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.