny fishing boat did to the USS Cole, one of the most technologically advanced military vessels in the world.

A Student’s Perspective on the USS Cole Trial – Kristi McMains- May 25, 2014

I am delighted to be chosen to travel to Ft. Meade, Maryland in order to observe the hearing of Al Nashiri and his involvement in the bombing of the USS Cole. This is truly a once in a lifetime experience and as a third-year law student who has an equal fascination with law, policy, national security and human rights, there is no greater opportunity than this.

I remember sitting in my sixth grade math classroom after a break in ISTEP testing on Tuesday, September 11, 2001. Our school guidance counselor came in, gestured for our teacher and proceeded to have a heated whispered conversation. Our teacher then told us that the school was canceling ISTEP for the day, and started showing us a funny video online. We were all confused. A few minutes later, I was in the hallway when one of the social studies teachers ran by with tears in her eyes. It was not until the lunch period when a fellow student announced to our table that, “The United States had just been bombed.” I can still remember the feeling that washed over me at that moment. I felt as though everything slowed down, and a panic came upon me like none I had experienced before. I eventually learned the truth about what happened that day. In fact, sealed up in a shoebox in my parents attic, I took every copy of any newspaper I could find from September 12, 2001, and taped it in the box with a sign on it that says, “Not to be opened until 2021.”

That day changed my life. It changed the nature of our country as a whole. America had arguably not been attacked on home soil since near the birth of our nation. Pearl Harbor was the only other attack that was similar to this one, but it happened far off our coast, not in one of the biggest cities in our nation. One of the main reasons that I chose to attend law school is the fascination that I have always held for the law and our nation’s security. After 9/11, I started becoming more attuned to the emotions that other countries and citizens of those countries had towards America. I became fascinated with everything relating to national security and the law, whether it be news stories, novels, or speaking with everyone and anyone I could who had different experiences dealing in this unique brand of international affairs.

I had the wonderful opportunity to work out in Washington, D.C. for a summer as a Congressional aide to our now Indiana Governor Mike Pence. I learned to give tours of the Capitol where I talked about the plaque that sits on the far end of the rotunda honoring Flight 93 and the crewmembers and passengers who stepped up and saved the Capitol from being struck by the last plane. I toured the Pentagon and saw exactly where the plane struck the ground, bounced up, then slid into the side of the building where some of our nation’s most protected meetings occur. One thing that particularly struck me about the Pentagon was that the section where the plane hit was under construction; the number of people in that section was a fraction of the normal workforce and from that, lives were spared. Through my studies of aviation law I was able to learn about that day from the men and women working in the air traffic control tower here in Indianapolis. Our city became one of the main hubs for grounding planes, and these individuals had the task of grounding the second largest number of planes of any airport in the nation. They spoke of how they were frantically searching the radars for the hijacked planes and how eerie it was when their radar only showed around twelve planes that were strictly being monitored or flown by members of our armed forces.

That day helped solidify my future in law. The American justice system fascinates me in the sense that even these men, who have been recommended for prosecution for war crimes, get fair and honest trials. The USS Cole attack predated 9/11 by only eleven months; it was the first real glimpse into the mass casualty mindset that these individuals have against Americans and our way of life. Having the unique opportunity to observe the trial of the alleged mastermind of the attack will be enlightening and exciting.

I am also eager to observe the military commission process and how it differs from litigation in the US courts. I currently work at the trial law firm of Cline Farrell Christie & Lee and have already learned an incredible amount about our trial system here at home. I hope to highlight some of the commonalities and differences amongst the two in my postings and also explore why and if the military commission is appropriate for the issue at hand.

I leave in two days for my trip to Maryland. I have packed my bags, loaded my iPad with the incredible briefing binder that was put together by the leaders of this program, and am looking forward to my time at the base!