Below are three articles by or contributed to by observers representing other NGOs from the February 22nd-26th, 2016 pre-trial hearings in the case against the alleged masterminds of the 9/11 attacks. These articles were notwritten or contributed to by representatives of Indiana University McKinney School of Law’s Program in International Human Rights Law or our Military Commission Observation Project. They were written by Observers who were part of various non-Indiana groups at Guantanamo Bay.
The other NGO Observers and I met with several members of the defense team for Mr. Hawasawi, defendant in Guantanamo’s 9/11 case, at around 5:30 pm Thursday, 25 February 2016. This was shortly after the court hearings let out for the day. Observers are not permitted to attend closed hearings.
Rather than summarize solely what we were told from Team Hawasawi, I will take this opportunity to provide a brief summary of several points we heard again and again when we spoke with defense counsel at the barbecue earlier this week, at the meeting this evening with Team Hawasawi and in court over the past week. Following is a collection of my impressions and is not a direct quotation of any single member of the defense counsel.
Classification and National Security Issues Concerning the Dissemination of Classified Information vs. The Government’s Desire For and Constitutional Requirements For Transparency, a Full, Fair and Transparent Discovery Process :
Security clearance issues and access to information has been a recurring theme
throughout this week. The prosecution alleges that they are seeking to protect classified information which if released could damage national security, while the defense claims that the prosecution is hiding the ball by unnecessarily redacting documents, not doing all they can to assist the defense in obtaining security clearances (and actively standing in their way in some cases) and the defense alleges that the prosecutions claims of protecting national security are a impenetrable blanket excuse to not provide near the items requested in discovery that the defense claims they are entitled to. The prosecution argued generally against the judge being involved as the arbiter of disputes regarding the decision to or to not release classified documents to the defense and asserted they are turning over documents as fast as they can.
Each defense team has between 15-16 persons on that team at any given time. However, we learned via oral argument in court that each team is limited to 10 person with the clearance required to view many classified documents at any given time. During the hearings this week all of the teams had a clearance issue with one or more of their team members access classified evidence and there were several members of the defense teams that were not allowed in the courtroom (they sat in the gallery with the observers, victim’s family members and others without clearance). The defense argues that delays in processing classification reviews of current and future team members are preventing them from providing adequate representation and that the prosecutions effectively has veto power on what evidence they believe the defense should be entitled to. Furthermore, the defense argues that the prosecution has shown that when it serves their interests, they are able to obtain security clearances for defense team members in a very short amount of time (a clearance was obtained Thursday in 29 minutes with help of a phone call from Chief Prosecutor General Martins after a defense team member’s lack of clearance would have delayed the hearing).
According to the defense, the prosecution’s redactions and refusal to provide documents based on national security concerns are an impenetrable blanket excuse to not provide discovery. The prosecution has argued that the judge is not equipped to make classification decisions and would, in some cases, cut the judge out of objections to over-classification in the discovery process (this would potentially allow the prosecution to be the final arbiter in some discovery issues and provide a fraction of the documents requested).
Chief Prosecutor Brig. General Mark Martins
For the prosecutions part on nearly all of these issues, they argued that they are satisfying their duties under the discovery rules while taking the steps they are required to take to protect classified information that, if released inappropriately to the wrong people, could damage national security.
Issues of security and transparency arose several times this week regarding transcripts of public hearings that were redacted after the fact to remove some of the statements that were publicly made, but were later decided to contain classified information. Members of the Press and the defense moved in AE 900 on Monday for the court to release the full unredacted transcript on grounds that not doing so violated the 1st Amendment and 6th amendment. Tuesday, the day after the defense and members of the press made this argument, the Military Commission’s website failed to post the unofficial, unauthenticated transcript that is normally posted the same day of the hearings here. The next day the prosecution moved to seal several exhibits discussed and the defense pre-preemptively objected to an after the fact redaction. Mr. Connell, learned counsel for al Baluchi objected immediately. I have not heard yet whether members of the press or the defense has filed any motions regarding this issue, but unless it was worked out in the closed session on Thursday, I expect another motion along the same lines of AE 900 will be filed in the upcoming weeks regarding this new after the expected retroactive redaction.
Chief Judge Pohl originally presided over both the al Nashiri case and the 9/11 case.
A New Judicial System: Several defense members mentioned that there are inherent challenges in the military commissions system because it is such a new judicial system and because it was created after the crimes took place and after the accused were captured. They also mentioned that, from the defendant’s perspective, the Military Commission system appears to be a judicial system created and designed specifically to lead to their conviction and eventual execution (rather than an independent arbiter to reach a determination of guilt or innocence and, if guilt is found, to mete out an appropriate punishment).
Ideal Choice of Law/Forum? When asked, in a perfect world, what forum and/or choice of law would the members of the defense choose for their defendants, none of them suggested the military commissions or in Guantanamo Bay. Their answers were generally that they would choose a U.S. Federal Court on the east coast in the USA (New York and the Washington D C. area were both brought up, but a couple of the attorneys chose a military court in the USA (at Quantico and in New York). One of the attorneys added that, in that ideal world, they would want a separate trial for their defendant divorced from the other four current defendants.
Ramzi Bin al Shibh, a defendant in the 9/11 case, testified Wednesday about conditions of his detention at Guantanamo Bay, Cuba
Conditions of Confinement: Defendants have asked their attorneys to seek relief that will address their current condition of detainment and health. In some cases, the attorneys suggested these were their primary concerns. For example, defendants sought the return of their laptop computers, none of the defendants want to have female guards touch them, the defendants and defense attorneys would like to have more freedom to transmit legal and non-legal mail to and from their client and to third parties, Mr. Hawasawi is in need of surgery & medical care, Mr. Bin al Shibh wishes the judge to stop alleged vibrations and noises in his cell and Mr. al Baluchi would like to have post-torture/PTSD counseling.
Ethical Obligations: The attorneys each have different ethical obligations depending on the agency that is licensing them. For example, learned counsel for Attash, Cheryl Bormann, is licensed by the Illinois State Bar Association and so her ethical rules are different than her co-counsel Army Maj. Matthew Seeger who is bound by the the Army’s Rules of Professional Conduct for Lawyers.
When Will it End?: Estimates of when this case would go to trial varied from 5 years to not in this decade to not anytime soon. No one seemed to think this case would be moving to trial in a speedy fashion (though the right to a speedy trial is expressly not awarded to these defendants via the Military Commissions Act of 2009).
On a personal note, I fly from Guantanamo Bay to Andrews Air Force Base tomorrow morning early and I will drive back to Indianapolis soon thereafter. I hope to post a few more times in the next week or so.
Allow me to take this opportunity to thank the Program in International Human Rights Law’s Military Commission Observation Project at Robert H. Kinney School of Law and Professor George Edwards for allowing me to spend the last week viewing the 9/11 hearings at Guantanamo Bay, Cuba. Over the past week I was able to explore many of the issues surrounding the Military Commissions, the Guantanamo Bay facility from the perspective of an observer and to report to you my findings. I found the experience engaging and though-provoking. I am quite happy that I was selected and that I agreed to participate.
By Matt Kubal, JD, Indiana University McKinney School of Law
The view of the bay in front of the Jerk House, coffee shop and the Tiki Bar.
Today the court in the 9/11 case was in closed session all day to discuss confidential information. We were not allowed to attend the hearing and instead were left spend the day at our own leisure (with our awesome coast guard escorts to take us around the island). I took advantage of the opportunity to sleep in until a little past 8am and then joined several of my fellow observers to grab a coffee at the shop known as the “Starbucks” (the shop has another name, but everyone seems to call it Starbucks) right by the Jerk House. A few nights ago I had the best jerk chicken I have ever had outside of Jamaica at the Jerk House.
Relaxing on Windmill Beach near the now closed Camp Iguana
It was time for my first visit to the beach for the week and so off we went to Windmill Beach, what I was told was the most popular beach on the base. It’s a rocky shore and there’s a bit of coral to dodge when entering the ocean, but the swimming was refreshing with small waves breaking near the shore and lounge chairs for free use. We also saw a few groups of scuba divers coming in and we were told the base offers scuba certification. I relaxed by the water below the former detention camp and read a bit (my book club is reading Jared Diamond’s “Collapse”; his theories seem a bit speculative to me).
Nearby Windmill Beach was Camp Iguana. The camp’s small size was made up by it’s prominent location overlooking the Caribbean and Windmill Beach. If it wasn’t a detainment facility, it would be a lovely spot for a hotel or spa. The camp formerly held three child soldiers and later some detainees who were classified as no longer enemy combatants. It felt a little odd swimming and relaxing below a detainment facility (even a closed one), but such is the way of Guantanamo Bay: one night you pick up a Big Mac at McDonald’s and listen for a minute to the school’s band playing marches in the McDonald’s playground before you go to see “The Big Short” at the huge outdoor theater. While a few hours earlier you heard testimony from a detainee who alleges he is regularly and professionally tortured by some of the same men and women who are likely eating next to you at that same McDonald’s and sitting next to you at the movie. I’m not making any judgement as to the veracity of Bin al Shibh’s claims, but the contrast between the very friendly, pleasant and safe feeling that one has on the base perhaps belies the great seriousness in that there are numerous claims in the media and from NGOs that torture did take place here not terribly long ago and also that America’s most vilified and allegedly most dangerous enemies are detained here.
On a lighter note, I apparently did a poor job of applying sun screen as my splotchy sun burns are so bad, my roommates asked me if I have a skin disease. We made our way from the beach to three spots for souvenirs on the island: Radio GTMO, the post office and “Personalized Services,” a little gift shop by the Navy Exchange store.
Holding a copy of “The Doors: Setting the Record Straight” from Radio GTMO’s vinyl collection with part of the collection visible in the background
We made our way to Radio GTMO first. A friendly radio engineer service member took us on a tour of the small station. There is a green room, broadcasting room, CD room, server/broadcasting room and a storage room where, tucked away in a corner, is the third largest vinyl collection at any US military base in the world. The vinyls are hidden away for a reason; the radio station employees, who recognize their value and play them regularly (including for throwback Thursdays), try to keep the vinyl’s in a place that is less prominent in the station so they don’t get picked for disposal to free up space. Carol Rosenburg wrote an interesting story about the attempted destruction of the 20,000 or so records. I picked up a few souvenirs including a Fidel Castro Bobblehead with the Radio GTMO logo on the base: “Rockin’ in Fidel’s Backyard.” The visit to the small post office and the Personalized Services store were less exciting, but I was able to pick up a couple souvenirs for friends and family. We had lunch at Subway and
I am very happy with my Fidel bobblehead.
I spent the rest of the afternoon in the NGO lounge catching up with the outside world, preparing posts for this blog and killing time until our meeting with the Hawasawi defense team after the closed hearing in the 9/11 case let out.
By Matt Kubal, JD, Indiana University McKinney School of Law
Wow, What a morning. I just witnessed Ramzi Bin al Shibh, one of the five defendants on trial for the 9/11 attacks, testify on direct (questioned by his learned counsel, Mr. James Harrington. He was cross examined by Mr.Clayton G. Trivett Jr., a reserve navy lieutenant commander representing the prosecution and re-direct will be after lunch. The testimony is regarding bin al Shibh’s motion regarding complaints of vibrations and loud noises/hammering in his cell preventing him from sleeping, writing, etc. The judge had previously ordered any vibrations and loud noises to be stopped. The motion, AE 152LL, is a motion for the government to show cause (arguing that the previous order to stop the noises/vibration was not followed).
A few interesting notes from Bin al Shibh’s testimony in this morning’s session:
– Prior to testimony, the Government requested the judge advise Bin al Shibh regarding the protective order protected the release of classified information. The judge denied the request saying that Bin al Shibh is not in a position to determine what material is classified. Harrington responded that he believes he has a way to avoid classified material. He starts by using the publicly available (though heavily redacted) torture report as a guide (references page 75 where the report discusses Bin al Shibh).
– Ramzi took an affirmation (like an oath) over a Koran and testified from the witness stand and both testified and received questions entirely in English. He testified without shackles (the judge pointed this out yesterday and today), but with two security officers facing Bin al Shibh (nearby and to his left).
– Trivett cross examined Bin al Shibh. The consensus amongst the observers were that he had a very tough time controlling Bin al Shibh as Bin al Shibh was often allowed to explain away potentially damaging prior statements.
– At one point Trivett asked Ramzi if he remembers his dreams. Ramzi replied affirmatively. Trivett followed with: “Do you ever dream of the people killed on 9/11?” Defense objected and the objection was sustained immediately.
The red light, just to the right and slightly below the judge was activated today indicating classified information was revealed in the courtroom
– The flashing red hockey light in the courtroom indicating classified and/or protected information had been revealed was activated right as Bin al Shibh, who was describing his detention facility, started saying “when you come into camp…” (we watch live behind sound proof two way glass, but hear on a 40 second delay, so we don’t hear anything classified/privileged). After the light turned on the audio cut off, a standby screen was put up on the monitors (monitors are available that are synced with the 40 second delay) and we were removed from the hearings. Everyone in the courtroom remained in the courtroom and I could see the judge speaking (it looked like he was speaking with Bin al Shibh). After 3-4 minutes, we were allowed back in to the gallery to continue viewing the proceedings.
– At one point Bin al Shibh reminded his attorney to object when the Government Prosecutor asked Bin al Shibh if he was a warrior. The judge advised Bin al Shibh that he had to answer the question unless his attorney, Mr. Harrington, objected. Mr. Harrington then objected and the objection was sustained. This was
– Seemingly out of the blue, the judge asked a follow-up question in the middl e of Mr. Trivett’s cross. He asked if Bin al Shibh felt the vibrations in the room where he and his attorneys meet. Bin al Shibh said yes and then clarified that he felt them when the attorneys are gone.
– At one point Bin al Shibh looked at Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks and said, “Before somebody else was captured I was something special,” he also said. “They tried these things until now.” Bin al Shibh was allegedly a potential hijacker, but when he could not gain access to the U.S. he instead served in a support role.
Exhibits From February 23rd Sealed
I wrote this last post late last night. It turns out that the prediction I made that the transcript might be redacted was true. The hearing started today with the government requesting that the court seal exhibits 112L, 112K and 112M. These exhibits were related to a motion to compel discovery by the defense. Off of memory, my guess as to what the Government would like to protect were exhibits presented by Mr. Connell, Ali Abd Al-Aziz Ali’s learned counsel, related to AE 397 motion to consolidate and AE 112 motion to compel discovery.
To summarize Connell’s testimony yesterday, he used several exhibits to argue that the defense needed to be able to see what was behind redacted sections from several documents. In response to a prior claim by the government that his requests were overbroad and not specific, Connell numbered each of 150 redactions (made by a FOIA officer) in a long document and made arguments as to why each section might be important based on what he guessed might be behind it. The judge eventually cut him off and advised that he gets the point: that Connell is able to provide a specific explanation why he wants each redaction removed. Connell also requested that the court order General Baker, the court’s ethics and compliance officer, to be present at the hearing tomorrow (the judge denied the request).
Regarding the government’s request to seal the three exhibits, the judge ordered the exhibits temporarily sealed pending review in a closed hearing. As of 1 pm on February 24th, the unofficial, unauthenticated transcript is not available either.
If the court orders the documents permanently sealed and/or the transcript is redacted, we will likely have motions submitted making a similar 1st amendment argument made in the future regarding yesterday’s transcript as we had this past Monday when Mr. David Schulz, independent attorney hired by members of the press to argue on their behalf, argued that a redaction of a transcript of a public hearing from last October was a violation of the 1st Amendment Freedom of Speech. Indeed, Mr. Connell of the defense for Mr. Ali Abd al-Zziz Ali, already objected prospectively on this issue. On Monday, the defense also argued that the after the fact redaction of a public Military Commission hearing was a violation of the 6th Amendment Right to a Public Trial.
The Way Forward
Finally, the judge ended by describing the way ahead:
1. re-direct of Bin al Shibh by his defense attorney, Mr. Harrington this afternoon
2. AE 018Y and AE 01W (regarding detainee letters) after that until around 3pm
3. At ~3pm the court will go into a closed session to consider the Government’s motion to seal AE 112 (see above)
4. Friday we will continue AE 018 (11 motions in the series that are up for consideration this week) and then move on tho AE 254 if there is time.
Lunch is over and I am heading back to the courtroom for a 1:30pm start.
Update: Re-direct by Mr. Harrington was short and relatively uneventful. After the testimony, the judge advised that if the defense wishes to call the other two witnesses (originally Harrington had requested to call three deainees as witnesses) he may do so at a later date. Allowing Harrington to call only al-Shibh was Pohl’s stated plan prior to the hearing today.
Following al-Shibh’s testimony, the court returned to AE 018Y and AE 018W regarding letters from the defendants. The issue discussed is what the procedures should be for the defendants to send non-legal/legal and classified/non-classified letters (and each combination of those four categories). Testimony ended with the judge seeming to narrow the issue as to how a legal letter is define and requested that the government provide a more specific request as to what relief they want.
At shortly after 3 pm, the gallery was cleared and the defendants removed for a closed hearing to, among other topics, consider whether or not to discuss the governments emergency motion to seal several exhibits that were presented yesterday.
Tomorrow is a closed session. My next and last day of hearings this week will be on Friday.
By Matt Kubal, JD, Indiana University McKinney School of Law
The Gold Hill Galley is a great deal at ~$3 for all-you-can-eat breakfast
Thank you to Professor George Edwards who had the wherewithal to leave an electric blanket at the NGO lounge for observers to use. The tents are kept very cold and I think I was the only person in my tent who slept comfortably last night. This morning most of us left for breakfast at 7:30 AM. Our driver Carl and our escort Mark told us last night that the Gold Hill Galley is by far the best breakfast option on the island and they were not kidding. I had a big plate of bacon, biscuits and gravy, a few hard boiled eggs and fresh fruit (enough that I skipped lunch today). At about $3 for all-you-can-eat, it’s a very good deal as well.
After breakfast our driver Carl took us on a tour of the island. Around the Navy Exchange we saw the less-exciting familiar arches of a McDonald’s and later on a Pizza Hut. A Taco Bell and a KFC were formerly on the base as well, but both are no longer open. We passed a variety of recreation facilities including the Lateral Hazard golf course (which is where I assume that MCOP observer Paul Schilling golfed during his visit last week), a paintball range, a bowling alley, a 24 hour fitness facility, an outdoor movie theater showing first-run movies (schedule available here; we made tentative plans to see “The Big Short” on Wednesday night), an Irish bar, a Jamaican restaurant and a marina where we were told we could rent kayaks and anyone with a captain’s license can rent boats to take out on the bay.
Matt Kubal in front of Camp X-Ray, the detainment facility where detainees were held when they first arrived at GITMO in 2002
We also had the unique opportunity to see two pieces of United States history from afar: Camp X-Ray and a facility where the some of the detainees are currently held. Camp X-Ray is the temporary detainment facility that inspired the independent drama film of the same name and a full-scale replica built in Manchester, England. Camp X-Ray is where the first detainees transferred to Guantanamo Bay in 2002 were first held. It was originally built in 1990 to temporarily house some Cuban asylum seekers who had crossed the minefield surrounding the Guantanamo Bay facility, but were denied asylum for one reason or another. Now the facility looks spartan and overgrown. Compared to the current detainment facility, Camp X-ray offered a very different experience for the prisoners and guards as the facility’s open design meant that detainees and guards could communicate freely whereas the current facility is closer in design to a maximum security facility where detainees are much more isolated from guards and their fellow detainees.
While we were able to take photos of Camp X-Ray and see it from a distance of roughly 200 yards, we were very far away from the current detainment facility on top of a ridge above the base. We were absolutely prohibited from taking photos. Of the 91 detainees still housed at Guantanamo Bay, some of them are accused of horrific crimes while many others have already been approved for release. As of 2010, 48 detainees held in Guantanamo Bay were designated for indefinite detention. As I looked at the facility from afar, I felt a mixture of sympathy for those held who are already cleared for release and for the guards who are tasked with the duty of guarding and maintaining the facility (a job I do not envy) and frustration that this justice system we have created to determine guilt and prosecute those accused of some of the most notorious and horrific crimes in modern history moves so slowly. I only had a moment to briefly ponder the mixed feelings I felt looking at the facility from afar before it was time for us to return to our camp and our nearby NGO lounge.
Matt Kubal in the NGO lounge reading the Guantanamo Bay Fair Trial Manual
I am typing this post from a desk in the NGO lounge. The NGO lounge is a couple of rooms in Camp Justice that are connected to the hangar where the media briefings are held. We can view press conferences via CCTV on the television here and some of the NGOs store supplies for observers to use during their time here (including the electric blanket that allowed me to sleep last night). The lounge also has desks, phones, a small refrigerator and we can access the internet here.
It is great to have a permanent space to store supplies, prepare for hearings and work to ensure that, “what happens at Guantanamo Bay, should not stay at Guantanamo Bay” (p. 29, Guantanamo Bay Fair Trial Manual, DRAFT , 20 Jan 2016, 4:15 am). Offering the NGO lounge is a good example of the U.S. government’s commitment to encourage independent observers to attend and monitor the Military Commission hearings. The Guantanamo Bay Fair Trial Manual provides an excellent description as to why the U.S. Government invites observers:
The U.S. government (the Pentagon / Department of Defense) invites NGO Observers to monitor U.S. Military Commission hearings to demonstrate to the U.S. and international community that the rules under which the Commissions operate are legal under U.S. law and international law, and that these rules are being applied in compliance with U.S. and international law. The Pentagon seeks to have NGOs examine whether the rights of all Military Commission stakeholders are being fully afforded to them, under U.S. and international law, and to confirm that these rights are being so fully afforded. (p. 29, Guantanamo Bay Fair Trial Manual, DRAFT , 20 Jan 2016, 4:15 am)
Since I arrived yesterday, I have been impressed by the resources provided to us and the access we have been provided to prosecution and defense counsel.
Day 2: A Briefing and Q&A with General Martins
Matt Kubal after the briefing with General Mark S. Martins, the Chief Prosecutor of the Military Commissions overseeing the 9/11 case
This afternoon we had the opportunity to meet with General Martins and ask him questions regarding his personal history, the 9/11 case and the Military Commissions more generally. General Mark S. Martins is the Chief Prosecutor of the Military Commissions overseeing the 9/11 case. I was impressed with the ease in which General Martins’ discussed the various motions and answered our questions about the 9/11 case and the Military Commissions. Afterwards, several of the observers commented that they were similarly impressed and understand why he was selected as Chief Prosecutor. As Paul Schilling wrote last week, General Martins, “sounds like a prosecutor.” I very much appreciate General Martins taking the time to speak with us today and staying afterwards to take photos with us.
I hope to create a separate post in the next few days with a summary of some of the main themes in the comments made by the defense yesterday at the barbecue and by General Martins and the prosecution this afternoon. I will also summarize the hearing in the 9/11 case held on February 22, 2016.
Matt Kubal in front of the Guantanamo Bay U.S. Naval Station sign by the Naval Exchange
It was a hot 87 degrees and humid when I arrived at Guantanamo Bay. I exited the plane, removed my sweater and immediately wished I could change into shorts. I made it to Guantanamo Bay and it felt good. I had little time to relish the feeling as our escort Mark corralled the observers and told us we would need to rush as the plane had arrived late. We were in danger of missing our ferry across the bay from the airport to Camp Justice. The tents we are sleeping in and the Expeditionary Legal Complex, where the Military Commissions are held, are at Camp Justice.
Our passports were checked prior to leaving the airport (yes, a passport is required to travel to Guantanamo Bay) and we were hurried to a van to drive us to the ferry. Our bags were loaded directly from the plane to a box truck and followed us onto the same ferry. The breeze on the second level of the ferry from the airport to Camp Justice felt great and we had a nice view of the Guantanamo Bay Naval Base as we approached from across the bay. About 10 vehicles and a dump truck accompanied us on the same ferry.
We were told on the way to the ferry to be very careful what pictures we take as many areas are off-limits for photography and the military police on the base are very serious about enforcing rules against photography. Mark suggested we ask him or our assigned driver prior to taking any pictures if we weren’t sure whether or not it is allowed in that area. Given that I need to provide several photos for each of these posts, that made me a little nervous, but Mark continued by giving us a short-list of places and things to not take pictures of. Over the next 24 hours we were reminded several times of various places we should not take pictures of.
Day 1: Arrival at our Tents
The tent I share with three other NGO Observers at Camp Justice
After exiting the ferry we made our way to our tents. The area that was formerly McCalla Airfield is now the part of Camp Justice that houses visiting media and observers in tents. Before arriving I knew that the tents had some amenities, but I was pleasantly surprised by all they did have. I share my tent with three other fellow observers. The tent has seven beds with twin size mattresses and wood frames, wooden floors, dressers and side tables, couches for lounging, a table and chairs, electricity, a refrigerator and air conditioning (set very cold to keep out unwanted critters).
We were given some time to unpack and settle in before we all went to obtain our badges. The badges are government property and we were told we should not take photos of them. We were also advised regarding the specific procedures of when and where we should and should not wear them. This was my first time visiting a secure facility of this nature and I I actually expected more security hoops to jump through. Given the potential risks inherent in conducting a trial of persons who are allegedly members of al Qaeda, I understand the need for strict rules and restrictions. We were told that previously observers were far more restricted and could not leave Camp Justice at all. I feel fortunate that I will be able to see much of the base and travel relatively freely to most areas without an escort.
Day 1: Venturing out from Camp Justice
The Navy Exchange and Commissary
After a brief visit to the Navy Exchange (like a supermarket and department story rolled into one) we returned to our tents for a brief rest before attending a barbecue hosted by the defense counsel for the 9/11 hearings. Meeting the defense counsel for each of the defendants at the barbecue was exciting and a little overwhelming at first. These attorneys are the defense counsel in what one of the attorneys present described as the most significant capital case in United States History. After a year of reading the transcripts of their arguments and their quotes in news stories, it felt surreal to meet them in person. I was very grateful that they were willing to take the time to host an events such as this on our behalf. We were told that the weekly barbecue for observers started as a way to get observers out of the Camp Justice complex in the past when the rules prevented observers from leaving. At the end of the evening, the defense team answered questions and I learned much about the Military Commissions, the hearings in the 9/11 case from last week and regarding expectations for the hearings we will view this week.
AE 400 Tomorrow and Expected Motions this Week
Supplies and resources available to all observers in the NGO lounge at Gitmo provided by IU McKinney’s Program in International Human Rights Law’s U.S. Military Commissions Observation Project
We expect that the hearing tomorrow, February 22nd, the hearing will begin at 9:00 am with motion AE400. Motion AE400 is unusual as it was filed by a group of members of the press (17 news groups) rather than the defense or prosecution. The press is seeking to unseal the transcript of the public hearing of the Military Commission hearing that took place on October 30, 2015. That hearing and the later redacted testimony was heard by observers, the members of the press and victims families in the observation area, but the transcript was later heavily redacted. The movant argues that the redaction after the public hearing is contrary to the Office of the Military Commissions claims of providing transparency. The prosecution is expected to argue that redacting the transcript after the information was made publicly available is currently and has historically been within the government’s authority to protect sensitive information.
We were informed that other motions that may be heard this week may include:
AE254Y and AE254YYY concerning the use of female guards during confinement,
AE396 regarding the classification of documents requested in discovery, and
AE397 regarding the consolidation of the defense’s discovery motions.
Both AE397 and AE 396 were discussed last week as well.
My passport and boarding pass. The boarding pass destination originally said New Orleans, but the gate agent was able to change it to NBW (Guantanamo Bay)
This morning I traveled from Andrews Air Force Base (Andrews) to Camp Justice at the Guantanamo Bay Naval Base to attend hearings in the 9/11 case. I arrived at the terminal at Andrews at 6 AM this morning. I was bleary eyed, but excited to finally get a chance to travel to Guantanamo. My last three trips were cancelled prior to departure and I told my wife when she dropped me off to make sure her cell phone was on in case we found out that the hearings were cancelled or delayed. I walked in and found five or six people in the waiting room. I was a little nervous that I was in the wrong place (the e-mail we received said to arrive at 6 and no later than 7) and the first thing I did is to confirm with at the check-in desk that this was the the passenger terminal (it was). About 30 minutes later, our escort, Mark, arrived with most of the observers. Everyone else had been dropped off at the visitor center and had been waiting there for Mark to bring them to the terminal.
After introducing myself to the other 10 observers, I distributed copies of the Guantanamo Bay Fair Trial Manual and I has happy to see most of the observers reading through the Manual over the next hour or so until it was time to check-in. I am proud that the Gitmo Observer and Professor George Edwards created the Manual as I believe it is an excellent resource for anyone who wishes to better understand the Military Commissions and to ascertain whether a fair trial is being had, has been had or can possibly be had under the Military Commision judicial system. In the short-time prior to the flight, several observers mentioned that they skimmed the Manual and believe it will be useful throughout this upcoming week.
Prior to departure after being dropped off at Andrews Air Force Base. The brown bag is full of copies of the Guantanamo Bay Fair Trial Manual
My fellow observers are roughly 60% law students and 40% practicing attorneys hailing from everywhere from California to Virginia and, based on our brief conversations thus far, seem an interesting mix of backgrounds including a deputy prosecutor, former members of the military and and a lawyer that works in poverty law. A few folks napped while we waited in the terminal for our 10am departure. My excitement was tempered only slightly by my drowsiness.
We checked our bags at around 8:15 AM and other than a prohibition against open-toed or open heeled shoes on the flight, the check-in process was similar to previous flights I have taken. We took a shuttle bus out to the tarmac and boarded our chartered Sun Country Airlines 737-800 plane at roughly 10am and left shortly thereafter. While boarding one of the observers asked whether the first class seats were available. We were told they are reserved for victim’s family members. I later found out that there were 10 victim’s family members that traveled with us to view the hearings.
The flight was pleasant, with a large meal and plenty of space as there were enough empty seats that everyone got their own row (and there were still empty rows left over). I estimate that there were roughly 60 people on flight. I had never heard of Sun Country Airlines, but according to their flight map in my seatback pocket, almost all of their flights depart from Minnesota. I spent most of the roughly three hour flight reviewing the fair trial manual and a summary of the motions for the upcoming week from an e-mail I received a few days ago.
My next post will cover my arrival at Guantanamo Bay, summarize my second day and provide a brief introduction to the AE400 motion scheduled for tomorrow.
Matthew Kubal as a Program in International Human Rights Law Intern at the Independent Jamaica Council for Human Rights in June of 2007
I am a graduate of the Indiana University McKinney School of Law, and have a long history of working with the school’s Program in International Human Rights Law both while I was a student and after I graduated. I am honored that now, as an attorney in Indianapolis, the Program nominated me to monitor the U.S. Military Commission hearings at Guantanamo Bay, Cuba. The pentagon confirmed my nomination to travel to Guantanamo Bay from 22 – 26 February 2016 to monitor the case against 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon (commonly known as the “9/11 case”).
Another graduate of the McKinney law school, Mr. Paul Schilling, is at Guantanamo Bay this week monitoring this same case. Professor George Edwards, who founded the Program in International Human Rights Law, is traveling to Ft. Meade, Maryland this week and next week to monitor the Guantanamo Bay hearings that are being streamed by secure video-link into the Ft. Meade military base. You can read their blog posts here at http://www.GitmoObserver.com.
Khalid Shaikh Mohammed, one of the 5 defendents in the 9/11 case
Will the hearings go forward next week?
This is my fourth nomination to travel to Guantanamo Bay, Cuba to monitor Military Commissions live. In 2015, I was nominated on three occasions: twice to observe hearings in the 9/11 case and once to observe hearings in the case against al-Nashiri, who is charged with masterminding the attack on the U.S.S. Cole off the coast of Yemen in 2000. All of these hearing sessions were cancelled prior to my departure. I am well aware of the possibility that this coming week’s 9/11 hearings might be delayed or cancelled as well.
Logistics and other challenges
The Military Commission Hearings are a massive logistical undertaking. Each hearing requires coordinating and transporting nearly all of the persons involved in running the court and the hearings (attorneys, court staff, press, victims and their families, security, NGO observers and so on) from Andrews Air Force Base just outside of Washington D.C. to Guantanamo Bay, Cuba. Everybody boards the plane at Andrews at the beginning of the hearing week, and at the end of the hearings, everybody gets back on the plane in Cuba and flies back to Andrews. Each government charter or military flight to Guantanamo for the Military Commission hearings reportedly costs $90,000 per flight.
Would it be less costly for the 5 defendants to be flown to the U.S.? Well, the defendants remain in Guantanamo as they are barred by federal law from being transported to any of the 50 states or the District of Columbia for any reason.
The challenges of creating a new justice system lead to delays that would otherwise not be necessary in a state, federal or military court. In Military Commission hearings some argue that certain rules and procedures of the court, rights of the defendants, evidentiary issues, etc. are more likely to be novel where no standard or precedent has been firmly established. Compared to their contemporaries in the United States military, state and federal court systems, attorneys, judges and court staff working in the Military Commission are blazing a trail through uncharted terrain and such a journey involves many uncertainties that serve to delay the judicial process.
An example is a story I was recently told where a defendant at the Military Commission hearings was requesting to dismiss his counsel and represent himself. In the US Federal or State Courts, the judge would attempt to ascertain whether the defendant understands what he is getting into, whether he was improperly influenced and whether he understands his rights. In the case of the Military Commission, the defendant’s attorney was unable to advise the client as to his rights because no one had previously defined what those rights would be. The hearings had to be delayed for a period of time while the interested parties decided what rights the defendant actually had (or at least what he needed to be advised of in order to be sufficiently informed regarding his decision to represent himself). In an Indiana state court, no such inordinate delay would be required as such a process is routine and has been well-established over the course of decades of jurisprudence.
Bureaucracy and the desire for secrecy play a role in delaying the hearings. The Military Commissions and the operation of Camp Justice (where the hearings take place) involve a broad array of domestic government agencies from each branch of the armed forces, to the executive branch of government to the the United States Court of Appeals, etc. (a comprehensive list of stakeholders domestically and internationally would be quite long indeed).
Each agency involves itself for different, sometimes competing, reasons and each agency has its own bureaucratic rules and hierarchies that must be navigated. In addition, much of the evidence, the defendants themselves and many of the court filings require a security clearance to view or interact with. A good example of a bureaucratic delay is in the Hadi al Iraqi case which is currently delayed “until a time to be determined based on the detailing of counsel for this accused” after Hadi fired his attorney in late September, 2015. The replacement attorney must obtain a security clearance prior to speaking to Hadi. The process for approving the new attorney’s required security clearances may take 6 months or more. Even after receiving his or her clearance, the attorneys will then need to meet with Hadi (requiring some or all of the travel and other logistical challenges I mentioned earlier) and be given sufficient time to prepare before hearings may resume.
As a monitor, I will attend, observe, analyze, critique and report on the Military Commission hearings. I will report my observations to this blog and will take part in the continued writing and editing of the draft Guantanamo Bay Fair Trial Manual in hopes that it will serve as a guide for future Guantanamo Bay observers and anyone else interested in the hearings and trials.
Many of the ideas above are based on my memory and understanding of a recent briefing at the Indiana University McKinney School of Law provided by Indianapolis attorney Richard Kammen (who represents Mr. Abd al-Rahim al-Nashiri). The foregoing is my opinion in my own personal capacity, and my blog posts and other comments are my own and do not necessarily reflect those of the Indiana University McKinney School of Law or Mr. Kammen.
Military tribunals for some accused of terrorist attacks on the United States are held at Camp Justice at Guantanamo Bay. (Photo by Catherine Lemmer, IU McKinney School of Law)
The pretrial hearing scheduled to take place from the 24th of August through the 4th of September has been cancelled. According to the docketing order for the now cancelled hearing, the court was to hear argument pertaining to 36 different motions. The consideration of the motions was contingent on the outcome of motion AE 292, Emergency Joint Defense Motion to Abate Proceedings and Inquire into Existence of Conflict of Interest Burdening Counsel’s Representation of Accused, and that issue remains unresolved per Miami Herald reporter Carol Rosenburg.
Two representatives (Luke Purdy and myself, Matthew Kubal) of the Military Commission Observation Project and the Program in International Human Rights Law at Indiana University Robert H. McKinney School of Law were scheduled to attend the hearings at Guantanamo Bay as observers.
The Polish Foreign Ministry has requested assurances from the U.S. that Abd Al Rahim Hussayn Muhammad Al Nashiri will not be subject to the death penalty. Reuters reported that according to the Polish Foreign Ministry Poland’s government “has taken steps to seek diplomatic assurances that the applicant (Nashiri) will not be subjected to the death penalty, first by engaging in diplomatic talks, and then by delivering an official note on the matter”.
The request from the Polish Foreign Ministry is presumably in response to the European Court of Human Rights judgement that Poland violated the European Convention on Human Rights by cooperating with the Central Intelligence Agency to detain Mr. Al Nashiri in violation of several articles of the Convention. The Court ordered Poland to pay €100,000 ($134,640) in damages to Mr. Al Nashiri, legal costs and expenses and ordered the Polish government to obtain diplomatic assurances from the U.S. that Mr. Al Nashiri would not be executed. The U.S. was not a party to the proceedings.