al Nashiri

Bound for Guantanamo Bay, Cuba: Reporting from Andrews Air Force Base

Reporting from Andrews Air Force Base

I am a recent graduate of the Indiana University McKinney School of Law (IU McKinney) representing the IU McKinney Military Commission Observation Project (MCOP).  This morning I am traveling to Guantanamo Bay, Cuba to monitor U.S. military commissions against an alleged high-level member of al Qaeda who is charged with several war crimes.

The MCOP, which was founded by Professor George E. Edwards, routinely sends IU McKinney students, faculty, staff, and graduates to Guantanamo to serve as non-governmental organization (NGO) Observers, through a Pentagon initiative in line with the U.S. government’s stated objective of transparency in the war crimes proceedings occurring at Guantanamo.  Indiana’s NGO Observers travel to Guantanamo with a mission to attend, observe, be observed, analyze, critique, and report on the commissions.  I write to you now from Andrews Air Force Base while waiting to board my military flight to Guantanamo in furtherance of this mission.

I am joined at Andrews by three other NGO Observers representing different organizations.  This is a relatively small group of Observers, as Guantanamo NGO Observer groups can sometimes consist of ten or more individuals.  While we wait, we are studying two manuals, prepared by Professor Edwards, related to our mission:

(a)  Guantanamo Bay Fair Trial Manual – Excerpts (which describes the U.S. Military Commissions, what a fair trial should look like at Guantanamo, the applicable law, and other related materials); and

(b) Know Before You Go To Guantanamo Bay (which describes a pragmatic approach to NGO Observation, the Roles and Responsibilities of NGO Observers, the Dos and Don’ts at Guantanamo, the beaches, the restaurants, the theaters, and various other amenities available at Guantanamo when court is not in session).

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NGO Observers reviewing copies of the “Guantanamo Bay Fair Trial Manual – Excerpts.

Beyond this, we have been introduced to two escorts who are to serve as our primary liaisons and guides during our stay at Guantanamo.  Our escorts have identified various rules to be followed while at Guantanamo (including photography limitations, security badge requirements, and the need to inform each other of our activities and whereabouts during our stay).  They also explained that serving as an NGO Observer at Guantanamo would be an exercise of flexibility and patience, as rules and schedules are often subject to change (see “Reduced Hearing Schedule” heading below).

Nashwan al Tamir / Abd Hadi al Iraqi

I will be observing the case against Nashwan al-Tamir (what he declares to be his true name), or Abd al Hadi al Iraqi (the name the prosecution used in the charges; hereinafter “Nashwan / Hadi”).  Nashwan / Hadi is an alleged senior member of al-Qaeda, and is accused of commanding indiscriminate attacks against U.S. and coalition personnel in Afghanistan and Pakistan in collaboration the Taliban, among other charges.  Nashwan / Hadi was captured in Turkey in late 2006 and was soon turned over to U.S. intelligence.  He subsequently spent 170 days in secret CIA custody before being transferred to Guantanamo in 2007, where he has been the subject of proceedings since 2014.  He is described as a “high-value detainee” by U.S. officials, and was proclaimed by the Bush administration to be among Osama bin Laden’s “most experienced paramilitary leaders”.

Reduced Hearing Schedule

In the days preceding my scheduled flight to Guantanamo, I received an email from the Office of Military Commissions (OMC) Convening Authority informing me that the hearings for this coming week in the Nashwan / Hadi case had been reduced from a full week of hearings (24 – 28 September 2018) to a single hearing day (24 September 2018).  I was not entirely surprised by this news.  Guantanamo hearing schedules tend to change with little notice, perhaps especially in the case against Tamir / Hadi, given the reported fragile state of his health.  Indeed, during my past nomination, the hearings I was scheduled to observe were cancelled altogether.

The OMC initially suggested that because of the reduced hearing days, we would return from Guantanamo earlier than scheduled.  However, at Andrews our escorts informed us that we would remain at Guantanamo for the entire week – Sunday through Saturday – even though we would have hearings only on Monday morning.  Our escorts also told us that they are organizing non-court activities at Guantanamo, with more information to soon follow.

I am excited for the hearing, and to see how the rest of the week unfolds.

Conclusion

Please stay tuned for future updates; I plan to continue blogging throughout my stay at Guantanamo.

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Fellow NGO Observers and I holding our copies of the “Know Before You Go To Guantanamo Bay Guide” in preparation for our trip to Guantanamo.  I am second from the right.

Jacob Irven, J.D. 2018
Military Commission Observation Project
Program in International Human Rights Law
Indiana University McKinney School of Law

Voter Protection Legal Fellow
Indiana Democratic Party

Jacob.Irven@gmail.com

Reflections on my Previous Guantanamo Observation Trip

I traveled to Guantanamo Bay, Cuba from 11 to 18 November 2017 to observe military

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Four other NGOs and I at Guantanamo’s Camp Justice that week

commission proceedings against Mr. al Nashiri, who is facing war crime charges as the alleged mastermind of the October 2000 bombing of the USS Cole that killed 17 U.S. sailors and wounded dozens more. I am a student at Indiana University McKinney School of Law, and I was a non-governmental organization (NGO) representative on behalf of McKinney’s Military Commission Observation Project. I was there to attend, observe, be observed, analyze, critique, and report on my experiences.

My Previous Guantanamo Observation

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Lighthouse at Guantanamo

Court was in session four of the five days during my week at Guantanamo. Most of the witnesses were called by the prosecution to testify about evidence they had collected from the USS Cole after the bombing and to verify the chain of custody.

Some of the witnesses were called to testify about the ongoing professional responsibility issue in the case. The issue is complicated, and is discussed more in-depth here and here.

In brief, Mr. al Nashiri’s Learned Counsel (an attorney who is experienced in death penalty cases) and two other civilian attorneys for Mr. al Nashiri did not travel to Guantanamo Bay for hearings that week as they contended that the Chief Defense Counsel of the Military Commissions released them from representing Mr. al Nashiri for “good cause.” The Judge disagreed with the Chief Defense Counsel’s decision and held him in contempt for refusing to rescind his order to release counsel and for refusing to take the stand and testify about the issues. The Judge has asserted that these three defense counsel have “abandoned” Mr. al Nashiri.

In January 2018, the Judge ordered the prosecution to subpoena the three defense counsel and recommended that the remaining defense counsel, LT Piette, become “more comfortable handling capital matters” so that the case can continue forward. The case did arguably move forward in January, in the sense that hearings were held that month, with LT Piette sitting in the courtroom as the only lawyer representing Mr. al Nashiri.

The Judge is awaiting decisions from two federal district courts.

Further Thoughts

Now that time has passed since I observed Mr. al Nashiri’s proceedings I have had time

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In front of the North East gate which separates the U.S. and Cuba

to reflect on his case, and on the military commission proceedings in general.

U.S. military commissions are not new, and in fact have been around since the Revolutionary War. Our current military commission process is guided by the Military Commission Act (MCA) of 2009, which built upon the MCA of 2006, which followed from an Executive Order signed by President Bush in 2001. The MCA of 2009 is the legal authority for this court-martial/federal criminal court hybrid, and a legal observer can see the qualities of both criminal processes present in these military commissions.

Guantanamo defendants and defendants in the U.S. are under law meant to be afforded due process, and all have the Constitutional right of habeas corpus. On the other hand, their trials are guided by two different, but similar, rules of evidence. Both courts-martial and military commissions are generally open proceedings, but both can be closed for classified sessions. Courts-martial and military commissions both have a panel of military members and are not a trial by a judge or with a civilian jury.

Reasons for Wanting to Return

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Flying over Cuba

I hope to travel back to Guantanamo Bay, Cuba to either continue monitoring the commissions against Mr. al Nashiri, or to begin monitoring the commissions against Mr. Khalid Shaik Mohammad, also known as “KSM”, and his four co-defendants, also known as the “9/11 five.” I want to return to monitor the commissions against Mr. al Nashiri because I have observed his hearings in the past, and I have since been following his case.

I am also interested in observing the 9/11 five since the courtroom and military commission proceedings were designed to specifically try the 9/11 defendants. Further, I was in 2nd grade when 9/11 happened, and it is an event that I remember clearly and grew up learning about. It is an event that affected nearly everyone in the U.S. and beyond. In addition, 9/11 was a key event that changed how the U.S. combats terrorism and seeks to protect national security. I would be interested in observing and analyzing how the government is working towards those goals of counterterrorism and national security via the military commissions.

For either case, I believe it would be a great opportunity to learn more about this hybrid court-martial/federal criminal court process. I believe I would also gain insight that I could bring back to the Program in International Human Rights Law at McKinney so I can contribute to the Know Before You Go Guide and the Fair Trial Manual.

In addition to traveling to Guantanamo Bay, I would like to travel to Ft. Meade, Maryland, where the Guantanamo proceedings are broadcast by live CCTV to a secure room. This will offer me another perspective on the issue of openness and transparency of the proceedings, which is outlined in the MCA.

While I was observing the military commissions against Mr. al Nashiri in November

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Camp Justice, where I lived with the other NGOs for the week

2017, I was taking courses in Counterterrorism, Evidence, Professional Responsibility, and Criminal Procedure: Investigation back at Indiana University McKinney School of Law. I found all these classes to be helpful in understanding what was happening in the courtroom. I believe I will now have an even fuller understanding of what is happening in the courtroom since I have completed those courses. I am now currently taking Military Law and Criminal Procedure: Adjudication. Considering the military commissions are essentially halfway between a court-martial and a federal criminal trial, all the mentioned classes are very helpful. I also greatly appreciate that I have the opportunity to observe what I am learning at McKinney in the real world.

Further, I would have the opportunity to achieve the goals of McKinney’s Military Commission Observation Project: to attend, observe, be observed, analyze, critique, and report on my experiences. I would be able to bring what I observed first-hand, critique and analyze it, and share it with the public via the Gitmo Observer.

 

Jessica Ayer (J.D. Candidate, ’19)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

Traveling to Guantanamo Bay, Cuba

I am currently sitting at Joint Base Andrews in Maryland waiting to board the commercial aircraft carrier that will take me, along with four other NGO observers, to Guantanamo Bay, Cuba. While at Guantanamo, I will have the opportunity to attend, observe (and be observed), analyze, critique, and report on the al Nashiri military commission proceedings on behalf of the Military Commission Observation Project (MCOP) through Indiana University McKinney School of Law. Mr. al Nashiri is facing war crimes charges as the alleged mastermind of the October 2000 bombing of the USS Cole off the coast of Yemen, killing 17 sailors and wounding many more.

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Sunrise while waiting for the flight at Joint Base Andrews.

On Friday 10 November I drove from Indianapolis, Indiana, where I am a current second-year student at Indiana University McKinney School of Law, to the Washington, DC area. On the morning of 11 November, I drove to the Air Passenger Terminal at Joint Base Andrews.

After I arrived at the terminal, I met up with the other NGO observers, and handed out copies of the Guantanamo Bay Fair Trial Manual and the Know Before You Go: Guantanamo Bay, both of which are produced by the Indiana University McKinney School of Law Program in International Human Rights Law. The other NGOs are representatives from: the American Bar Association, Seton Hall University School of Law, the Pacific Council on International Policy, and the Georgetown University Law Center.

The flight is scheduled to take approximately three and a half hours. For now, though, I am ready to board the flight and am excited for the week ahead!

 

Jessica Ayer (J.D. Candidate, ’19)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

My Scheduled Trip to Monitor Military Commissions at Guantanamo Bay, Cuba

I am scheduled to fly to Guantanamo Bay, Cuba to monitor hearings in the U.S. Military Commission case against Mr. Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri. Mr. al Nashiri is facing war crimes charges as the alleged mastermind of the October 2000

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Damage to the USS Cole.  Picture from CNN.

bombing of the USS Cole off the coast of Yemen, killing 17 sailors and wounding many more. I am a second-year student at Indiana University McKinney School of Law, and was nominated by our school’s Military Commission Observation Project (MCOP) and confirmed by the Pentagon’s Office of Military Commissions (OMC) for this monitoring role, from 11 to 18 November 2017.

Current Case Status

Mr. al Nashiri’s case is in a position no other Guantanamo case has been in before.

Several weeks ago, Mr. al Nashiri’s defense team consisted of Navy Lieutenant Alaric Piette, Ms. Rosa Eliades, Ms. Mary Spears, and Mr. Rick Kammen. Since Mr. al Nashiri faces the death penalty, he has, “to the extent practicable”, the statutory right to have a “Learned Counsel” — or an attorney who is qualified to serve in capital cases. Mr. Kammen served as Mr. al Nashiri’s Learned Counsel since 2008.

On 11 October 2017, Brigadier General John Baker, chief defense counsel for the Military Commissions, released Mr. Kammen, Ms. Eliades, and Ms. Spears for what he described as “good cause” due to “lack of confidence in the confidentiality of their privileged conversations with [al Nashiri] at Guantanamo” according to the release memo singed by General Baker.

Judge Spath ordered Mr. Kammen, Ms. Eliades, and Ms. Spears to appear in court at Guantanamo on 30 October 2017, however the three attorneys did not board the plane to go down there. Judge Spath said the hearings will continue and that General Baker’s release of the three attorneys was “null and void.”

On 1 November 2017, Judge Spath held General Baker in contempt for “willfully refus[ing] to obey the commission’s order to testify” and for “willfully refus[ing] to obey the commission’s order to rescind [his] excusal of [Mr. Kammen, Ms. Eliades, and Ms. Spears].” On 3 November 2017, a Defense Department lawyer agreed to defer General Baker’s punishment, and General Baker was released from confinement to his quarters.

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BG Baker after being released from confinement to his quarters. Picture from Miami Herald.

 

Judge Spath has said that he intends on continuing with the hearings on “things that don’t relate to capital issues” through next week. It is still unclear whether the hearings will continue the week of 13 November 2017, when I am scheduled to be at Guantanamo.

Preliminary Thoughts                       

I am still hopeful I will have the opportunity to travel down to Guantanamo. I am currently scheduled to depart from Joint Base Andrews on 11 November. I am looking forward to attending, observing (and being observed), analyzing, critiquing, and reporting on the military commissions as a neutral stakeholder, and ultimately having this incredible potential opportunity that, unfortunately, not many people get.

 

Jessica Ayer (J.D. Candidate, ’19)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

My second observation of war court proceedings at Guantanamo Bay, Cuba

The Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law nominated me, and the Pentagon confirmed me, to travel to Guantanamo Bay, Cuba to monitor U.S. Military Commission hearings in the case against Khalid Shaikh Mohammed and four other alleged masterminds of the 9/11 attacks.

This was my fourth scheduled trip as part of Indiana’s project, and my second trip to Guantanamo. I was originally scheduled to observe at the beginning of October in the case against Hadi al Iraqi, an alleged high-ranking member of al Qaeda, but as reported by Carol Rosenberg in the Miami Herald, the hearings were canceled due to a medical issue experienced by Hadi.

Breaking news concerning the case U.S. v. al Nashiri

A couple of days before we arrived at Guantanamo, we heard news that 3 members of the defense counsel for Mr. al Nashiri, who is charged in a separate death penalty case, were released from their defense roles by Brigadier General Baker, chief defense counsel. Mr. al Nashiri is accused of orchestrating the attack on the U.S.S. Cole in late 2000, killing 17 U.S. sailors.

The three members of the defense, including learned counsel Mr. Rick Kammen, quit earlier this month over a “secret ethical issue” that the defense claimed compromised attorney-client privacy. A learned counsel is an attorney with experience in capital cases, and whose representation and presence is a requirement for these proceedings. Today, judge Air Force Col. Vance Spath scheduled a contempt hearing to be held tomorrow Wednesday after the three members of the defense refused to appear at war court. Read more at the Miami Herald.

Arrival at Guantanamo

We arrived at Guantanamo on Saturday, 14 October and were immediately escorted to our lodgings where we quickly unpacked and began to settle in. That afternoon, our

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Standing at the Camp Justice sign a few hours after arriving at Gitmo.

escort drove us to the Navy Exchange where we were able to stock up on snacks for the week, since our dining options are limited mostly to the galley (cafeteria food) or fast food (Subway, McDonald’s, Starbucks). We obtained our security badges and were instructed to wear any time we were home at Camp Justice.

 

Monday, 16 October

We entered the courtroom and were assigned seats in the gallery, which is separated from the courtroom by thick glass. There is a 40-second sound delay for the purposes of national security, where the judge is able to cut the feed to the gallery and the CCTV in case of accidental or otherwise classified discussion.

The hearings began promptly today with the defense counsel advising Judge Pohl that there were motions in the works to address the issue of possibly compromised meeting spaces after the developments concerning Mr. Kammen and the al Nashiri case came to light prior to the week’s hearings. Judge Pohl said he wasn’t certain that Brigadier General Baker has the authority to disband the trial team.

The defense also raised the issue of claims of lack of resources by the Joint Task Force (JTF) that directly affect the meetings between counsel and defendant. The Joint Task Force is in charge of the operations at Guantanamo, including detainee operation logistics and detainee transfer/supervision. Since the typical meeting spaces will likely be investigated after the developments in the al Nashiri case, the question concerned where the next most adequate space to meet with the defendants will be.

The defense raised a discovery issue — their ongoing request for Brady material. Brady refers to the case Brady v. Maryland, where the court held that the prosecution must turn over any evidence favorable to the defendant, or, exculpatory evidence (also known as “Brady material”). The Government responded that the defense has been provided with any material they (the Government) deemed relevant, and that the defense can request more discovery. The defense argued that the purpose of discovery is not to have to hunt for evidence. The Government referred to a “voluminous discovery” request by the defense, and said that the Government has no obligation to “spoon-feed” discovery to the defense.

The unofficial transcripts for Monday’s hearings may be found here.

Court recessed for lunch at around 1:00PM and the rest of the session was closed to observers.

Tuesday, 17 October

There was no court today, so the NGOs took the day to sightsee, relax, and catch up on work.

Wednesday, 18 October

The day began with news of government-seized attorney-client privileged material

The hearings resumed Wednesday morning, and started with the news that the JTF had seized the defendants’ laptops which the defense counsel argued contained attorney-client privileged material. Judge Pohl asked the Government to explain why the JTF seized the material. The Government stated that they were working on filing a response to what had occurred that morning and why.

The first motion was picked up from Monday at the end of the session concerning an issue of metadata that was brought by the defense. The defense argued that the prosecution turned over photographic evidence with all metadata stripped off. Metadata is the information that attaches to a digital photograph, including location, date, and time of the photograph, and depending on the sophistication of the equipment used, could even reveal the name of the person who took the photograph. The defense argued that such information is important to their case. The Government responded that the metadata was not relevant, and that the Government will seek to classify the information if the Judge orders that the government turn over metadata to the defense.

The defense also raised a motion to compel the Government to release information regarding certain torture sites, including information on the confinement buildings. The defense sought any architectural drawings, contracts, agreements, etc. pertaining to the buildings. The defense argued that prison architecture can typically reveal a lot about the conditions under which the detainees were held. The actual sites were destroyed or decommissioned, and the defense argued this information may help draw the picture of the conditions under which the defendants were held while at black sites around the world.

The Government responded that the defense could obtain this information from the defendants themselves, and that any information remaining on the black sites is classified “across the board”. The Government argued that while the information may be material to the defenses’ preparation, it is inapplicable to the case because the Government is not using building logistics in their case against the defendants.

The unofficial transcripts for Wednesday’s hearings may be found here.

The session ended late in the afternoon, at around 5PM. The gallery emptied at the close of session, but the NGO observers stayed behind to discuss the day’s events. During this time, we observed one of the four alleged war criminals rise and begin the Islamic Call to Prayer as the four other men stayed seated and continued discussion with their defense

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Photo by Janet Hamlin of the five defendants in the KSM case in 2012.  Source.

teams. Even though we had the thick glass separating us from where he was standing in the courtroom, we could still lightly hear the sound of the call. It was a surreal moment for the observers, and one I will never forget.

 

Thursday, 19 October

Today’s hearing was delayed by over an hour because of yesterday’s JTF seizure of the defendants’ laptops that contained attorney-client privileged material. The facts were somewhat unclear, but I believe that the laptops of four of the five defendants were seized as the defendants were on their way to court either the hearing or meeting with their counsel, and one of their materials was seized from the defendant’s cell. The Government noted that they will file notice with an explanation of why the seizure happened, and that the facts will justify the seizure.

This has been the third major seizure of attorney-client privileged material since this case started. The defense asked the judge for transparency in this process and the Government responded that they were filing a response as to what happened. Judge Pohl asked the Government to tell the courtroom what had happened, but the Government insisted that the judge would be interested in seeing the notice first.

The defense presented a list of over 100 potential witness. The defense mentioned the logistical issues that might arise with that high number of witnesses potentially coming to Guantanamo. This includes the issue of sufficient lodging, the threat to judicial independence if hearings are canceled and rescheduled, the fact that there is only one courtroom for all the current cases, scheduling conflicts for all parties involved, etc. The defense mentioned that resources are already an issue and affecting the military commission process.

Government invoked national security privilege during defense oral argument

Around half way through the defenses’ presentation on the proposed witness list, the Government quickly rose to address Judge Pohl and invoked the privilege of national security in regards to the presentation. From the observer standpoint, it seemed that the Government was invoking national security because of information found on the slides, which the judge confirmed with the defense had been sent through the appropriate review and declassification procedure prior to the hearing.

Judge Pohl issued a 10-minute recess so that the Government could figure out what the issue was. During the confusion, the obviously frustrated judge addressed the Government, “Now what do I do?”

The NGOs were allowed to remain in the gallery and we were able to observe the confusion in the courtroom.

Once court was reconvened, the Government requested more time. Judge Pohl inquired into what he deemed an arbitrary interruption to the proceedings and told the Government that there was no classified information in the presentation and therefore no reason to assert national security privilege. There was confusion because the Government did not continue to object to the defenses’ presentation, and the hearing was suddenly free to continue. Judge Pohl asked the Government if the defense was allowed to proceed, to which the Government replied that the defense may continue argument as planned.

The afternoon continued with oral argument on motions to compel the identities of witnesses who were only identified with pseudonyms, and also a motion to compel the location of black sites.

Towards the end of the day’s hearing, defense counsel brought up the seizure of the defendants’ laptops, seeking resolution. The defense claimed that there was no probable cause or even reasonable suspicion for the laptops to be seized. The Government’s position was that the laptops would not be returned and the Government would file more pleadings on the issue “in light of the circumstances described”.

Over 24 hours after the attorney-client privileged material was first seized by the JTF, Judge Pohl issued an order that the materials be secured with tamper-proof tape, and placed in a receptacle secured with the same.

The unofficial transcripts for Thursday’s hearings are not available.

Final thoughts

A lot of questions came up during our NGO discussions throughout the week, mostly surrounding the seizure of attorney-client privileged material, the Government invoking national security privilege on declassified material, and also about the judge’s role in the

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A look at the NGO Resource tent where the NGOs retreat to socialize and work after each hearing.

whole process. The defense seems to be strongly advocating for the interest of their clients, and going above and beyond in their duty to the rule of law and the constitutionally-bound process.

 

While I heard less from the government this week, it seems that they are ultimately interested in achieving justice, but hold a lot of control over the court (such as having the immediate ability to stop all discussion as happened at the hearing on Thursday, even though there was no classified material being discussed.)

My hope for these proceedings is that more Americans become interested and involved in something that a lot of people don’t even know is currently ongoing. Observation is difficult considering that the methods to watch these pre-trial hearings are severely limited, but there are great resources online from both media and NGO observers that members of the public may follow.

Even then, I noticed that the daily transcripts that the military commissions posts on the webpage at www.mc.mil are not complete, with some days missing hours’ worth of transcripts, and some days, such as Thursday, 19 October, missing completely from the website. Without observer and media reporting, the public would likely not know what happens are Guantanamo war court.

 

Sheila Willard (J.D. Candidate, ’18)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

I’m Scheduled To Fly To Guantanamo Bay Today

Showtime – Andrews Air Force Base to Guantanamo Bay

I am scheduled to travel to Guantanamo Bay today to monitor hearings in the case of al Nashiri, who is the alleged mastermind of the 2000 U.S.S. Cole bombing off the coast of Yemen that killed and wounded dozens of U.S. sailors. I am representing the Military Commission Observation Project of Indiana University McKinney School of Law, where I am a student. I am looking forward to carrying out my observer / monitor responsibilities, which include to attend, observe, analyze, critique and report on the military commissions that have charged several men with perpetrating war crimes.

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Arrival at Andrews Air Force Base

Most of the military commission flights to Guantanamo Bay depart from Andrews Air Force Base (AAFB).

Last night I stayed at a nearby Holiday Inn, and took a (taxi?) to the Andrews Visitor Center at 7:00 AM, where I met two other NGO representatives — Carol and Michelle – who were scheduled to join me on the trip to Guantanamo.

A government representative (Tony) picked us up around 7:30 AM and drove us to the Andrews terminal, where we met the rest of the NGO reps.

After we passed through security and I obtained my boarding pass, I handed all the NGO reps who were present a copy of the Know Before You Go To Guantanamo guide and the Guantanamo Bay Fair Trial Manual excerpts. These documents were produced by the Indiana McKinney Military Commission Observation Project (Gitmo Observer). I received many thanks for providing such helpful documents.

While waiting to board, we saw Vice President Mike Pence board what looked like Air Force One, but was actually Air Force Two. There were several security personnel around him, including secret service agents and military. An hour after Pence departed, we boarded a bus that took us to the commercial plane (Atlas Air) bound for Guantanamo.

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I am now on the plane about an hour away from arrival. I am looking forward for what’s in store to come.

 

Tex Boonjue, J.D. Candidate

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

I’m Flying to Guantanamo Bay, Cuba tomorrow for U.S. Military Commission Hearings

I’m Flying to Guantanamo Bay, Cuba tomorrow for U.S. Military Commission Hearings

When I enrolled at Indiana University McKinney School of Law almost 3 years ago, I learned that the school had a program that focused on Guantanamo Bay, Cuba. After my first year, I participated in that program – the Military Commissions Observation Project (MCOP) — and I observed a pre-trial hearing in the case against Hadi al Iraqi, who is an alleged high level al Qaeda member who and liaison with the Taliban. I viewed the Hadi hearing at the Ft. Meade, Maryland army base via secure satellite transmission live from Guantanamo Bay. This was my first time observing a military commission, not to mention a Guantanamo Bay hearing of such a magnitude. Also I did legal research for the Guantanamo Bay Fair Trial Manual, which observers and others are using to help them determine whether rights are afforded to individuals and groups related to Guantanamo.

Tomorrow (Saturday, 11 March 2017) I am scheduled to fly from Andrews Air Force Base to Guantanamo Bay, where I will be monitoring the military commission case against al Nashiri, who is alleged to have masterminded the 2000 suicide bombing of the U.S.S. Cole, off the coast of Yemen, killing 17 U.S. sailors and wounding dozens more. Rather than view the hearings via CCTV at a military base in Maryland, I am expecting to view the hearings while sitting in the galley of the actual courtroom at Guantanamo Bay. I am representing the Indiana McKinney School of Law’s MCOP (also known as the Gitmo Observer). Hearings are set to begin Monday, 13 March 2017.

Travel to DC – Friday, 10 March 2017

10:00 – 11:30:  I woke up today feeling slightly better than I felt yesterday. I had hoped to fully recover from whatever it is that I have before departing for DC and beginning my mission to Guantanamo Bay. Nonetheless, I am still fully functional and very excited for what’s set to come these next 8 days.

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12:00 – 16:00: The hour and a half flight from Indianapolis to DC was as smooth as ever. Passing through security was a breeze. I won the armrest war. My bags were one of the first few down the conveyor belt.

16:00 – 18:30: After learning that my Verizon phone would not work in Guantanamo Bay and that I would need my own SIM card to communicate with the MCOP director while there, I searched for the nearest T-Mobile store on my phone and hopped onto the DC metro green line headed towards Gallery Place Station (in an area known as Chinatown). I ran into some slight issues at the T-Mobile store when trying to obtain a pre-paid SIM card. The employee must have been new because he said that the $50, 2GB talk/text, pre-paid SIM card that I had sought use in Guantanamo Bay did not exist. However, after some back and forth, a few calls to customer service, and a brief chat with his coworkers, we discovered that there was indeed a $50 pre-paid SIM card available for purchase ($66 total, $10 for the SIM + Tax). Our Project Director, Professor George Edwards, published in Know Before You Go To Guantanamo Bay that T-Mobile began operating at Guantanamo last summer. In one of my blog posts from Guantanamo I will report on how well the T-Mobile sim card works.

19:30 – 22:00: After obtaining the SIM card, I hopped back onto the green line and headed towards Branch Avenue. I am comfortably familiar with this line as I had taken it practically every day during my 2015 summer law internship with the Navy JAG Corp, when I worked at the Washington Navy Yard.

I got to my hotel – the Holiday Inn near Andrews Air Force Base – checked into my room, and unloaded my luggage. I then read additional parts of the Know Before You Go To Guantanamo guide while I had dinner (which I had brought with me from Indianapolis). Afterwards, I introduced myself via email to the 9 other NGO representatives who will be observing the hearings, and attached a copy of the Guantanamo Bay Fair Trial Manual, and the Know Before You Go To Guantanamo guide so that they could reference these materials before, during and after the hearings.

I learned that one of the observers scheduled to attend will not join us on the flight from Andrews tomorrow, which means that there will be at most 8 other NGO representatives will join me at the hearings.

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Reading the “Know Before You Go” Guide in my hotel room the night before departure

22:00 – 22:30.  I believe this trip to Guantanamo Bay will be a unique, informative and rewarding experience. I anticipate having much more to write about once set foot on the Guantanamo Bay Naval Station.

Tex Boonjue, J.D. Candidate

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

My travel to Ft. Meade to Monitor Guantanamo Bay Hearings for al Nashiri

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I travelled to Ft. Meade, MD to monitor a US Military Commission in the case of Al Nashiri, as I was representing the Military Commission Observation Project, of the Program in International Human Rights Law. The following are a few charges brought by the government:  Murder in Violation of the Law of War and Attempted Murder in violation of the Law of War.  al Nashiri is the alleged mastermind for the bombing of the USS Cole and other maritime attacks.

Indianapolis to Ft. Meade:

I chose to view the al Nashiri hearings at Ft. Meade during the week of 12/12/2016 and view via CCTV.  I flew United Airlines from Indianapolis to Dulles Airport on Sunday, 12/11/2016, where I rented a car and drove an hour to Laurel, Maryland.  I stayed at the Days Inn in Laurel, which is fifteen minutes (7 miles) from Ft. Meade. The hotel rates were lower in the area, so I did not mind a 15 minute drive, which is easy to navigate during rush hour.

Arrival to Visitors Center at Ft. Meade:

The hearings were originally scheduled to being at 9:00 AM on Monday, but I learned via email from Prof. Edwards, that the hearings would be delayed for two hours.  It was recommended that I arrive at Ft. Meade’s visitors center two hours before the start time of the hearing, so I arrived at 9:00 A.M., so that I could pick up my Ft. Mead Badge to permit entry to the base each day.  I went to the Ft. Meade Visitors Center to pickup my badge, I had two show two pieces of ID for them to Issue my Ft. Meade Credential and an easy process (since I had a background check completed through my the Observation Project prior to travel).  The line was short at 9AM, but it should be expected for there to be longer lines at 7AM, since that is the time the Visitors Centers open and anyone visiting the base would need to obtain credential prior to entering.  I drove through an inspection point, the entry point is directly behind the Visitors Center, which was an easy process.  The guards request to see a form of ID with the permit that was obtained at the Visitors Center.  The guards will randomly search vehicles, follow instructions of the guards and all will go smoothly.  If you are driving a personal vehicle, the guards may request to see insurance paperwork with your credentials and ID.  I was driving a rental guard, so I provided the proof of insurance that was purchased through the rental car agency.  Federal Law requires that all vehicles have updated insurance coverage when on base.

Observation Day 1

The al Nashiri hearings were broadcast by CCTV into a classroom at Ft. Meade’s McGill training center.  When you arrive at the training center, be prepared for security to do a quick wanding, then lock up your cell phone in a small locker in the classroom.  It is advisable to leave other devices and laptops in your hotel room or the trunk of your vehicle.

I attended three days of hearings, and each day there was only one other person in the room.  That person was responsible for ensuring all phones were stored in the lockers.  One the large screen in the font of the classroom, I could see different views of the courtroom at different times.  The camera seemed to be pointed at the person who was speaking at the time, whether it was Judge Spath (the military judge), the prosecution or defense lawyers, or the Defendant al Nashiri himself.

At the beginning of the Day 1 hearings, Judge Spath advised al Nashiri that he had the right to be present for all hearings, if he chose not to attend it would not have impact on decision-making regarding rulings to motions.  al Nashiri nodded and waved to the judge suggesting that he understood these rights.  al Nashiri also waived his right to have the court stop proceedings for specified times throughout the day for prayers.

Whenever I saw al Nashiri, he was sitting in a chair at the far end of the defense table, facing the court. He wore a white flowing shirt, but I was told later that he would wear the suit jacket of his interpreter, who was seated next to him throughout the hearing.  Al Nashiri’s hands and legs did not appear to be cuffed, and I was told later that he was not cuffed.  I could not see guards on the screen, though I was told that at all times there were at least four or five guards within several feet of al Nashiri at all times, though the guards were  not visible to me.  As mentioned, an interpreter was visible sitting beside al Nashiri and both wore headsets during the proceedings.

The defense called former assistant deputy of the Convening Authority. Edward Sherran to testify. The questioning by the defense focused on his role as assistant deputy and those of the advisors within the Convening Authority.  The defense also called Lt. Col. Lewis, again to offer insight to actions of the Convening Authority at the time Gill was the only advisor that was qualified to work on the Al Nashiri case.

Day 2:

Day 2 focused on a host of motions.  The first motion was by the defense, which was to compel witnesses to support the defense claim of the Convening Authority’s unlawful influence.  The defense would like to compel three former Convening Authority personnel to testify – Gill, Tull and former deputy Quinn.  The defense claims testimony is necessary, as the government continues to not respond with items requested in discovery motions.

The hearings then moved towards what is referenced as the “Kuwaiti Files”.  The defense requests intelligence relating to the drone strikes of Al Fahdi, as there is knowledge that there was a connection between Al Fahdi and al Nashiri.  The defense argued that the fact the Department of the Treasury placed Al Fahdi on a watch list for his role in the Linberg attack is evidence that there is a connection between al Nashiri and Al Fahdi, and that the evidence is relevant and necessary to a robust, effect defense of al Nashiri.  The defense claims that only 20 pages has been handed over by the government, that this is insufficient and that definitely more intelligence must be available, since the U.S. would not have killed Al Fahdi in a drone strike based on 20 pages of documents. The defense argued that the motion to compel government agencies to provide evidence is necessary, as the agencies have not been forthcoming.

The court discussed that the al Nashiri case has been in the discovery phase for five years, that it is necessary to move forward in a timely manner.  The remainder of the Tuesday hearing focused on the defense arguing that there would be a violation of Brady and Giglio rulings, which could lead the defense to request a mistrial.  Judge Spath stated the Brady and Giglio arguments are available during the appeal process, not during the discovery phase.  The defense then argued that the court should still grant the motion to compel, to ensure that a record is established and that a record is necessary for the appeals court to consider post-trial.

After a lunch recess, the afternoon hearings focused on “505” matters, which meant that there were classified hearings that were closed to the public.  It became clear that Friday hearings would also be classified and closed to the public.

On Tuesday, at lunch, I found the Ft. Meade food court, that offered several food options, including – Burger King, Boston Market, Philly Steaks, and Starbucks.

Day3:

Day 3, Wednesday morning hearings, were again open to the public and the Afternoon hearings were closed to cover classified matters.

In the morning, the defense raised additional motions to compel the CIA to provide information, especially relating to Black Site interrogations.  The CIA claimed that tapes, containing footage of al Nashiri being exposed to enhanced interrogation techniques and these tapes were important for an adequate defense.  The defense cited four other witnesses that should also be called to testify; these witnesses would provide information to the black site interrogations.  One witness identified was Mitchell, who recently released a book relating to the Black Site operations.

The morning hearing was shorter than the first two days, but it was full of defense arguments as to why government agencies should be compelled to provide evidence, while the prosecution arguments that evidence relevant to the case has always been provided.

Conclusion:

It was fascinating to observe arguments presented by both the defense and prosecution, especially in a case that has been in the discovery phase for five years.  I was able to understand the motions in the proceedings, as I  reviewed the case summary that is available on the Observation Project’s website and the government web site, which provides transcripts and motion history/rulings.  I learned a great deal about the matter regarding enhanced interrogation techniques, which is relevant to the defense of al Nashiri and I am curious as to how the court will approach this matter. Will the court compel a witness, like Mitchell, to testify?

I look forward to the opportunity of attending more hearings in the future, as being a student in the Masters of Jurisprudence program, it was relatively easy to understand the flow of the hearings and fascinating to how a court of law is operating in Guantanamo.

Heather Wilhelmus, MJ Student,

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

 

 

Observations from Ft. Meade: Monitoring al Nashiri’s Guantanamo Bay pre-trial hearing

I was selected to travel to Ft. Meade, Maryland to monitor U.S. Military Commission pre-trial hearings broadcast live via CCTV from Guantanamo Bay, Cuba to a secure Ft. Meade facility.  I represented the Indiana University McKinney School of Law’s Military Commission Observation Project, which has been sending faculty, staff, students, and graduates to Guantanamo Bay and Ft. Meade to monitor these war crimes proceedings.  The case I was dispatched to monitor was against Abd al-Rahim Hussein Muhammed Abdu al-Nashiri, who is alleged to have masterminded the 2000 attack on the U.S.S. Cole that killed 17 U.S. sailors, and wounded dozens more, off the coast of Yemen. I observed the hearings on October 18th and 19th.

Arriving at Ft. Meade

I arrived at Ft. Meade on Tuesday morning, October, 18 2016, and went to the base Visitor Center to pick up my badge that would permit me to enter the base.  I encountered a slight delay there, as they could not locate my badge.  After about fifteen minutes, one of the employees found the badge in a file on the front reception desk.  She informed the other employee that all of the badges for the hearings are kept in a folder at the reception desk.

Note: If you arrive at the Ft. Meade Visitor Center and they can’t find your badge, ask if it is inside a folder at the reception desk!

After they found my badge, they took my photograph and handed me a paper badge that would allow me access to Ft. Meade for two days.  The receptionist told me to exit through the left side of the parking lot and to proceed to the vehicle inspection area.  After a brisk inspection of the vehicle, I was on the base and easily found the McGill Training Center, where the hearing would simultaneously broadcast from Guantanamo Bay, Cuba.

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Justin at Ft. Meade Commissary

I parked in an apartment parking lot that is located across the street from the McGill Training Center.  I made my way into the building and to the door of the viewing room, which was like a medium-sized high school classroom.  The video feed was already being broadcast and there were four observers in the room, along with a person who I understand was a contractor hired to oversee the process.

In the back of the room is a big chest with individual small lockers where you can store cell phones.  Knowing that cell phones were not allowed to be used in the room, I had left my cell phone in the rental car.

The video was clear, and the sound quality was generally good.  At times the video feed or sound would cut out briefly but it was not often and generally only lasted for a couple minutes.  The room was very cold both days.  I would suggest that anyone observing hearings at the McGill Training Center to dress in layers and bring a light jacket.

al Nashiri Hearing Observations

Military Uniforms

I noticed that the prosecution’s military counsel, namely Chief Prosecutor Mr. Martins, wore a highly decorated uniform compared to the less decorated uniform of the Detailed Defense Counsel, Ms. Pollio.  I have some concern that a jury may be influenced, whether consciously or subconsciously, into believing that Mr. Martin is more credible or knowledgeable because he is more highly decorated than Ms. Pollio.  Although a jury may always form some judgment of an attorney’s capability or credibility by their appearance, attorneys in civilian courts do not display their achievements and accomplishments on their clothing.  al Nashiri may be prejudiced by the prosecution counsel appearing to be a higher ranked and more qualified military member.

Mr. Martin

Mr. Martin

lcdr-pollio

Ms. Pollio

 

 

 

 

 

 

 

 

al Nashiri’s Presence in Court

al Nashiri was present for most of the court proceedings on October 18th and 19th.

al Nashiri

al Nashiri

However, al Nashiri was absent for a little over an hour of the hearing on October 18th.  On October 18th, the court took a brief recess and when the court returned al Nashiri was absent. Mr. Kammen, the defendant’s civilian attorney, informed the court that al Nashiri was not feeling well and that he was in a backroom that had a video feed of the court.  al Nashiri’s counsel confirmed with the court that he voluntarily absented himself from the court proceedings.

 

The prosecution said that there was an issue with al Nashiri’s absence because there had been no in court waiver.  Specifically, Mr. Martin asked the judge to bring al Nashiri back to the courtroom until there was an in court waiver.  The judge said that he was comfortable with al Nashiri’s absence from the court because al Nashiri’s counsel, Mr. Kammen, had spoken with al Nashiri and the absence was going to be brief (approximately thirty minutes).  The judge made a finding that al Nashiri voluntarily removed himself from the court proceedings.  The hearing went for another thirty minutes or so and then the court took recess for lunch.  After the lunch recess, Al Nashiri was back in the courtroom and the judge questioned him regarding his prior absence from the court.  al Nashiri confirmed that he was previously not feeling well and that he had voluntarily left the proceedings.

I felt that the judge made great strides to ensure that the record clearly reflected al Nashiri’s absence being voluntary and uncoerced.  However, I do feel that the process would be more transparent if the video feed showed al Nashiri more often.  Because the video was generally either showing the lectern or the judge, al Nashiri was not seen on the video very often.  I would estimate that over the course of the two days I was in Ft. Meade, I saw al Nashiri on the video feed for a total of approximately ten minutes.  I would have preferred a split screen that showed whoever was speaking and also showed the defense table.  I think the public would benefit from being able to see that al Nashiri was present and engaged in his trial.

I hope we are not arguing about parking spaces

During most of the October 18th and 19th hearings, the days were spent hearing arguments regarding the defense’s claim that the prosecution may have attempted to unlawfully influence the Court of Military Commissions Review (“CMCR”).  The defense had filed a motion to compel the prosecution to release all ex parte communications.  The prosecution had put together a binder of emails, which they voluntarily provided to the judge for him to perform an in-camera review.  The prosecution claimed that the emails were administrative in nature and non-discoverable.  The prosecution further claimed privilege and judicial privilege for the emails.  The judge informed the parties that the only emails at issue were two email chains–-exhibits 355e tabs 3 and 10.  The judge stated “wouldn’t it be better for the public trust to hand them to the defense.”  The judge said that he was keeping the public trust in mind.  Many times throughout the hearing the judge asked if this was really something they wanted to spend time arguing about.  It appeared to me that that judge thought that the two emails chains were not something that the court should be spending two days hearing arguments about.

The defense’s position was that the emails must be relevant and important because the prosecution was fighting so hard to keep them out of the defense’s hands.  The prosecution seemed to be arguing that it was more about principle and that they were not legally required to turn the emails over.  In this respect it appeared that the prosecution was less concerned with the public’s interest in having an open hearing.  Although, the prosecution did argue that it was better for the public’s trust in the proceedings to follow the law and not turn over emails that are not discoverable.  Mr. Kammen retorted by stating that secrecy destroys the public’s confidence, especially in a court where the rules are constantly changing.  Mr. Kammen closed the defense’s argument by saying that he hoped that they had not spent all day arguing about emails that were related to where the prosecution was supposed to park.

The judge granted the motion, but only as to exhibit 355e tabs 3 and 10.  The judge stated that one tab is about parking and the other tab is an administrative discussion about who is going to do a security review.  The remainder of the discovery request was not granted and will stay under seal in the record.  The judge appeared to be annoyed that two days had been spent arguing over emails that were administrative and generally unimportant.  The judge stated that the emails are not privileged and not discoverable.  However, because the prosecution had voluntarily provided them to the judge for an in-camera review, he was obligated to make a decision on them.

After the decision, Mr. Martin basically stated that he did not think that the judge had the authority to order the government to turn over the emails.  The judge retorted that he was confident that he had the authority.  The judge informed Mr. Martin that he had made a decision and had the authority to do so.  He told Mr. Martin that the court was about to take a recess for lunch and that Mr. Martin should turn the emails over to the defense during the recess.  The judge also told the defense counsel to think about what remedy they would ask for in case the prosecution did not turn over the emails.  After the court returned from lunch, the prosecution turned over the exhibits 355e tabs 3 and 10, although Mr. Martin continued to argue that he did not believe that the government was required to do so.

I understand the need to follow the law.  In this case, considering that the prosecution had voluntarily provided the emails to the court, I think it was proper to release them.  If the emails were not released, it would have seriously eroded my confidence that the emails were only administrative in nature.  The prosecution fought very hard to keep the emails out of the defense’s hands, and it seemed to me that the emails likely contained ex parte communication that was not just administrative.  I was somewhat surprised when Mr. Martin agreed to turn over the emails after the lunch recess.  However, his doing so made me feel that the proceedings were more transparent and that the prosecution was not concealing unlawful ex parte communications.

Repeated Defense Counsel Complaints

Unlike an Article Three court, the defense cannot simply call anyway witnesses that they would like to question.  Mr. Kammen repeatedly stated that the prosecution must approve of any witness that the defense wishes to call.  If a person’s testimony was going to be severely adverse to the prosecution, it appears, according to Mr. Kammen’s argument, that the prosecution could deny the defense the opportunity to call that person as a witness.  This seems very unfair and it would certainly hinder the defense counsel’s ability to properly defend al Nashiri.  Additionally, the ability to keep relevant witnesses out of the courtroom significantly hurts the transparency of the proceedings.  If the Commission wishes to have transparent proceedings, all relevant witnesses should be allowed to testify.  This is the only way to ensure that the proceedings will result in a just outcome.

Another claim by the defense is that al Nashiri’s housing during the hearings is inadequate.  The defense wants to call two witnesses, both are employees at Guantanamo Bay, but the prosecution is not allowing them to call the witnesses.  At the same time, the prosecution is stating that the defense has the burden to prove the claim.  al Nashiri’s defense counsel, Mr. Kammen, complained that it is unfair for him to have the burden to prove a claim but not have the ability to call the witnesses that he needs in order to prove the claim.

Conclusion

At the end of the day, I feel that the judge was working hard to get past some of the petty arguments raised by both sides.  He came across as being very aware that the process needed to be as transparent as possible.  However, the case does not appear to be close to actually going to trial yet.  Considering that this case has been going on for 16 years, there has to be a way for the Commission to act more efficiently, while also serving justice in a fair and transparent manner.

For those who are interested in being an observer, I highly encourage you to apply.  The IU McKinney Military Commission Observation Project is a unique opportunity and has been designed to get observers up to speed quickly.  I found that the Guantanamo Bay Fair Trial Manual was very helpful for gaining an understanding of the proceedings and the background information necessary to understand the hearings.

Justin W. Jones, J.D. Candidate (2018)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University Robert H. McKinney School of Law

 

Preparing To Travel To Ft. Meade

Introduction

My name is Justin W. Jones and I am a 3L evening student at the IU McKinney School of Law. I work as an accountant, and I am also an extern at the United Staaeaaqaaaaaaaaiiaaaajdc1yjhlyjg5ltliodgtngmyys1hmdqzlwfkmmm3zdm5ymiyyqates District Court- Southern District of Indiana. I am honored to have been selected as an observer for the IU McKinney U.S. Military Commission Observation Project and look forward to contributing to the project. I am scheduled to monitor the hearing of Abd al-Rahim Hussein Muhammed Abdu al-Nashiri. My fellow IU McKinney classmate, David Frangos, has an excellent post on this blog discussing the upcoming al-Nashiri hearing (dated October 10, 2016).

As I type this post, I am currently finishing a fall break road trip with my fiancée and daughter. We are driving over 4,000 miles in nine days and have had the opportunity to see and experience many great parts of our country. Some of the highlighdsc_0084ts of the trip were Yellowstone National Park, Jackson Hole, the Badlands, and Mt. Rushmore.

While looking at Mt. Rushmore, I was reminded of a quote by Abraham Lincoln: “[A] law may be both constitutional and expedient, and yet may be administered in an unjust and unfair way.” The Military Commission Observation Project allows us to hold our government accountable for administering our laws in a just and fair manner. We owe it not only to the defendants, but also the victims and their families, the media, the prosecutors, and everyone else to ensure that our government is held to a high standard that makes us proud to be Americans. My goal is to accurately and impartially report my observations.

Schedule

I will be monitoring the proceedings in the case against al Nashiri. He is the alleged mastermind of the 2000 bombing of the U.S.S. Cole, which resulted in the death of 17 U.S. sailors. The hearing was originally scheduled to run from October 17 to October 21. I have been informed that the court has reduced the hearing down to three days, October 17-19. I will be leaving Indianapolis on October 18 and plan to arrive at Ft. Meade by 8:30am the same day. If everything occurs as scheduled, I will be able to monitor the hearing on October 18 and 19.

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         al Nashiri

I was notified that the hearing scheduled for today was delayed until the early afternoon. Further, the video feed to Ft. Meade was not working. Hopefully the IT issues will be fixed by tomorrow morning.

Preparing for the hearing

I have used the many hours I’ve spent in the car over the past week to prepare for the upcoming hearing. I have been reading the Guantanamo Bay Fair Trial Manual and the many excellent posts on this blog. I hope that my efforts are beneficial in promoting transparency in the legal proceedings that will occur this week.

I look forward to making more posts in the next couple of days.

Guantanamo Bay lawyers on all sides brief non-governmental organizations (NGOs)

9 NGO representatives following briefing by Guantanamo Bay Chief Prosecutor Mark Martins

9 NGO representatives following briefing by Guantanamo Bay Chief Prosecutor Mark Martins

Non-governmental organizations (NGOs) fly to Guantanamo Bay, Cuba for ringside seats at U.S. Military Commission war crimes proceedings. NGOs, which tend to focus on human rights issues, attend, observe, analyze, critique and report on what they see and hear at Guantanamo. NGOs are windows to the outside world for people without Guantanamo access.

For the first time in recent memory, this week NGOs at Guantanamo had separate briefings by each of the three sets of lawyers involved with a pending case against a particular defendant.

The 9 NGO representatives present were briefed by: (a) the Chief Prosecutor; (b) the Chief Defense Lawyer; and (c) the military and civilian lawyers for al Nashiri, who is accused of masterminding the 2000 bombing of the U.S.S. Cole off the coast of Yemen, killing 17 U.S. sailors and wounding dozens. The NGOs were at Guantanamo for a week of pre-trial hearings in the case of al Nashiri, who faces the death penalty.

The first lawyers’ briefing of the week was by Chief Prosecutor Brigadier General Mark Martins, who is responsible for the prosecution of any and all Guantanamo Bay detainees. He is formally part of the prosecution team against all defendants, including al Nashiri, and he actively participated at the prosecution table in this week’s hearings.

9 NGO representatives following briefing by Guantanamo Bay Chief Defense Counsel John Baker and Deputy Chief Defense Counsel Brent Filbert

9 NGO representatives following briefing by Guantanamo Bay Chief Defense Counsel John Baker and Deputy Chief Defense Counsel Brent Filbert

The next lawyers’ briefing was by Chief Defense Counsel Brigadier General John Baker, joined by Deputy Chief Defense Counsel Captain Brent Filbert.  General Baker is responsible for all defense counsel on all Guantanamo cases, and is not part of the al Nashiri defense team or of any other defense team. Neither he nor Captain Filbert has an attorney client privilege with any detainee.

The final lawyers’ briefing was by civilian and military attorneys for al Nashiri. These were civilian lead counsel (Learned Counsel Rick Kammen) and military co-counsel (Lt. Commander Jennifer Pollio).

NGOs with al Nashiri's Learned Counsel Rick Kammen and military co-counsel Lt. Commander Jennifer Pollio.

NGOs with al Nashiri’s Learned Counsel Rick Kammen and military co-counsel Lt. Commander Jennifer Pollio.

These briefings offered the 9 NGOs insights into a range of perspectives on Guantanamo law and practice. The NGOs on this mission, who agreed that these briefings were insightful and very helpful, expressed hope that the NGO briefings would continue when future NGO representatives travel to Guantanamo for future hearings.

Substance of the briefings

Predictably, the three briefings focused on similar issues. Military Commission fairness (or not). Compliance with U.S. and international law (or not). Transparency of the process (or not). Rights afforded to all stakeholders (or not). Comparisons among U.S. federal criminal law and criminal procedure, the Uniform Code of Military Justice (UCMJ), and the Military Commission substantive and procedural statute, regulations and rules (favorable / unfavorable comparisons).

The lawyers expressed different perspectives on the pace of the proceedings, to whom delays should be attributable, and logistical and other issues regarding trials at Guantanamo Bay versus on the U.S. mainland. They also shared on more personal issues, such as their careers and families, and possibilities for life for the lawyers after Guantanamo. And yes, the topics of Guantanamo iguanas, banana rats, gnats and mosquitos came up.

None of the briefings was on the record, and of course none included any classified information. All the briefings helped NGOs understand critically important matters related to the case at bar – against al Nashiri – and about larger Guantanamo-related issues.

Briefing Style; Briefing Tools

Each of the briefings differed from the others. Each lawyer had a unique personal style, had particular messages they apparently wanted to convey, and used different means to communicate with the NGOS — including visual aids.

Briefing tools used during the week included (without disclosing which lawyers used which briefing tools!): CDs that contain papers for motions on the week’s docket; basic Military Commission instruments and other information projected onto a screen and a staffer to navigate such; CD readers for NGOs whose new generation laptops lack CD drives; prepared remarks; a scribe to record briefing notes; e-mail addresses and invitations for further NGO communication; a follow-up invitation to a bar-b-que (that served Subway sandwiches!); and a staffer who served as photographer for group and individual shots of the lawyers and the NGO representatives.

[Sidebar – The NGO representatives came into contact with various members of the lawyers’ staffs. In every instance those staff members were helpful, informative, and genuinely interested in assisting the NGOs. And, without exception, each staffer was friendly, pleasant, and just nice — both formally during the briefing, and informally when we would bump into them around the Guantanamo Bay Naval Station, whether at Subway or another restaurant, the gym, the bowling alley, or the Guantanamo airport or Andrews Air Force Base.]

Conclusion

NGOs huddled during the week seeking to think of ways that the lawyers might further enhance the NGO experiences. Among the NGO suggestions were for the lawyers to provide NGOs — before the NGOs depart for Guantanamo Bay —  a short summary of the week’s expected motions, the statutory and other information on the CD that was provided, statements / remarks to be presented by the lawyers to the media (if available), and confirmation that the briefing will take place (to prevent NGOs from having to inquire as to whether a particular briefing will occur).

Some of the NGOs wondered about the venues of the different briefings, and who decided which briefings were held in which venue.

Venue 1:  The Media Operations Center (MOC), in a room with cushioned chairs, a blue velvet stage curtain, high tech audio / visual equipment, and parasol shades for camera lighting.

Venue 2:  The NGO Resource Center, barren, with the lawyers sitting on folding card-table chairs.

The NGOs unanimously agreed that the NGO briefings by all sets of lawyers were very helpful to the NGOs as they seek to fulfill their remit of attending, observing, analyzing, critiquing and reporting on the U.S. Military Commissions.

If NGOs are to be the eyes and ears to the outside world, they should be able to see and hear from the lawyers who are most intimately involved with the Guantanamo Bay cases.  The NGOs all hope that briefings by all sets of lawyers will become routine at Guantanamo Bay during weeks when hearings or trials are held.

Full NGO briefings by Guantanamo Bay lawyers promote transparency, human rights, and the rule of law.

_______

al Nashiri

Going to Guantanamo to Monitor War Crimes Hearings

The sun rises this morning at Andrews Air Force Base as we gather to fly to Guantanamo Bay.

I’m at Andrews Air Force Base again, at sunrise, heading for Guantánamo Bay, Cuba. This time I’m scheduled to attend hearings in the US military commission case against al Nashiri, who it is alleged to have masterminded the 2000 bombing of the USS Cole off the coast of Yemen, killing 17 US sailors. I’m to monitor the proceedings from an international law perspective.

The Hearings

al Nashiri has not had a hearing in 18 months. The court sessions were stayed for this period, during which time conflict and controversy has not ceased. 

The 3 days of hearings this week, if they go forward, may cover dozens of substantive issues the military judge listed on a scheduling order filed in August. It is not clear how much can be accomplished in 3 days. History has shown that during hearing weeks, often there is very little court time. Issues have often arisen, detailing hearings. 

al Nashiri

Some pre-trial issues in the pasta have related to his treatment while in CIA black sites beginning in 2002 for 4 years, where the Senate Torture Report and other sources (including al Nashiri himself) have identified the following practices against al Nashiri – waterboarding (admitted by the government), mock executions, stress positions, and threats of sexual violence against his mother.

Another issue is the length of time between 2002 when he was arrested and now, 14 years later, without his trial beginning. Numerous other issues, some pending before or decided by the military commission or by other courts, appear to stand in the way of a firm trial date in the foreseeable future. 

Human Rights Observers on this Trip

Today 9 non-governmental Organization representatives are set to travel to Guantánamo, to monitor this weeks hearings. I am representing the US Military Commission Observation Project (MCOP) which is part of the Program in International Human Rights Law of the Indiana University McKinney school of Law. We have been sending IU McKinney faculty, staff, students, and graduates to Guantánamo Bay to monitor hearings in these poor crimes trials.

Our Indiana mission includes to attend, observe, analyze, critique and report on these proceedings. We hope to promote transparency, in line with the Pentagon’s stated goal of transparency for these proceedings.

We also seek to shed light on the internationally recognized human rights that should be afforded to all stakeholders in these proceedings. Stakeholders include the defendants, who have rights and interests. Stakeholders also include the prosecution, victims and victims’ families, the media, the monitors, the military charged with operating the detention center, and many other individuals and groups.

We are producing the Guantanamo Bay Fair Trial Manual, which explores the full range of Guantanamo stakeholders’ rights and interests. 

More blog posts will be posted as we continue to monitor the hearings this week

Guantanamo Bay Hearing for USS Cole Bombing Suspect

Courtroom sketch of al Nashiri by artist Janet Hamlin. Today in court he was wearing a similar white jumpsuit.

Guantanamo Bay courtroom sketch of al Nashiri by artist Janet Hamlin. (copyright Janet Hamlin)

A U.S. Military Commission at Guantanamo Bay, Cuba has scheduled pre-trial hearings next week in the case against Abd al-Rahim al-Nashiri, who allegedly masterminded the 2000 USS Cole bombing that killed 17 U.S. sailors off the coast of Yemen.

At pre-trial hearings defense and prosecution lawyers routinely debate evidentiary, jurisdictional, logistical and other issues, and deal with matters such as what evidence will be admissible at trial, which witnesses will be called and when, whether the court possesses jurisdiction to hear the case, and what date to set for the trial to commence.

What is typical (or atypical) about the al Nashiri pre-trial hearings, about his case itself, or about his plight before other tribunals that have or could exercise jurisdiction? Is his case more complex than others?

Multiple courts have either resolved issues related to charges against al Nashiri or have sought to resolve such issue, or to exercise such jurisdiction. These proceedings appear to have extended beyond routine evidentiary, jurisdictional or logistical issues.

Though the military commission judge identified issues to be debated next week (see his 12 August 2016 docketing order below), it is unclear what will be heard. Indeed it is unclear whether the hearings will go forward. al Nashiri hearings were stayed for almost a year, and when they were set to resume in April, they were abruptly postponed until now. Though many dozens of us are gathered in Washington, DC for a post-Labor Day flight from Andrews Air Force Base to Guantanamo, the hearings can be cancelled at any moment, even after we touch down at Guantanamo Tuesday afternoon.

The stakes are high, as proceedings in different courts could result in one, more or all the charges against al Nashiri being permanently dismissed.

The USS Cole after it was attacked by suicide bombers in October 2000 in Yemen. (Photo courtesy of United States Marine Corps)

The USS Cole after it was attacked by suicide bombers in October 2000 in Yemen. (Photo courtesy of United States Marine Corps)

al-Nashiri is charged with multiple war crimes, including perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, attacking civilians, and attacking civilian objects. He faces the death penalty.

Courts’ jurisdiction

Several courts have exercised or sought to exercise jurisdiction over al Nashiri, that is, the courts have or have sought to resolve matters related to his detention or his alleged crimes.

First is the military commission itself at Guantanamo Bay. al Nashiri was picked up in 2002, held in secret CIA camps for about 4 years, taken to Guantanamo Bay in 2006, and arraigned in 2001 in a military commission. In that commission, he is charged with war crimes associated with the U.S.S. Cole and other ships. This commission is the primary court exercising jurisdiction over al Nashiri.

The D.C. Circuit Court of Appeals has also exercised jurisdiction, ruling on 30 August 2016 that it would not halt the Guantanamo commission against him. The defense had asked the appeals court stop the commission because the commission was not lawfully able to exercise jurisdiction. The appeals court chose not to decide the merits of the matter unless al Nashiri is convicted, at which time the appeals court would decide whether the commission had conducted a trial without jurisdiction.

The Court of Military Commissions Review (CMCR) issued a ruling in his Military Commission case in June 2016, and one in July.

The U.S. District Court for the Southern District of New York also has had a stake, as al Nashiri was indicted in that district but the case has not moved forward because Congress prohibited moving detainees to the U.S. for trial.

The European Court of Human Rights ruled that the government of Poland breached international human rights law when it permitted the U.S. to detain al Nashiri on Polish soil, where he was tortured. The court ordered Poland to pay al Nashiri over $250,000.

At the pre-trial hearings this week, the issue of jurisdiction will certainly arise.

al Nashiri

al Nashiri

Pre-trial Issues in his case

al Nashiri’s pre-trial hearings have touched on many issues.

Front and center recently have been jurisdictional issues, such as those discussed above handled by the DC Circuit and the CMCR, and also raised in the commissions.

Pre-trial issues have related to his treatment while in CIA black sites beginning in 2002 for 4 years, where the Senate Torture Report and other sources (including al Nashiri himself) have identified the following practices against al Nashiri – waterboarding (admitted by the government), mock executions, stress positions, and threats of sexual violence against his mother. Should a person be tried on criminal charges after being subjected to this treatment? Can any statements made by al Nashiri after such treatment be allowed as evidence in the trial against him?

Other pre-trial issues in his case or that may be raised include:

  • whether the U.S. can use as evidence the testimony of a man the U.S. killed (alleged co-conspirator Fahd al-Quso);
  • whether and to what extent the U.S. Constitution applies to al Nashiri’s military commission;
  • whether the right to a speedy trial was violated (over 13 years since al Nashiri was taken into custody and over 9 years since arriving at Guantanamo Bay — with the trial itself not commencing as of 2016 and no trial date set);
  • whether his right to humane treatment was violated (even regarding his Guantanamo housing situation – during these proceedings);
  • his right to have access to classified and other information that might be used against him at trial;
  • whether high-ranking military members engaged in undue influence;
  • the timely acquisition of defense lawyers’ security clearances; and
  • al Nashiri’s physical and mental health.

Much remains to be resolved before any actual trial is held.

At Camp X-Ray, Guantanamo Bay

At Camp X-Ray, Guantanamo Bay — George Edwards

My four 2016 summer trips to Cuba

This will be my fourth visit to Cuba in as many months, with three visits to Guantanamo Bay and one to Havana.

My first visit to Guantanamo Bay in this cycle was to monitor U.S. Military Commission pre-trial hearings in the case against Hadi al Iraqi, who is alleged to have been a high-ranking al Qaeda Iraq member, and to have liaised between al Qaeda Iraq and the Taliban. Hs is charged with various war crimes.

My Hadi al Iraqi monitoring mission was through the Military Commission Observation Project of the Program in International Human Rights Law of Indiana University McKinney School of Law. Our project seeks to attend, observe, analyze, critique and report on U.S. Military Commissions. We are producing the Guantanamo Bay Fair Trial Manual, which is used and usable by any person interested in assessing whether the rights and interests of all military commission stakeholders are being afforded to them. We are interested in the rights of the defendants. We are also interested in the rights and interests of the prosecution, the victims and their families, the media, the guards and other prison personnel, witnesses, and others.

Edwards on U Boat Crossing Guantanamo Bay - 14 August 2016 - the morning that 15 detainees were released to the UAE, bring the total GTMO population down 20 from 76 to 61

Edwards on U Boat Crossing Guantanamo Bay – 14 August 2016 – the morning that 15 detainees were released to the UAE, bringing the total GTMO detainee population down 20 percent from 76 to 61

On my second trip to Cuba this summer I was part of a delegation from the National Bar Association (NBA), which is the organization principally for African American lawyers, judges, law professors, and other legal professionals. An NBA conference was held jointly with the Cuban bar association, focusing on a wide range of U.S. interests and Cuban interests, and interests affecting both countries. The topic of Guantanamo Bay came up repeatedly in our discussions with Cuban judges, lawyers and law professors. I also gave a lecture at the U.S. Embassy – Havana.

NBA - Ambassador's Residence - law profs and deputy ambassador

NBA law professors at Residence of U.S. Ambassador to Cuba, with Deputy Ambassador

My third trip to Cuba this summer was in August for a Guantanamo media tour. When I arrived on Guantanamo at noon on Saturday, 13 August 2016, 76 detainees were imprisoned there. When I left Guantanamo at noon the next day, Sunday the 14th, only 61 detainees remained. During the darkness of night, 15 detainees were released to the United Arab Emirates (UAE). That resettlement marked a 20% drop in the Guantanamo Bay detention population over night.

NBA - Group of law professors at end

NBA law professors at Cuban lawyers collective.

Writing projects of mine I was researching at Guantanamo on that third trip include The Guantanamo Bay Reader and a contributions to The Indiana Lawyer.

This fourth trip to Cuba is to monitor the al Nashiri hearings pursuant to our Indiana McKinney School of Law observation program.

More about all of the above (and below) is available on http://www.GitmoObserver.com.

Docketing Order – Motions on the schedule to be heard

The Military Judge in the al Nashiri case on 12 August 2016 issues a Revised Docketing order, outlining the proposed program for the 3 days of scheduled hearings this week (7 – 9 September 2016). Here is that order.

Poland Seeks Assurances From United States that Al Nashiri Will Not Face Execution

500px-Flag_of_Poland.svgThe 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.

Reuters Report on the Polish Foreign Ministry Request

European Court of Human Rights Press Release, 24 July 2014

European Court of Human Rights Case of Al Nashiri v. Poland, Final, 2nd February 2015

Matthew Kubal, Indianapolis, Indiana, Tuesday, 3 March 2015

Guantanamo USS Cole Case Day 2 — Hearings To Resume April

USS Cole on 1st deployment after 2000 suicide bomb killed 17 US sailors and wounded dozens more

USS Cole on 1st deployment after 2000 suicide bomb killed 17 US sailors and wounded dozens more

Yesterday, Monday (March 2) was a very interesting day at the court dealing with Unlawful Influence and hearsay evidence in the al Nashiri case against the alleged mastermind of the 2000 U.S.S. Cole bombing in Yemen. Judge Spath ruled that a pentagon official (General Ary, retired) had exercised the Unlawful Influence over the case, and disqualified Ary from acting as “Convening Authority”, who is the person who organizes resources for the Military Commission case. The USS Cole case no longer has a Convening Authority, and Judge Spath declared that there  would be no further evidentiary hearings this week and that court will reconvene in first week of April 2015.

End of March USS Cole Session

Judge Spath addressed the next set of hearings, which happen to be scheduled to fall on the Easter holidays (first week of April). This was initially scheduled to be for two weeks but will be a one-week hearing after the Unlawful Influence “debacle”. The judge stated that in order to show that there was no pressure on him, he would truncate this April session. There is a possibility that travel to Guantanamo may be delayed to allow people to celebrate Easter, with the hearings possibly beginning on Monday or Tuesday, and extend into Saturday.

Al Nashiri’s “grooming”

There were several motions heard today, and I mention them in a separate post. I will discuss one here, related to the defendant’s “grooming”.

Mr. Rick Kammen, who is al Nashiri’s “Learned Counsel”, brought to the attention of the court the issue of al  Nashiri’s grooming. Mr. Kammen said the issue had still not been resolved and within the last 10 days, the policy had changed three times.

The prosecution said that the Joint Task Force – Guantanamo Bay (JTF-GTMO), which is responsible for the detention facilities, has endeavored to amend their Standard Operating Procedures to address this and the accused will have access to grooming before court and attorney-client meetings.

The judge added (emphasizing that this was not a ruling) that he expects that no prisoners will be in shackles in court if they don’t have to be, or in prison uniform before the members of the court, regardless of who the accused is.

It is not clear what falls into the category of “grooming”. It seems to deal with issues such as what clothes al Nashiri is able to wear to court, access to bathing facilities, haircuts, and the like. And, shackles in court also was mentioned in the context of this grooming discussion. I find myself wondering what exactly what “grooming” involves.

Whereas I am certain they must have very stringent rules on the Base, grooming  to me seems a basic right, entrenched in the right to humane treatment as espoused in domestic and international law.  The Guantanamo Fair Trial Manual considers the right to humane treatment and humane conditions of detention on page 114.

Furthermore, grooming ties in with the right to be presumed innocent, which is also covered in the Guantanamo Fair Trial Manual. The defendant’s physical appearance in the courtroom may affect the impressions of the jury, the press, the NGO Observers, the victims and their families, and others who may see the defendant. If he is dressed in “prison clothes”, appears to be unclean or unkempt, or is shackled at his hands and feet, an impression might be formed that is different than if he appeared clean and tidy wearing a 3-piece business suit.

Sunset at Girls Cout Beach,  Guantanamo Bay, Cuba

Sunset at Girls Cout Beach, Guantanamo Bay, Cuba

After hearings – The Beach & a Jamaican Dinner

The NGO Observers were taken on a short tour of several beaches on the island by a logistics specialist, Petty Officer Second Class Archie, and then had dinner at the Jerk House. I had authentic Jamaican Jerk Chicken served by a Jamaican (I think), with Jamaican reggae music playing in the background. The only thing that could have made this better is if I had saved room for dessert.

Meeting with the Prosecution; Departure for GTMO

Tomorrow (Wednesday, March 4) we will meet with the prosecution team at 2:00 p.m. and the defense team at 4:30 p.m.

We will depart Guantanamo Bay for Andrews Air Force Base at 10 a.m. Thursday.

It certainly feels like we have been here longer than three days.

The next blog will be list more motions from today, and the blog after that will deal with the life of an NGO Observer at GTMO’s Camp Justice.

(Avril Rua Pitt, NGO Observer Lounge, Camp Justice, Guantanamo Bay, Cuba, Wednesday, 4 March 2015)

 

USS Cole Case Day 1 Wrap Up: Guantanamo Bay

From the ferry crossing Guantanamo Bay, the GTMO airport where we arrived in the background.

View from the ferry crossing Guantanamo Bay, the GTMO airport where we arrived in the background.

Touch Down at GTMO

The first day we arrived at Guantanamo Bay was sobering. This side of the island is beautiful, and everyone at the Base who met us is very friendly. We arrived, went through security and got on vans to head to the Ferry. It is a short ferry ride to Camp Justice, and we had interesting conversations with other observers and different people going to Guantanamo for different purposes unrelated to the pretrial hearings. Our luggage was waiting for us when we arrived. We have all been set up in two tents; one for the men and one for women.

On Sunday, we went for dinner at an Irish restaurant. The food was everything but Irish, but I cannot judge seeing as I ordered tilapia! I found it interesting that we could not all sit together as we had not made a reservation 24 hours in advance. Yesterday (Monday, the 2nd) we switched things u and went next door the Irish place, the Windjammer, which has the exact same menu as the Irish place. Sigh.

Guantanamo Bay Courtroom from the viewing gallery, behind  the thick, bulletproof glass.

Guantanamo Bay Courtroom from the viewing gallery, behind the thick, bulletproof glass. (Photo credit: CBS News. Photo by Joe Raedle/Getty Images)

Courtroom Tour

Day 1 at Gitmo started with a tour of the Court. We were not able to go inside the actual courtroom as they had already prepared it for the session. We sat in the gallery, which is behind glass windows that have TV monitors transmitting with a 40-second delay to allow for time to censure any classified information that may be said in court.

We talked about the trial process in Military Commissions, Convening authorities and their roles, especially in light of the Unlawful Influence motion that was set to be ruled on., how juries and selected,  and went over some court rules and structure.

Court Session Begins – Victims & Family Join

We reconvened at the court at 10:30 a.m. This time we were joined by Victims and Family who sat on the opposite end of the room. In the room, we had our NGO escorts as well as some military personnel to escort us if we needed to leave the room, or if we needed anything else. One of them was actually from Indiana. Always great to meet “fellow Hoosiers”. Our escorts have been wonderful the entire time, and drive us anywhere we wish to go, including to the court a few yards away sometimes.

We were given assigned seats even though the gallery was half-empty.

Courtroom sketch of al Nashiri by artist Janet Hamlin. Today in court he was wearing a similar white jumpsuit.

File courtroom sketch of al Nashiri by artist Janet Hamlin. Today in court he was wearing a similar white jumpsuit.

From where I was in the back row, I did not see the bring al Nashiri in, but I did see him during our “comfort break”. He was in a white jumpsuit and was chatting with his team, looking very calm. At 50 years old, he certainly looks a lot younger in my opinion

Judge’s Ruling on Unlawful Influence by Marine Major General Vaughn Ary (retired)

First order of business, Judge Spath delivered his ruling on the Unlawful Influence Motion (AE 332, Defense Motion to Dismiss for Unlawful Influence and Denial of Due Process for Failure to Provide an Independent Judiciary). The Guantanamo Fair Trial Manual addresses the relevant laws on Unlawful Influence on page 63.

The judge ruled that there was an appearance of Unlawful Influence by retired Marine Major General Vaughn Ary, the Convening Authority (CA) but that because he found Ary did not act in bad faith he did not allow the defense remedies of dismissing the case (See pg. 5896 Unofficial Unauthenticated Transcript, al Nashiri, A March 2015). He further ordered that the CA and his legal advisors be disqualified from taking any further action and making any further recommendations in the case. He called for the appointment of a new CA.

There will be no further evidentiary hearings this week, and several people have mentioned that we may wrap up the sessions as early as today (Tuesday).

The judge mentioned that a ruling on a Motion 205 would be out soon, but that he had denied 205 BB (a motion to reargue) and 205 EE (a motion to supplement additional pleadings). I later learned during a briefing with General Martins that these were defense motions to seal some of al Nashiri’s medical records for privacy reasons.

More Motions

At the 1300hrs (1:00 p.m.) session, the court heard spirited arguments from both the defense and prosecution on the following motions:

  • AE 331 A – Government Motion To Amend the Docketing Order (February 2015 Hearing) To Allow The Government To Determine The Manner In Which It Presents Its Evidence Relating To The Admissibility Of Government-Noticed Hearsay And Evidence Identified In AE 207;
  • AE 319J – Defense Motion to Continue Further Hearings on the Government’s Motion to Admit Hearsay Until the Court of Military Commissions Review Renders a Final Judgment on Appeal;
  • AE 256D, Defense Motion to Strike AE 256C: Government Notice of Bill of Particulars (Defining Civilian Population as Used in Aggravating Factor #5);
  • AE 257D, Defense Motion to Strike AE 257C: Government Notice of Bill of Particulars (Defining Civilian Population as Used in Aggravating Factor #5).

Meeting with Chief Prosecutor General Martins

The session ended at about 3:30 p.m. to the public, and continued to discuss a classified Motion 505 in chambers. We met about an hour (for about an hour) later with Army Brig. General Mark Martins, the Chief Prosecutor in the Office of Military Commissions.

We went over some of the hearsay rules under the Military Commissions Act relating to some of the motions discussed in the afternoon session, and answered our questions relating not just to the USS Cole.

Meeting Carol Rosenberg

Before this meeting however, I bumped into Ms. Carol Rosenberg, a notable reporter from the Miami Herald who is known as the Dean of the GTMO Press Corps and has been reporting on Guantanamo since 2002. She said she had read my tweet, and that she knew how to adjust the air conditioning in the tents! Who knew! She later came back and showed us how to do just that. We made very minimal adjustments so as not to let any rodents in or get the tent moist and moldy. Thanks to that, night 2 was a sleeping-bag-only affair.

Tuesday’s Court Schedule

Today (Tuesday) the court session begins at 9:00 am.

Avril Rua Pitt, Camp Justice, Guantanamo Bay, Cuba, Tuesday, 3 March 2015

Going to Guantanamo – Overnight at Andrews Air Force Base

Air Force H20

Outside Andrew Air Force Base from my hotel.

I flew from Indianapolis to Washington DC to a beautiful 30 degrees. My hotel for the night is just across the street from Andrews Air force Base, where I’m to report at 6:45 a.m. tomorrow for my flight to Guantanamo Bay, Cuba to monitor the case against al Nashiri, who is charged with being a mastermind of the suicide bombing of the USS Cole in Yemen that killed 17 US sailors in 2000.

On this trip, I will be joined by ten other Non-Governmental Organization (NGO) Observers, some of whom have already expressed interest in the Guantanamo Bay Fair Trial Manual, that we at the Indiana University McKinney School of Law have been researching and writing.

Flying to DC

My trip was uneventful, save for the look on all who tried to lift my carry-on luggage containing the Manuals, which at this point are in two Volumes, totaling over 400 pages. More about the Manuals later.

On my flight from Indianapolis there was an ‘interesting’ conversation going on behind me. I was sitting in front of the loudest three on this very small plane. Their conversations spanned from blue-collar job variations by state, Hoover Dam documentaries, Benghazi and then, Guantanamo! I held my breath.

Their biggest and only complaint was that US taxpayer money was paying for top-notch medical care “for those 9-11 prisoners down there in Cuba” while people here cannot afford it.

The pilot came on the intercom, and voices behind me were lowered for the remainder of the flight. I am still a little shocked that three people on that small plane going from Indiana to the East Coast would talk about Guantanamo Bay, on the eve of my first trip to that U.S. detention center on a remote Caribbean Island.

Preparing for my mission to Guantanamo Bay, Cuba

As an NGO observer, I am tasked with evaluating whether the all stakeholders are being afforded the rights and interests to which they are entitled through the Military Commission process. Yes, I will be examining rights of the defendants. Also I will examine rights of victims and their families, rights of the prosecution, rights of the press, and rights and interests of others who have a stake in the proceedings.

To help prepare for this mission, I have familiarized myself with the Guantanamo Bay Fair Trial Manual, which at this point I find to be of ‘biblical’ importance. As I mentioned, it is now in two Volumes. Volume I is the main body of the Manual, and identifies the international and domestic U.S. law that governs the Military Commissions. It provides a good idea of what a fair proceeding should look like, so that NGO Observers will have a good point of reference. It also contains a number of extensive, comprehensive “checklists” that Observers can use to give an idea of what to look for when they are observing.

Volume II contains the Appendices, which include hard copies of many important legal documents, such as parts of the Military Commission Act, Rules of Procedure, and International Documents, including parts of the Geneva Conventions.

Both Volumes have been instrumental in helping me prepare for my role as an observer. I have done background readings on blogs from other participants who have attended the hearings, as well as from the Military Commission Website and other resources. The Gitmo Observer Blog also contains Briefing Books under Research and Resources, which have been very helpful in orienting myself with the details of the hearings.

March 2 – 6 Hearings

Vaughn Ary - https://www.linkedin.com/pub/vaughn-ary/3b/644/b7

Retired Major General Vaughn Ary

This week, the al Nashiri court dealt with Unlawful Influence (AE 332, Defense Motion to Dismiss for Unlawful Influence and Denial of Due Process for Failure to Provide an Independent Judiciary). See Alleged Unlawful Influence over Guantanamo Bay Judges.  It is argued that a high ranking military official, retired Marine Major General Vaughn Ary, engaged in “unlawful influence” over the judges of the Military Commission by ordering them to relocate to Guantanamo Bay to help speed up the proceedings.

The defense argued that no military official should be able to order a Military Commission judge to take such actions, since the judges are supposed to be free from outside influence.

The Learned Counsel for al Nashiri’s made a statement about who “can be trusted to act impartially” (Pentagon scraps judges’ Guantánamo move order; 9/11 case unfrozen, Miami Herald). The order of Major General Ary was reversed at the end of this past week, after Ary testified from the Pentagon.

Motions scheduled to be argued next week while I am present as per the second amended Docketing Order are:

  • AE 334 – Defense Motion for Appropriate Relief to Allow Mr. AI Nashiri to Groom Prior to Court Sessions and Meetings with his Defense Team.
  • AE 272D – Government Motion for Reconsideration and Clarification of AE 272C- Ruling- Defense Motion for Appropriate Relief: Inquiry into the Existence of a Conflict of Interest Burdening Counsel’s Representation of the Accused Based on Ongoing Executive Branch Investigations;
  • AE 331 A – Government Motion To Amend the Docketing Order (February 2015 Hearing) To Allow The Government To Determine The Manner In Which It Presents Its Evidence Relating To The Admissibility Of Government-Noticed Hearsay And Evidence Identified In AE 207;
  • AE 319I – Defense Motion to Continue the Evidentiary Hearings Related to AE 166 et seq and AE TI 9 Until Preliminary Matters are Resolved;
  • AE 319J – Defense Motion to Continue Further Hearings on the Government’s Motion to Admit Hearsay Until the Court of Military Commissions Review Renders a Final Judgment on Appeal;
  • AE 328 – Defense Motion for a Fair Hearing on the Admissibility of Evidence as Noticed in AE 166 and AE 166A; 3 (8) AE 319F, Defense Motion to Compel Discovery Related to AE166/166A/166B and Seeking Further Appropriate Relief;
  • AE 319G – Defense Motion to Compel Witnesses to Testify at the Hearing on AE166/166A/166B/319;
  • AE 256D, Defense Motion to Strike AE 256C: Government Notice of Bill of Particulars (Defining Civilian Population as Used in Aggravating Factor #5);
  • AE 257D, Defense Motion to Strike AE 257C: Government Notice of Bill of Particulars (Defining Civilian Population as Used in Aggravating Factor #5).

Tomorrow (Sunday), we are scheduled to leave for Guantanamo from Andrews. I plan to post again once I cross the street and enter the base.

I look forward to meeting the other NGO observers.

Aside from the hearings, all that is ringing in my head is ‘banana rats’ – these animals that are supposedly running around pretty freely on Guantanamo Bay. They say that they have to keep the temperature in our GTMO tents very low to keep these rats out at night.

Also, I hear there is a Jamaican shack with the best food on the GTMO base!

Seriously, I am very keen on furthering the goals of the Indiana University Military Commission Observation Project, which include to attend, observe, analyze, critique and report on the Military Commissions. This is a very important project that I believe serves all stakeholders in the Military Commission process.

Avril Rua Pitt, Across the Street From the Andrews Air Force Base Entrance, 28 February 2015

Guantanamo NGO Observers from IU McKinney Law School Featured in Indiana Lawyer

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)

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 Indiana Lawyer published the following article by Marilyn Odendahl on 25 February 2015. Text and photos are in the original article.

IU McKinney Gitmo Observers Illuminate Murky Proceedings in Gitmo Trials

by. Marilyn Odendahl (25 February 2015)

      The U.S. Military Commission Observation Project overseen by Indiana University Robert H. McKinney School of Law is continuing to send individuals to watch and report on the accused terrorists’ trials being held at Guantanamo Bay. Blog posts and articles from the observers chronicle the glacial pace of the proceedings, the unexpected courtroom twists and the nagging constitutional questions.

Professor George Edwards

Professor George Edwards

The project regularly sends faculty, students and alumni to either Guantanamo Bay or Fort Meade in Maryland to observe the tribunals. Professor George Edwards, founder and director of the project, explained the work of the observers is not to address the political issues or comment on the substance of the military commissions.

“We’re interested in seeking to assess whether the stakeholders are receiving the rights and interests that are afforded to them,” Edwards said. “(Those rights) include the right to a fair hearing, the right to an independent tribunal, the right to trial without undue delay.”

He pointed out the observers also are looking at the stakes that the victims of the terrorists attacks and their families have in the proceedings. What about their rights to have access to the trials, to make statements, to confront and to have closure?

Professor Catherine Lemmer

Professor Catherine Lemmer

IU McKinney librarian Catherine Lemmer, who Edwards described as instrumental in helping to build the observation program, heard some victims’ voices when she traveled to Guantanamo Bay for the hearings of the alleged co-conspirators of the Sept. 11, 2001, attacks.

One man said he was attending the proceedings to remind the judge and attorneys that planes had flown into the twin towers of the World Trade Center and the Pentagon. A mother of a fallen firefighter said she was struggling to hang on to her opposition to the death penalty, but she believed the trials had to be fair because the United States would be judged by how it handles the detainees.

The project drew praise from panelists who participated in a recent forum at the law school examining the tribunals. Hosted by the Indiana International & Comparative Law Review, the symposium brought together legal scholars from IU McKinney and around the country to discuss whether the end is coming for Guantanamo Bay or if the practice of international criminal law has reached a turning point.

An IU McKinney symposium examined trials at Guantanamo Bay. Panelists included (from left): Richard Kammen, Kammen & Moudy; Shahram Dana, The John Marshall Law School; George Edwards, IU McKinney; and Paul Babcock, editor-in-chief of the Indiana International & Comparative Law Review. Chris Jenks of Southern Methodist University Dedman School of Law participated via video link. (Photo by Dave Jaynes, courtesy of IU McKinney Law)

An IU McKinney symposium examined trials at Guantanamo Bay. Panelists included (from left): Richard Kammen, Kammen & Moudy; Shahram Dana, The John Marshall Law School; George Edwards, IU McKinney; and Paul Babcock, editor-in-chief of the Indiana International & Comparative Law Review. Chris Jenks of Southern Methodist University Dedman School of Law participated via video link. (Photo by Dave Jaynes, courtesy of IU McKinney Law)

Two participants – Shahram Dana, associate professor at The John Marshall Law School and Chris Jenks, assistant professor at Southern Methodist University Dedman School of Law – on the second panel discussion both noted IU McKinney’s effort in documenting the proceedings at Guantanamo Bay is shining a light on America’s response to terrorism and will be an invaluable resource for history.

Lemmer advocates for the proceedings to be shown on C-SPAN. The American public should see for themselves, she said, so they form their own opinions. By seeing what is happening in that courtroom, she said it is easy to realize how things could go wrong.

“The role of the attorneys, our role (as citizens) is to hold fast to the Constitution when really bad things happen and everybody wants to step over it,” Lemmer said. “Ultimately, the price we pay for not doing it right is incredible. This is our Constitution and it is getting overwhelmed, which should not happen.”

Lemmer took her first trip to Guantanamo Bay in December 2014. However, the proceedings were derailed by the ongoing revelations that the Federal Bureau of Investigation may have infiltrated the defense teams. The FBI is accused of listening to defense attorneys’ meetings with their clients and reviewing their correspondence as well as attempting to turn legal team members into informants.

When she returned in early February 2015, the FBI conflict-of-interest issue was still being argued. Then unexpectedly, Ramzi Bin al-Shibh, one of the defendants in the courtroom, said he recognized his interpreter as someone he encountered during the period he was held at one of the Central Intelligence Agency’s secret prisons. Another defendant told his attorney he also remembered the interpreter from the black site.

“It became very surreal,” she said.

To Indianapolis defense attorney Richard Kammen, the confusion and conundrums that swirl around Guantanamo Bay could be resolved by moving the proceedings to federal court. Kammen, lead counsel for USS Cole bombing suspect Abd al-Rahmin al-Nashiri, pointed to the hearings of accused Boston Marathon bomber Dzhokhar Tsarnaev as an example that U.S. courts can handle high-profile terrorism cases.

“There’re so many more moving parts down there than there would be in federal court, so things just get more messed up,” he said.

Currently, Kammen and his defense team are tangling with the federal government to release the details of the treatment of al-Nashiri while he was kept in a black site. The release of the CIA Torture Report publicly confirmed that the defendant had been physically, psychologically and sexually tortured, but Kammen said the defense still needs details of what was done and when.

Professor Tom Wilson

Professor Tom Wilson

IU McKinney professor Lloyd “Tom” Wilson is scheduled to observe the al-Nashiri proceedings during his first trip to Guantanamo Bay. The task of watching and relaying what is happening will be difficult, he said, because he will be seeing just a snapshot of a long, complex and secretive process.

Wilson was careful in his preparation for the trip, not wanting to form any preconceived ideas or prejudices before he arrived in the courtroom. He is going out of a sense of civic duty and to understand the situation better than he does now.

Still, the proceedings are not easy to comprehend and continue to spark debate many miles away from the detention camp.

As part of his remarks during the IU McKinney symposium, Kammen described Guantanamo Bay as a “law-free zone.”

Co-panelist Jenks countered that characterization, arguing traditional rules governing the treatment of prisoners of war have been upended by terrorism. In previous conflicts, nation states battled each other but now the United States is fighting against groups that are unconnected with any organized government or country. Even so, he continued, the detainees at Guantanamo Bay have a right to counsel and are being given a trial.

Kammen responded that even if his client is acquitted, he will not be released.

“That,” Kammen said, “is a law-free zone.”

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The original Indiana Lawyer article can be found here:  http://www.theindianalawyer.com/iu-mckinney-gitmo-observers-illuminate-murky-proceedings-in-gitmo-trials/PARAMS/article/36436