Author: lukpurdy

Question of Undue Influence

Front entrance of the Post Theater at Ft. Meade, Maryland, where Military Commission hearings are fed live from Guantanamo Bay, Cuba.

Today, the court spent a third consecutive day questioning witnesses regarding the female guard issue. Colonel David Eugene Heath, the current overseer of the detention center at Guantanamo Bay. Defense focused heavily on Col. Heath’s understanding of the Geneva Conventions, as well as his understanding and application of the detainees’ status as prisoners of war.

Me in front of the Post Theater, just outside the room where Military Commission hearings are aired.

Defense council for one of the defendants also brought up the fact that a complaint had been lodged against the judge for undue influence by military officials. Judge Pohl quickly pointed out that he had refused to even look at the contents of the complaint. Defense council argued that even if there had been no undue influence, there was still an appearance of undue influence, which obliged the prosecution to provide defense council with the contents of that complain. The prosecution responded that “apparent undue influence” is determined through an objective standard of analysis–i.e. whether a reasonable person would deem that there had been apparent undue influence. Since this was not the case, argued the prosecution, the complaint need not be handed over to the defense.

I experienced a kind of Kafkaesque disorientation as I contemplated the microscopic issues being dealt with today when compared with the “Gorgon’s Knot” of a case being sorted out bit by bit at Guantanamo. I was particularly struck by the lack of timeliness evident at the tribunal. International Law grants the accused the right to a “speedy trial”–a name one could hardly give to these hearings with a straight face.

By: Luke Purdy, 11 December 2015, 9/11 Hearings Guantanamo Bay (viewed at Ft. Meade in Maryland)

Hearings on the Use of Female Guards at Detention Center

I arrived at Ft. Meade’s theater a few minutes before the day’s Military Commission hearings were set to begin. Guantanamo Bay’s courtroom broadcasts a live feed of the hearings to a number of bases throughout the continental United States, including Ft. Meade. Hearings were set to begin yesterday, but they were delayed by a day, as the judge decided to spend monday discussing evidentiary matters with council.

Sign for the Post Theater, where live feed of the Military Commission Hearings is Shown. The theater also shows regular hollywood films at the base.

As the session began, the judge had a brief colloquy with the five detainees in the room. After reading their rights, the judge asked them each in turn if they understood what had been said. The detainees all replied in the affirmative, though one of the defendants complained about his female defense council, claiming that she was not representing his interests.

After the judge finished the colloquy with the defendants, the remainder of the day’s session was spent in direct and cross-examination of a witness in the case, who for confidentiality purposes when by the name “Lieutenant Colonel (Lt. Col)”, relating to her use of female guards during her oversight of the detention facility where the defendants were being kept.

Emotions were fairly heated during these exchanges. The questioning related to a motion that would make permanent an order by the military commissions judge that would prevent female guards from having direct contact with detainees who, for religious reasons, are opposed to direct contact with un-related women. Defense council questioned the Lt. Col. about her awareness of the rules concerning cultural awareness, as well as her reasons for selecting the guards who would ultimately do searches of the prisoners’ rooms. The prosecution sought to emphasize the Lt. Col’s dedication to following Military Commission rules in a practical and efficient manner.

Throughout the hearing, trial participants voiced concerns about confidentiality. Prior to questioning of the witness, the military judge emphasized that today’s hearings would only focus on nonconfidential materials, and that feed would be cut off to the continental locations (such as Ft. Meade) if council or the witness mentioned any sealed information. As a result, there were numerous times throughout the hearing that the witness would hesitate to answer a question due to confidentiality concerns.

Council for the prosecution and defense spend both the morning and afternoon sessions questioning the Lt. Col. about her oversight of the detention center that she oversaw when female guards were given positions that put them in close contact with the detainees. Depending on whether the judge agrees, she may be brought back for another round of examination in the coming days.

By: Luke Purdy, 9 December 2015, 9/11 Hearings, Guantanamo Bay

Travel to Ft. Meade for Hearings on Alleged 9/11 Architect

Main Gate of Ft. Meade, where I am scheduled to attend hearings this coming week.

In a few days, I will travel to Ft. Meade in Maryland to observe, analyze, and report on the upcoming hearings for Khalid Shaik Mohammad and 4 other alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. The U.S. Government has alleged that Mohammed was the “principal architect of the 9/11 attacks”, as reported by the 9/11 commission report. While at Ft. Meade, I will be viewing a secure live feed that links directly to Guantanamo Bay, Cuba, where the defendants have been detained since at least 2006.

My role with the MCOP

I have been participating in the IU McKinney School of Law’s Military Commission Observation Project (MCOP) program for over a year now. I have had the opportunity to research on our Guantanamo Bay Fair Tri al Manual, which observers and others can use to help them ascertain whether the rights and interests of all stakeholders have been afforded to them. The Manual examines rights and interests not only of the defendants, but also of the prosecution, victims and their families, the media, observers / monitors, and others.

I have also registered for multiple trips to Guantanamo Bay to view hearings live in the courtroom. However, all of those sets of hearings were cancelled in the days prior my departure. The repeated delays have given me a sense of the monumentally sluggish pace at which these trials move.

Who am I?

I am a 3L law student at IU McKinney, and am set to graduate in December 2015. Until recently I was a human rights intern with the Universal Rights Group, which is a Human Rights think tank in Geneva, Switzerland. My ongoing interest in the Guantanamo Bay is driven in large part by my passion for human rights work, combined with my ongoing interest in criminal law.

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Luke Purdy in front of the UN Building (Palais des Nations) in Geneva, Switzerland (Fall 2015).

Next week’s hearings

I am particularly excited about the fact that judge is scheduled to engage in a colloquy with the defendants on Monday morning the 7th, which will give me a chance to view and report on the spoken words of the accused.

I am also interested to hear evidence/testimony on the defendant’s request to prevent female guards from having direct contact with the defendant for religious reasons.

The hearings are scheduled to begin on Monday, December 7 and run until Friday the 11th. I will continue to blog about my observations at the base. I am expected to be joined at Ft. Meade by IU Affiliates Bob Masbaum (a J.D. graduate) and Professor George Edwards (founder of the Military Commission Observation Project). IU McKinney Professor Catherine Lemmer, who is an international librarian, is scheduled to travel to Guantanamo Bay this weekend to attend these 9/11 hearings live.

By: Luke Purdy, 3L, Indiana University Robert H. McKinney School of Law

Gearing Up For Gitmo

Luke near a Tsunami Hazard Site in American Samoa, while on a 2014 summer human rights internship.

My name is Luke Purdy, and I am an almost-graduated 3L law student from Indiana University Robert H. McKinney School of Law. I am scheduled to fly to Guantanamo Bay, Cuba on 29 August to observe the Military Commission’s proceedings against Khalid Sheikh Mohammed, which have been ongoing since 2003. I have also been scheduled to attend previous hearings at Guantanamo Bay, but these hearings (one of which was for Al-nashiri, accused of the 2000 bombing of the USS Cole) were cancelled at the last minute.

Background

I first heard about IU McKinney’s Gitmo Observer program while I was interning in Melbourne, Australia for the law school’s Program in International Human Rights Law. During that time I worked on the defense of an alleged Serbian war criminal. This experience elevated my interest in the world of military law, specifically when it impacted the rights of criminal defendants. Soon after returning from my internship in Australia, I dove into more classes relating to international human rights. In one class, International Criminal Law, I was able to contribute to a Fair Trial Manual being drafted by the Program in International Human Rights Law for use by observers at Military Commission proceedings like the one I am scheduled to attend at the end of this month. As many prior observers have done, I will be bringing copies of these manuals for observers to use during the upcoming trial against Khalid Sheikh Mohammad.

Photograph of Khalid Shaikh Mohammad, the accused war criminal whose hearings I am scheduled to attend.

The Charges

The defendant in this trial, Khalid Sheik Mohammad, is accused of participating in numerous terrorists plots against the United States, including the 9/11 attacks on the World Trade Center. Khalid confessed to many of these crimes. However, some have criticized the procedures used on Khalid to elicit these confessions, which included waterboarding. Ultimately, if convicted of war crimes, Khalid Sheik Mohammad could face the death penalty.

My Role

In line with the goals the Military Commission Observation Project, my task as an MCOP representative is to attend, observe, analyze, critique, and report on the Military Commissions. Specifically, I am interested in learning about the defense team’s access to discovery materials, and whether rules of confidentiality interfere with the defense’s ability to defend their client fairly. I would also like to see how classified information is used (if at all) by the prosecution, and get a sense of how “reasonable” the speed of the trial is, and whether proceedings are being carried out without undue delay.

(Luke Purdy, Indianapolis, 10 August 2015)

Cancellation of October Hearings and Related Fair Trial Concerns (Luke Purdy)

On September 29 I was notified by the Pentagon that the October hearings for Al Nashiri had been cancelled. Consequently, I was unable to travel to Guantanamo Bay for the hearings scheduled between October 7-10. The Pentagon did not provide an explanation for the cancellation. Al Nashiri’s next court hearing at Guantanamo Bay is not scheduled until the week of November 3rd of this year.

The delay in the case against Al Nashiri raises potential concerns for the defendant’s right to trial without undue delay, as set forth in the International Covenant on Civil and Political Rights (ICCPR), as well as other international human rights documents like the Body of Principles on Detention, and the International Criminal Court Statute. The ICCPR, in Article 14(3)(c), guarantees all persons charged of criminal offenses the right “to be tried without undue delay.” In addition, Article 9(3) states that

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

One should note that Al Nashiri has been detained since November 2002 for his alleged role in the 2000 bombing of the USS Cole, and that charges against him have been pending since 2008, though they were dropped dropped for three years until the Government reinstated them in 2011, the defendant remaining in custody throughout the intervening period. (more…)

Upcoming Trip to Guantanamo Bay for Al Nashiri hearings (Luke Purdy)

On the right, the hole in the side of the U.S.S. Cole that al Nashiri (left) is accused to have planned the bombing of. The U.S. ship was docked in a port in Yemen during the October 2000 attack that killed 17 U.S. sailors and wounded over 30.

During the first week of October 2014, I plan to travel to Guantanamo Bay, Cuba as a representative of the U.S. Military Commission Observation Project (MCOP), which is also known as the Gitmo Observer. While at GTMO, I plan to observe military proceedings in a capital case against Abd al-Rahim al Nashiri, whom the United States Government has accused of planning the bombing of the USS Cole in October 2000, which resulted in the deaths of 17 U.S. sailors.

The U.S. Military Commission Observation Project (MCOP or Gitmo Observer) was established by the IU McKinney Program in International Human Rights Law. MCOP was granted “NGO Observer Status” by the Pentagon in 2014. This means that MCOP representatives may travel to Guantanamo Bay (or view a secure video link at Fort Meade in Maryland) to observe trial procedures at GTMO that are otherwise inaccessible to the public.

As an NGO Observer, MCOP seeks to ensure that fair trial rights are afforded to all stakeholders in the observed proceedings. These stakeholders include the defendant(s), victims and family members of, and the prosecution. Representatives of MCOP will observe, document, critique, and analyze these proceedings with the help of a Fair Trials Manual and Checklist, which can be accessed here.

Photo of me taken during the 2014 summer in Pago Pago, American Samoa, during my IU McKinney Law International Human Rights Law internsip.

My Interest in the Guantanamo Bay Military Commissions

My interest in MCOP emerged from a variety of sources, including an overseas international human rights internship, classes in law school, and a growing desire to get more international human rights work experience, specifically in the context of military tribunals. (more…)