Andrews Air Force Base

Monitoring 9/11 Hearings at Guantanamo Bay & Ft Meade — Stakeholder Rights

9/11 lead defendant Khalid Shaik Mohammad, in the Guantanamo Bay courtroom. (Sketch by Janet Hamlin)

9/11 lead defendant Khalid Shaik Mohammad (KSM), in the Guantanamo Bay courtroom. KSM was waterboarded 183 times in 2003.* (Sketch by Janet Hamlin)

I am scheduled to monitor Guantanamo Bay military commission proceedings in the case against five alleged masterminds of the 9/11 airplane attacks on the World Trade Center and the Pentagon. The lead 9/11 case defendant is Khalid Shaik Mohammad (KSM).

First, I will travel to Ft. Meade, Maryland, where Guantanamo Bay courtroom proceedings are simultaneously transmitted by secure video link. Then, I will travel to Guantanamo Bay, Cuba, where I will be in the courtroom itself, with the judges, defense, prosecutors, media, victims and their families, and the 5 defendants. These hearings, scheduled for 9 – 21 February 2014, will address pre-trial legal issues. The trials may not begin until 2016 or later.

Monitoring Guantanamo Bay trials

The Pentagon has said it wants military commissions to be open and transparent. They want Guantanamo Bay trials to be fair, and they want independent outsiders to monitor the proceedings and assess this fairness. This is consistent with the U.S. statutory requirement that these proceedings shall be publicly held, and that they operate in accordance with international and domestic law mandates for open and fair trials.

The Pentagon selected a handful of non-governmental organizations to send monitors to Guantanamo Bay. In 2014, the Pentagon granted NGO Observer status to the human rights program I had founded at Indiana University McKinney School of Law. I then founded our Military Commission Observation Project (MCOP), which has morphed into The Gitmo Observer.

Gitmo Observer missions include to attend, observer, analyze, critique and report on Guantanamo Bay proceedings. Numerous IU McKinney observers have traveled to Ft. Meade and Guantanamo Bay to monitor proceedings, and have published on their observations. Also we are publishing the Guantanamo Bay Fair Trial Manual, which examines rights and interests of all stakeholders of the proceedings. The Guantanamo defendants have rights and interests. But other stakeholders also have rights and interests. These stakeholders include the prosecution, victims and their families, witnesses, and the press. The Guantanamo Bay Fair Trial Manual identifies the binding international and domestic law that provides for these rights and interests, and guides stakeholders as to which rights and interests they are entitled, and discusses enforcement and remedies.

Issues February 9/11 hearing

All the issues docketed for the February 9/11 hearings deal with stakeholder rights, principally pre-trial and trial rights of the defendants. They also include U.S. government rights related to national security, rights of female Guantanamo Bay guards to freedom from employment discrimination based on sex, and rights of the international community regarding U.S. compliance with international law.

Listed below are some of the rights issues scheduled for debate this 2-week session, as listed here in the Amended Docket of 26 January 2015:

Right to trial without undue delay (“inordinate” delays of the proceedings)
Rights related to mental competency of a defendant to stand trial
The right to counsel (right to not have the FBI interfere with a defendant’s defense team)
Conflict of interest rights
U.S. national security rights and interests
Access to information (discovery, classified information rights, use of information from undisclosed sources)
Rights of female guards to perform same duties as male guards regarding, for example, shackling and escorting defendants (employment discrimination)
Right to free exercise of religion (male Muslim defendants being touched by female guards)
Right to counsel (defendants not meeting with lawyers because of female guards touching them)
Right to trial by an independent tribunal (with no unlawful interference or influence)
Right to non-interference with professional judgment of the defense lawyers (right to counsel)
Rights related to torture and access to information (Senate report on torture)
Right to conditions of pre-trial confinement (including privacy rights, intrusive searches)
Right to access to the outside world (defendants’ telephonic access to families)
Right to facilities to prepare a defense (including access to computers)
Right to access to witnesses
A defendant’s right to access representatives of his government
Rights under the Geneva Conventions
Rights under the U.S. Constitution

The 26 January 2015 docketing order can be found here.

IU McKinney Affiliates traveling to Guantanamo Bay in February 2015

Professor Catherine Lemmer, IU McKinney School of Law

Catherine Lemmer, who is a lawyer and international librarian at the faculty of Indiana University McKinney School of Law and who has played instrumental roles in the development of the Gitmo Observer, is scheduled to travel to Guantanamo Bay for 9 -13 February hearings. She was at Guantanamo Bay in December 2014 for hearings in that same case. Professor Lemmer has played instrumental roles as library liaison to the Gitmo Observer, and as a developer of the Gitmo Observer website, briefing materials, and project policies. She has also undertaken to help develop the NGO Observer Library, which will be a functioning resource center for NGO Observers to use while they are on missions to Guantanamo Bay to monitor hearings.

Tom Wilson, who is a lawyer and law professor at the IU McKinney School of Law, is scheduled to travel to Guantanamo Bay during the week of 23 – 27 February 2015 to monitor the case against al Nashiri, who is alleged to have masterminded the 2000 suicide attack against the USS Cole, a U.S. Naval ship that was docked off the coast of Yemen, and that killed and wounded numerous U.S. sailors.

Professor Wilson, in preparing for his first mission, will be posting his preliminary observations on the Gitmo Observer blog very soon!

Are you interested in travel to Ft. Meade or Guantanamo Bay?

IU McKinney School of Law students, faculty, staff and graduates are eligible to be considered for travel to Ft. Meade and Guantanamo Bay through the Gitmo Observer. Registration forms are available on our website.

IU McKinney Law School Dean Andy Klein is expected to travel to Ft. Meade, Maryland to monitor military commission trials during the Spring 2015.

*Khalid Shaik Mohammad’s waterboarding is widely reported, including in the Miami Herald, which cites Justice Department and CIA reports

Chuck Dunnlap & George Edwards - 31 October 2014 - With Guantanamo Bay Fair Trial Manual Draft - Stacks

Professor George Edwards (left) with Chuck Dunlap, and IU McKinney graduate who traveled to Guantanamo Bay and Ft. Meade, sitting behind Guantanamo Bay Fair Trial Manuals Mr. Dunlap delivered to Guantanamo Bay (Fall 2014)

(Gitmo Observer Post by George Edwards)

Andrews Air Force Base – Ready to Depart

Boarding Pass - Andrews to GTMO - Catherine Lemmer - 12 December 2014

My Boarding Pass for the Andrews to Guantanamo Bay flight.

Sunrise at Andrews Air Force Base

Arrived at 5:30 am and waited in the very dark parking lot at Andrews Air Force Base until our escort arrived and took us to the terminal. Stood in line, checked my bag, and got my ticket. It is a little surreal – there are a few military personnel and families awaiting transfers but most everyone in the departure lounge is headed to Guantanamo Bay – yet there are periodic announcements about what to do if there is unattended baggage and actions to take in the event of an active shooter situation.

Now just hanging out in the departures lounge and talking with a wide variety of people. I’ve chatted with a reporter from The Daily Beast, a local independent D.C. newspaper, and two reporters from Germany. I asked the two reporters from Germany what impact, if any, the release of the Torture Report had in Germany. It is safe to say that the reputation of the United States has suffered immensely, especially in Germany where the Torture Report follows closely on the NSA “listening” scandal.

Coffee & Guantanamo Bay Fair Trial Manual Distribution

I’ve met a few of the other NGO observers and now am off to find a coffee and introduce myself to others. We have got a few hours before departure!

High on my priority list is to distribute copies of our Guantanamo Bay Fair Trial Manual to the other NGO representatives. I hope to get good feedback from them as to how to improve the Manual for future Observers and others interested in exploring the issue of fair trials at Guantanamo Bay.

(Posted by Catherine Lemmer)

Arrival at Guantanamo Bay Naval Station (GTMO) – Hattie Harman

GTMO - Air Miami - IMG_1085 - Hattie Harman - 16 November 2014

My Air Miami plane parked at Guantanamo Bay air field after arriving from Andrews Air Force Base.

[Gitmo Observer staff posted this item for Ms. Hattie Harman because she had no internet access at Guantanamo Bay to post this herself.]

After a very pleasant flight, I arrived at GTMO a little after 1:00 p.m. today (Sunday). In addition to the contingent of NGO observers, press, and defense, prosecution, and judicial personnel, passengers on the flight included several “regular” military travelers to the Naval Station (i.e., military personnel with no involvement in the legal proceedings against the detainees but traveling to GTMO on other military business). The flight included a movie (Spiderman 2), a hot meal (choice of lasagna or chicken), and hot towel service. It was reminiscent of air travel in the 1980s!

After Arrival

We were busy all afternoon getting badges for access to the court areas, obtaining supplies at the Naval Exchange, and doing a lot of waiting. Despite the warnings of recent Gitmo Observer travelers, I expected more from the Internet here. My attempt to purchase (at the cost of $150.00) wired Internet access from the NGO “internet cafe” was foiled for my lack of a proper adapter.

I was able to make it into “town” at 7:00 p.m. to a location that reportedly had wireless Internet access only to find it was not functioning. Not only am I presently unable to post to the Gitmo Observer Blog, I am without any access to email or any other Internet-dependent mode of communication. There is of course no cell phone service either. We’ll see what tomorrow brings on the communication front.

Hearings Commence Tomorrow, Monday, November 17

In the morning, I expect to be escorted along with the other NGO observers to the courtroom in advance of the 9:00 a.m. commencement of this set of pretrial hearings in the United States’ prosecution of abd al Hadi al-Iraqi. Hadi is accused of several crimes arising out of his alleged role as an al Qaeda commander in Afghanistan during the post-9/11 period. Four motions are scheduled to be heard in this three-day session.

PS: For access to the Guantanamo Bay Fair Trial Manual, click here.

Departure for Guantanamo Bay Naval Station (GTMO) – Hattie Harman

NGO Observers studying the Guantanamo Bay Fair Trial Manual. At Andrews Air Force Base waiting for our flight to Guantanamo Bay.

I flew from Indianapolis to Washington National Airport yesterday afternoon, in preparation for this morning’s departure to GTMO. Through the gracious hospitality of old friends, I had a lovely place to stay for the night and was driven to the Andrews Air Force Base Visitor’s Center at 5:30 A.M. Non-governmental organizations (NGOs) such as the Gitmo Observer (of Indiana University McKinney School of Law) tend to have very meager budgets, thus most – if not all – of our representatives’ travel expenses are borne by the individual observer. I must thank Spike Bradford, Jill Keesbury, and their son Angus for picking me up at National Airport, putting me up for the night, and driving me to Andrews at the crack of dawn. They are true friends indeed.

Pre-departure Discussions

In addition, my hosts provided very stimulating pre-trip conversation. Spike works for the D.C. area-based Pretrial Justice Institute, a nonprofit organization promoting safe, fair, and effective pretrial practices nationwide.

As the proceedings I will be observing this week at GTMO – those of Abd al Hadi al-Iraqi – are in the early pretrial stages, Spike offered me some perspective for comparison to U.S. domestic criminal courts. To me, the most stark comparison was between the different lengths of pretrial detention. In typical domestic United States criminal jurisdictions, the accused must be charged with a crime within 48-72 hours of arrest or detention, and then has the right (which he or she may choose to waive) to be brought to trial within a particular time limit. See, e.g., Ind. Rule Crim. Procedure 4(B) (affording accused the right to move for a trial within 70 days). In addition, the U.S. Constitution guarantees the right of the accused “to be informed of the nature and cause of the accusation” and importantly provides that “the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amd. VI (emphasis added). The accused al Qaeda commander Hadi al Iraqi, whose proceedings I will observe next week, was first brought to GTMO in 2007 after being held by the CIA. Hadi was first charged with a crime in 2013.

Andrews Air Force Base

Arrival at Andrews

When I arrvied this morning at Andrews Air Force Base, I met several other NGO observers who will be attending this week’s hearings. One, a representative of the American Bar Association Criminal Justice Section, was already familiar with the work of The Gitmo Observer. I distributed copies of the Guantanamo Bay Fair Trial Manual to the NGOs and it was well received. Many other passengers continue to arrive at the Andrews terminal and are checking in for today’s flight, which is scheduled to depart for GTMO at 10:00 a.m.

Departing Indianapolis for Guantanamo Hearings – Hattie Harman

The things I CAN’T forget to take to GTMO!

Tomorrow (Sunday) I will fly from Andrews Air Force Base to Guantanamo Bay Naval Station, Cuba to observer next week’s pretrial hearings in the U.S. prosecution of alleged al Qaeda commander Abd al Hadi al-Iraqi (17 – 20 November 2014). I will be transporting several updated draft copies of the Guantanamo Bay Fair Trial Manual to distribute to other non-governmental observers (NGOs).

Visit to International Criminal Law Class

Last evening, I had the good fortune to be a guest in Professor George Edwards’ class in International Criminal Law at the Indiana University McKinney School of Law. Professor Edwards, with help from students and others, has drafted the Guantanamo Bay Fair Trial Manual for use NGO observers and anyone else interested in determining whether stakeholders are getting a fair trial. I cannot thank Professor Edwards and his students enough for preparing the Manual and for welcoming me to their class. The Manual has been an indispensible part of my preparation, as it contains a trove of information about the treaties, U.S. laws, and regulations governing proceedings under the law of war, and international human rights law, and it also identifies the various stakeholder groups in these proceedings, all of whom have rights under these laws, treaties, and regulations.

Making Connections – Theory to Practice

I am an attorney by profession, and my work involves primarily appellate review of both criminal and civil substantive law issues. Issues of procedure and particular rights arise from time to time but are by far most of my work involves more substantive questions such as, “Was a particular piece of evidence properly admitted?” and “Did the trial court properly apply the existing case law in instructing the jury?”. The rights issues I deal with are typically secondary to the substantive law questions. Further, to the extent I deal with rights issues in practice, these issues relate almost invariably to the rights of the criminal defendant. Therefore, participation in this MCOP project requires me to shift my legal mindset and approach the proceedings from a very different perspective.

I have no previous experience in international law so of course the Guantanamo Bay Fair Trial Manual is extremely informative. But I found my visit to last night’s class was absolutely essential in helping me to make connections between the Manual’s exposition of human rights law procedures and the application of these rights to the stakeholders in practice. The students and Professor Edwards were able to help me focus on my role to assess whether the proceedings are delivering the rights to which each stakeholder is entitled, not what substantive law is at issue in the particular case.

Headed to Gitmo – Chuck Dunlap

Chuck Dunlap's Boarding Pass - Andrews Air Force Base to GTMO - 3 November 2014

Chuck Dunlap’s Boarding Pass for his flight from Andrews Air Force Base to GTMO – 3 November 2014

Chuck Dunlap arrived at Andrews Air Force Base around 6:00 on the morning of Monday, 3 November 2014 for his flight to Guantanamo Bay, Cuba to monitor the U.S. Military Commission hearings in the case of al Nashiri, an alleged mastermind of the 2000 suicide bombing of the U.S.S. Cole off the coast of Yemen.

Mr. Dunlap had difficulty posting a post this morning, so we are re-posting his Andrews’ photos. He will post again upon his arrival at GTMO later today.

At Andrews Air Force Base. This is the chartered plane that will take Chuck Dunlap from Andrews to GTMO today.

This morning, Mr. Dunlap reported “We had a brief delay waiting for VP Biden’s plane to leave.” So, they were expected to arrive at Guantanamo Bay later than expected.

My First Afternoon at Guantanamo Bay (Jeff Papa)

Jeff Papa - At Camp Justice - GTMO - 14 September 2014

“Camp Justice” is the name of the barracks-like Tent City where NGOs are housed at Guantanamo Bay. Immediately to my left, out of the camera’s view, is the court house complex.

Andrews Air Force Base – Early Sunday Morning

The military instructed us to arrive at Andrews Air Force Base no later than 0630 this morning for our 10 am flight to Guantanamo Bay, Cuba.

There was some confusion since the address given for the Andrews Visitor Center was apparently wrong. Several of the nine Non-Governmental Organization (NGO) representatives traveling with us arrived at the Andrews main gate, and got turned back. One of our escorts arrived at 6:30 and transported us to the air terminal on the base.

Flying to Guantanamo

As those familiar with the GTMO process know, the planes to Guantanamo contain many different categories of participants, including the presiding officers, defense counsel, prosecution, victims’ family members, NGO representatives, and the media. Today was no different. We met several of these people, including Carol Rosenburg of the Miami Herald who routinely covers GITMO proceedings (she mentioned Indiana’s own Justice Steve David, who served here previously).

The flight to Guantanamo was a little over three hours. The weather on arrival was perfect – blue sky and temperatures in the 80s.

This is my bed for the next few days at Guantanamo Bay. They keep the tents very cold to discourage insects, banana rats and iguanas.

This is my bed for the next few days at Guantanamo Bay. They keep the tents very cold to discourage bugs, banana rats and iguanas.

We took a ferry from the airfield across the bay to the main base area and were escorted to our quarters – barracks-like tents kept ice cold to discourage bugs, banana rats and iguanas from intruding.

No more WiFi.

Unfortunately, a change in access now prevents non-military persons (like the NGOs) from accessing WiFi in the area where our tents are. No mainland U.S. wireless carriers function here. We also have no access to Cuban carriers.

We received photo identification badges that give us access to the courtroom. We then visited the Navy Exchange store for supplies. Still no WiFi was available.

We finally found a restaurant with extremely slow WiFi some distance away – but too slow to upload or download much more than email (thus no photos with this posting, at least not today).

front cover - Guantanamo Bay Fair Trial Checklist

Front cover of Guantanamo Bay Fair Trial Checklist. It has been well-received at Guantanamo Bay.

Sunday Afternoon Business

Prosecution and defense counsel met with the judge this afternoon to review the schedule for this week’s hearing. It is rumored that tomorrow’s hearing may start late as defense counsel is transitioning and the accused, Hadi al Iraqi, has not yet met the incoming counsel.

Guantanamo Bay Fair Trial Checklist a “Must Have”

The newest draft of the Guantanamo Bay Fair Trial Checklist prepared by Professor George Edwards and his law students at the Indiana University McKinney School of Law has been well-received by the other NGO representatives (a very diverse group). I believe the Checklist is quickly becoming the “must have” guide for NGOs observing GITMO proceedings.

NB: Update just in… Hearings will not begin until 1300 hours tomorrow (Monday afternoon, instead of 9:00 in the morning as scheduled). And a few photos made it through the slow internet connection.

Jeff Papa - Camp Justice Sign - long one -- GTMO -- 14 September 2014

Another view of the front of Camp Justice.

Arrival at Guantanamo Bay – 3rd August – Qifan Wang

Sign at the GTMO Office of the Military Commissions Expeditionary Legal Complex

Arrival — NGO Observers Meet

Our flight from Andrews Air Force Base was delayed and we finally arrived at Guantanamo Bay around 2:45 p.m. on Sunday.

Soon the NGOs all met and we got familiar with each other and shared some ideas about the upcoming hearings in the al Nashiri case which we will be observing.

Motions of the Week

We have a copy of the docketing order and it lists some motions that will be heard. One of the emotions is about the issue of ex post facto. That is a defendant cannot be charged for behavior that happened before there was a law against it. Crimes cannot be made up and charged after the behavior happens. If the logic stands, all defendant’s conduct shall be barred from prosecution. On the government’s side there may be a necessity argument considering the gravity of the crime, the difficulties for investigation and collection of evidence, and so on.

At this moment I could not predict how the judge would rule or even explain this issue. The only impression I’m having is that it’s another hard decision to be made. We’ll see soon.

GITMO Pre-departure Impression – Qifan Wang – August 2 2014

I arrived at DC early in the morning. The flight from Indianapolis to DCA took less than two hours. It was Saturday morning thus the traffic was very smooth. The hotel I’m staying tonight is very close to the Andrews Air Force Base. Tomorrow morning the observers are suppose to get to the base before 630. So it’ll really another day starting early.

I review the travel documents and the procedure to be followed tomorrow. And also I check the MC website again for updates. However there’s nothing new released. Till now everything is basically set and I’m really heading GITMO!

Hearing Motions 16 – 17 June–By Megan Alvarez

After receiving the documents corresponding to the hearings for the week of June 15th, I was anxious to review them. I sat down this morning to look over them, and now, I am ready and excited about next week.

The hearing next week is about FBI contact with a Defense Security Officer (DSO officer) and whether it creates a conflict of interest for defense counsel. Regardless of how the judge decides to proceed in this matter, it is concerning to me that the government seems to be uninterested in the way its actions are perceived or the effects they may cause. This contact could lead (more…)

Training to Monitor Trials at Guantanamo Bay

MCOP - Pre-Departure - 11 April 2014 - Classroom shot

IU McKinney Law Affiliates During Briefing to Monitor Guantanamo Bay trials. Some in the photo are members of Professor Edwards’ Spring 2014 International Law class that studied the international law aspects of the 9-11 attacks, other crimes, and jurisdiction to try such crimes.

Guantanamo Bay Briefing

This photo is the of first group of Indiana University McKinney Law School Affiliates to be part of a Pre-Departure Briefing for monitoring US Military Commission hearings.

The Pentagon awarded IU McKinney’s Program in International Human Rights Law (PIHRL) special “NGO Observer Status” permitting the PIHRL (pronounced “Pearl”) to send IU McKinney Affiliates (students, faculty, staff and graduates) to monitor hearings at Guantanamo Bay, Cuba or at Ft. Meade, Maryland. The training of this first group took place in Indianapolis at the law school on Friday, 11 April 2014.

The MCOP Briefing Book — About 2000 pages on Military Commission law and practice. Participants were also provided copies of the 1949 Geneva Conventions and the Protocols Additional.

In the picture are four IU Affiliates who traveled to Ft. Meade in April for hearings in the 9-11 World Trade Center bombing case and the 2000 U.S.S. Cole bombing case. Also pictured are two IU Affiliates who traveled to Guantanamo Bay for hearings in both those cases in April.

Mr. Rick Kammen (center of photo with jeans and light top), who is a lawyer for defendant al Nashiri in the USS Cole Case, lectured on the history of U.S. Military Commissions, substantive and procedural law related to the Guantanamo Bay Military Commissions, litigation strategies, and the logistical difficulties associated with trying cases at a base on an island, away from the Mainland U.S.

Those pictured whose mission was to Ft. Meade are Jeffrey Kerner, Jeff Papa, and Hattie Harman.

Judge Pat Riley (Indiana Court of Appeals) is pictured behing Rick Kammen’s right shoulder.

Professor George Edwards (PIHRL Founding Director & MCOP Founding Director) appears at the far right of the photo.

Absent from the photo above are Jeff Meding (who was in Washington DC for his flight from Andrews Air Force Base to GTMO the next day) and Luke Bielawski, who went to Ft. Meade. Luke is in the photo below.

Briefing Book

Left to right: Luke Bielawski (Ft. Meade, USS Cole), Jeffrey Werner (Ft. Meade, 9-11), George Edwards (Ft. Meade, USS Cole; Guantanamo Bay, US v David Hicks), Judge Patricia Riley (Guantanamo Bay, USS Cole), Jeff Papa (Ft. Meade, USS Cole) & Hattie Harman (Ft. Meade, 9-11). Absent is Jeff Meding (Guantanamo Bay, 9-11, who was en route to Andrews for his GTMO flight)

The Pre-Departure Briefing Book of the MCOP was compiled by Mr. Jeff Meding, Ms. Qifan Wang, Ms. Kristin Brockett, and Professor George Edwards. For each cycle of hearings, a Supplementary Briefing Book will be prepared and distributed to all participants. A copy of our Briefing Book is now permanently housed in the NGO Observer Compound at Guantanamo Bay for subsequent McKinney Affiliates and others to use on their Missions to GTMO for hearings or trials.

My Last Day at Guantanamo Bay (Jeff Meding)

My Last Morning at GTMO. As the sun rose.

Winding Up My Mission To Guantanamo Bay, Cuba
My last day at Guantanamo Bay, Cuba was the 18th of April 2014. I woke up early, at 5:30 a.m., to pack and get to breakfast before it was time to leave. We had to catch a ferry by 7 a.m. that would take us to the Guantanamo Bay landing strip for our flight back to Andrews Air Force Base.

An Amazing Experience
My time at GTMO was, very simply, an amazing experience!

First, all of the NGO’s on the trip were great. Although we inevitably had various views about the MC, everyone was very respectful of each other’s opinions. There were productive conversations between the group members and it was beneficial to hear various viewpoints that I had not considered.

Second, Ben Fenwick and Joanna Leichtman, our MC escorts for the weekend, were fabulous! They were both extremely organized, accommodating, and genuinely nice people. They made the trip that much more enjoyable!

OMC escorts, Ben Fenwick and Joanna Leichtman, were amazing during the mission to GTMO!

Third, the entire GTMO military community was very welcoming. I feel lucky I had the opportunity to meet these extraordinary men and women.

Also, I learned a great deal that will help me in my career as a lawyer. Being in the courtroom is very different from reading about motion hearings in criminal cases.

Finally, the ability to witness the 9/11 MC Hearings was a once in a lifetime experience.

Divisiveness? Controversy?
There is no doubt that the Military Commissions are divisive as an issue.

This became especially clear after the news this week that the FBI allegedly questioned a member of the defense team of defendant Ramzi Binalshibh, who is charged with Khalid Shaid Mohammad and others in the 9/11 case. The person who was approached was the defendant’s Defense Security Officer (DSO), who is a civilian who assists the defense team handle classified evidence. The FBI had the DSO sign a non-disclosure agreement. This revelation caused the judge to halt the proceedings because it potentially has created a conflict of interest issue between the defense attorneys and their clients. Until this issue is resolved, nothing else is going to move forward in the 9/11 case.

Ferry coming to pick us up and take us to the landing strip for the flight back to Andrews Air Force Base.

Arguments For and Against the 9/11 Case Being Tried in a Military Tribunal
I understand that there are arguments on both sides of the aisle as to why this case should or should not be in military court.

The Prosecution wants to try this case in a MC in GTMO because of the potential safety concerns if it was in U.S. Federal Court. Also, I think the Prosecution wants this case in a MC because they do not want the alleged torture of the defendants to be admitted into evidence.

Now, I am not going to pretend to be an expert in the distinction between the Rules of Evidence in Federal Court vs. Military Commissions. However, after reading the rules and talking with various people from the Defense Teams, as well as NGO’s, it seems that in Federal Court the alleged torture information would be more likely to be admitted into evidence.

Finally, right now, GTMO seems to be the only place where the Prosecution can try the defendants.

Bringing the defendants to the U.S. and trying them in Federal Court is not an option under the National Defense Authorization Act for FY2014, which “contains an absolute bar on the transfer of Guantanamo detainees into the United States for any purpose, and also prohibits the building or modifying of facilities in the United State to house such detainees.” See Jennifer K. Elsea and Michael John Garcia, The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters, pg. 42 (2014).

The Defense on the other hand thinks this case should be tried in Federal Court, not a MC. Based off of my conversations with members of the Defense Teams, I think the Defense believes their clients will not receive a fair trial in a MC. Some issues presented in this MC include due process, attorney-client privilege, and conflict of interest concerns.

Also, based on the Governments involvement in this case, there seems to have been an erosion of the professional working relationship between the Prosecution and Defense Teams. For example, various events have been reported that have created a sense of distrust of the Government and Prosecution in this case. Some events include CIA censorship of the proceedings, smoke detectors that were installed with listening devices in the meeting rooms of the defendants and their attorneys, and the disappearance of Defense Team information that was stored on hard drives.

Leaving GTMO.

Frustration
Overall, the latest delay in the case seems to be frustrating for everyone involved with the Military Commissions, especially the family members of the 9/11 victims.

What Happens in Vegas?
As these hearings plod along, it is interesting that the 9/11 case is not getting more national news coverage. The famous saying “what happens in Vegas stays in Vegas” unfortunately seems applicable to GTMO.

By Jeff Meding, Military Commission Observation Project, Indiana University McKinney School of Law

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