This morning I sat down to begin reading the transcripts from the two-week February 2016 session of the 9/11 hearings in preparation for my work as an NGO Observer at the upcoming April session of the 9/11 hearings. I will be attending week one of the hearings (April 4-9), and a recent alum of IU McKinney Law School will be attending week two (April 11-15).
Assuming I did the math right, the two week February 2016 session generated 1453 pages.
The transcripts are made available to the public on the Office of Military Commissions website. Simply select the “Cases” tab and open the case you are interested in following. The left navigation panel lists all the available documents for the case, including transcripts.
Documents Page for 9/11 Hearings
I often refer interested individuals to the Office of Military Commissions page. Reading the transcripts gives the reader a good understanding of why the 9/11 proceedings are an estimated 5 to 8 years from going to trial. For example, on February 17 David Nevin, Learned Counsel (death penalty counsel) for the KSM team, describes the inability to get an interpreter processed through the system so he can join the team. The KSM team has been waiting nearly a year for a replacement after the team’s interpreter was removed without explanation after 2.5 years of service to the team.
If you are going as an NGO Observer, reading the transcripts gets you up to speed, both on the issues that may be on the docket during your observation and for understanding how the courtroom works. For example, in the February 2016 session Jay Connell, Learned Counsel, details the classified information process (pages 10332-10376). Perhaps most importantly, reading the transcripts prepares you with questions to ask the Prosecution and Defense teams. For example, does the manner in which the Prosecution approaches classifying information unreasonably delay the process or harm the defense team’s ability to represent the defendant?
For the general public the transcripts are an easy way to stay informed about the process. Granted there are gaps when the sessions move to classified hearings, but reading the transcripts works for the most part. There are typically two responses when I tell people that I am going to Guantanamo Bay to observe the 9/11 hearings. The first is, “why is it not moving faster?” The second is, “why are we not trying the defendants in federal court in the U.S.?” Reading the transcripts answers both these questions.
As Judge Pohl said in the February hearings (page 10270):
“I want to make something very clear here. I am just a judge. I didn’t pass the MCA; two Congresses did, and two Presidents signed it. I didn’t promulgate the rules, the Secretary of Defense did. Okay? So I want to make this very clear. I take the rules they have and my job as a judge is to do the best that I can. I am not vouching for the system or criticizing the system.The system is, from my perspective, as the system is.”
The Military Commission website hosts 195 transcripts for the 9/11 hearings all labeled as “unofficial/unauthenticated.” Usually I read the transcripts as soon as they are posted at the end of the day; but teaching two classes got in the way of this goal in February. At a minimum I like to download the transcripts as soon as possible. Why? — because sometimes the transcripts change–that is, content is redacted even though it occurred in open court. As Judge Pohl stated, the participants, be they defendants, judiciary, defense, prosecution, victims, or observers, didn’t make the military commission system, it is simply the system we have to work with and we all find our way to work best in it. Downloading and reading the transcripts is one of the ways I work with the system.
Posted by Catherine A. Lemmer, IU McKinney Law School
Main Gate of Ft. Meade, where I am scheduled to attend hearings this coming week.
In a few days, I will travel to Ft. Meade in Maryland to observe, analyze, and report on the upcoming hearings for Khalid Shaik Mohammad and 4 other alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. The U.S. Government has alleged that Mohammed was the “principal architect of the 9/11 attacks”, as reported by the 9/11 commission report. While at Ft. Meade, I will be viewing a secure live feed that links directly to Guantanamo Bay, Cuba, where the defendants have been detained since at least 2006.
My role with the MCOP
I have been participating in the IU McKinney School of Law’s Military Commission Observation Project (MCOP) program for over a year now. I have had the opportunity to research on our Guantanamo Bay Fair Trial Manual, which observers and others can use to help them ascertain whether the rights and interests of all stakeholders have been afforded to them. The Manual examines rights and interests not only of the defendants, but also of the prosecution, victims and their families, the media, observers / monitors, and others.
I have also registered for multiple trips to Guantanamo Bay to view hearings live in the courtroom. However, all of those sets of hearings were cancelled in the days prior my departure. The repeated delays have given me a sense of the monumentally sluggish pace at which these trials move.
Who am I?
I am a 3L law student at IU McKinney, and am set to graduate in December 2015. Until recently I was a human rights intern with the Universal Rights Group, which is a Human Rights think tank in Geneva, Switzerland. My ongoing interest in the Guantanamo Bay is driven in large part by my passion for human rights work, combined with my ongoing interest in criminal law.
Luke Purdy in front of the UN Building (Palais des Nations) in Geneva, Switzerland (Fall 2015).
Next week’s hearings
I am particularly excited about the fact that judge is scheduled to engage in a colloquy with the defendants on Monday morning the 7th, which will give me a chance to view and report on the spoken words of the accused.
I am also interested to hear evidence/testimony on the defendant’s request to prevent female guards from having direct contact with the defendant for religious reasons.
The hearings are scheduled to begin on Monday, December 7 and run until Friday the 11th. I will continue to blog about my observations at the base. I am expected to be joined at Ft. Meade by IU Affiliates Bob Masbaum (a J.D. graduate) and Professor George Edwards (founder of the Military Commission Observation Project). IU McKinney Professor Catherine Lemmer, who is an international librarian, is scheduled to travel to Guantanamo Bay this weekend to attend these 9/11 hearings live.
By: Luke Purdy, 3L, Indiana University Robert H. McKinney School of Law
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
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
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)
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
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.”
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
Monday, February 9, was my first observation experience in the Guantanamo Bay courtroom. It is difficult to describe because I am prohibited from writing much of what I would like to say about the activities in the courtroom. It is a highly controlled area. A sign informs observers that among other things, sketching and even doodling, are prohibited in the gallery. After seeing the courtroom activity, I believe even more so that the courtroom proceedings should be broadcast live on C-SPAN or other network.
Observers, along with the media, are seated in a four-row gallery behind a glass window. Upon entering the gallery you are given an assigned seat number. Media representatives, along with the court sketch artist, are assigned to the front row. Media may also watch the courtroom action on a direct feed to their office/lounge. This allows them to send immediate updates. There is a special gallery section for the family members of 9/11 victims. A curtain can be drawn to protect the victim family members from view of others in the event there is a need for privacy.
The defendants are able to see into the gallery; and at one point Khalid Sheihk Mohammed looked back and acknowledged one of his pro bono attorneys who was present in the gallery.
The gallery is on a 40-second delay. It is amazing how long 40 seconds feels! The time delay gets a bit weird when the “all rise” is given when Judge Pohl leaves and the gallery is still processing the last minute of the activity. I was standing and still scribbling notes as I watched the monitor.
There are a lot of actions that seem unnecessarily proscribed at Guantanamo Bay. For example, the NGO Observer office/lounge is in the old airport hangar, as is the media’s office/lounge. However, we enter our NGO Observer office/lounge from a door on the outside of the building and can’t go into the hangar. During General Martins’ press briefing, the NGO Observers could not go into the hangar and watch. We had to stay in our office/lounge and watch it via a live link.
Similarly the NGO Observers had to watch the defense team press briefing in our NGO Observer lounge/office. The feed to the NGO Observer lounge/office was terminated at the end of the hour, even though the press asked the defense teams if they would continue with the briefing. The NGO Observers later learned that the questions and answers continued for some time after the feed was terminated.
After the startling allegations against the newly assigned interpreter by Ramzi bin al Shibh, one NGO observer remarked “you just can’t make this stuff up!” That about sums up the process here at Guantanamo Bay.
(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)
On Monday, February 9, Judge Pohl recessed the 9/11 hearings to permit General Martins’ prosecution team and the defense teams to investigate the allegations made by the 9/11 defendant, Ramzi bin al Shibh, that he recognized the new interpreter assigned to his defense team as a worker at a CIA black site. Interestingly, his statement naming the individual and directly making reference to a CIA black site was not censored by the Courtroom Security Officer. As a result, the unofficial transcript first posted to the Military Commissions site included the interpreter’s name. Later in the afternoon a redacted unofficial transcript was posted. A number of the NGO Observers felt that the inclusion of the interpreter’s name in a public document was unwise.
General Martins asked for time to discover the facts and file “papers.” Defense teams asked that the filings be adversarial (ie., available to the defense) rather than ex parte. In addition, defense teams asked that the interpreter be made available for interviews.
There has been a good deal of going and coming of lawyers at the courtroom. However, no news is leaking out to the NGO Observers. It is now 6:30 pm on Tuesday and the docket does not specifically reflect any filings by the prosecution or the defense on this matter. The prosecution did file an “Unclassified Notice of Classified Filing” earlier today. The document is not available for public review.
Although there is much speculation as to whether the 9/11 hearings will move forward, there is no news as of this time.
The 9/11 hearings are in recess because defendant Ramzi bin al Shibh alleged in the courtroom that the interpreter at his defense table had been at a CIA black site. Defense counsel for Walid bin Attash, Cheryl Borhmann, then indicated that her client had informed her of the same. Court is in recess until 10:30 am. General Martins’ prosecution team has been called to court to deal with the issue. His team was not in court because the Special Review Team was representing the government on the FBI conflict of interest matter.
(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)
Earlier today the prosecutor provided the updated 9/11 court filings on cds. They also provided two dvd/cd drives for those NGO Observers whose laptops no longer have dvd/cd drives! Technology sure has a way of complicating things on days.
(Catherine Lemmer, Guantanamo Bay, 9/11 hearings, February 9-13, 2015)
I am scheduled to leave for Guantanamo Bay on February 7 to observe the Guantanamo Bay military commission pre-trial proceedings in the case against the five 9/11 defendants. The flight is a little longer than necessary because the plane is prohibited from crossing Cuban air space. In addition to the NGO Observers, the plane to Guantanamo Bay will carry many of the other players, including the defense teams, prosecutors, media, and victim family members.
As an NGO Observer, it is my role toattend, observe, analyze, critique, and report back on the Guantanamo Bay proceedings to help ensure that the proceedings are fair and transparent for all of the stakeholders. The Guantanamo Bay Fair Trial Manual sets out the rights and interests of the many stakeholders: the defendants, prosecution, victims and their families, press, witnesses, Joint-Task Force-GTMO, U.S. citizens, international community, and NGO observers.
Brigadier General Mark Martins (Harvard University)
Since my December 2014 Guantanamo Bay mission I have given a good deal of thought to the rights of one stakeholder group in particular: the prosecution. I met Brigadier General Martins, the chief prosecutor, and some members of his team in December during the NGO observer briefing. During the briefing he was asked the “How did you get here question?” In his response he described his past military service, conversations with family, and his legal education and training.
At the conclusion of our meeting, I thanked him for taking on the role of chief prosecutor. Many might wonder why. The short answer is that the prosecutor represents the rights and interests of society as a whole. The guarantee of a fair and transparent trial is as dependent on the prosecution upholding its duty to all of the stakeholders as it is on the defense teams zealously working on behalf of their clients and the judges engaging in thoughtful and insightful legal analysis when rendering rulings.
Standard 1.1 of the National Prosecution Standards of the National District Attorney’s Association states that “the primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth.” Standard 3-1.2(c) of the ABA Standards for Criminal Justice further notes that it is the duty of the prosecutor to “seek justice, not merely to convict.” 10 USC §949(b) (2014) prohibits the coercion or influence of military commission prosecutors. As a stakeholder entitled to a fair trial the prosecution in fulfilling its duty to seek justice has the right to operate with sufficient resources, without judicial prejudice, and free from outside influence.
The duty to seek justice through the representation and presentation of the truth is not necessarily inconsistent with a military commission proceeding. General Martins has indicated that the prosecution is bringing only those charges it believes it can prove; and that no classified information will be used as evidence as it is important for all the stakeholders to be able to evaluate the merits of the evidence. In short, he has advocated for justice with an open and transparent proceeding. However, General Martins and his team are in the challenging position of bearing the burden of illegal and unethical actions by governmental units over which he has no authority (e.g., the FBI and CIA). It may not be possible to counter the taint of these actions on the military commission proceedings. It remains to be seen how he and his team will balance the consequences of these actions while upholding the duty to seek justice.
He is an equally delicate balance with respect to the families of the victims. General Martins often speaks of justice for the victims. The voice of the victims and their families is a strong and compelling voice and the jury (panel) when finally selected and sitting will undoubtedly empathize with it. As the proceedings progress, those interested in a fair and open process will need to be attentive to ensure that the prosecution serves justice by remaining neutral to and independent of each individual stakeholder group.
(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 2015)
IU McKinney Professor Lemmer to return to Guantanamo Bay to monitor the 9/11 case against Khalid Shaik Mohammad and 4 co-defendants
Indiana University McKinney School of Law will send three law professors to Guantanamo Bay, Cuba to monitor U.S. Military Commission hearings in February 2015. They represent the law school’s Military Commission Observation Project, also known as the Gitmo Observer, that was selected by the Pentagon to observe, analyze and report on war crimes trials at the Guantanamo Bay Naval Station.
Professors Edwards & Lemmer – The 9/11 case
Professors George Edwardsand Professor Lemmer will monitor pre-trial hearings 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).
Professor George Edwards on a US Military C-17 flight from Andrews Air Force Base to Guantanamo Bay, Cuba (June 2014)
Professors Edwards, who is founding director of Gitmo Observer, said “The IU McKinney School of Law is fortunate that we can help promote transparency at the Guantanamo Bay war crimes trials, and that we can observe, analyze and form conclusions about whether Guantanamo Bay stakeholders are being afforded all rights to which they are entitled. In the Guantanamo Bay Fair Trial Manual we are publishing, we examine rights of the defendants, as well as rights of victims and their families, rights of the prosecution, rights of witnesses, rights of the U.S. military personnel who provide Guantanamo Bay security, and rights and interests of all other stakeholders”.
Professor Edwards is scheduled to return to Guantanamo Bay from 14 – 21 February 2015. Professor Edwards’ first visit to Guantanamo Bay was in 2007, when he was an expert witness in the case against Australian David Hicks, who at Guantanamo Bay became the first person since World War II to be convicted by a U.S. Military Commission.
Professor Lemmer, who is a lawyer and international librarian, has played instrumental roles in the development of the Gitmo Observer. She 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 been library liaison to the Gitmo Observer, and a key 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.
Professor Wilson — The USS Cole / al Nashiri case
Professor Wilson is scheduled for Guantanamo Bay travel to monitor the USS al Nashiri case.
Professor Wilson, 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?
Indian 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.
In 2014, Dean Andy Klein was scheduled to travel to Ft. Meade, Maryland to observe Guantanamo Bay courtroom proceedings simultaneously video-cast by secure link. The hearings were cancelled, and Dean Klein is expected to reschedule in the near future.
IU McKinney Law School Dean Andy Klein is expected to travel to Ft. Meade, Maryland to monitor military commission trials during the Spring 2015.
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 Observermissions 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 Manualidentifies 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.
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
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)
Saturday, February 7, will find me again in the departure lounge at Andrews Air Force Base awaiting my departure to Guantanamo Bay to observe the 9/11 hearings scheduled to take place the week of February 9. The military commission made the 6-page amended docket available on January 26, 2015. The docket lists over 30 motions; and notes that counsel should be prepared to argue any other motion for which the briefing schedule has concluded.
In an effort to prepare for the upcoming hearings, I went to the military commission website to review the relevant documents. Whenever I go to the case site I am reminded of the overwhelming complexity of these hearings. Here are just a few numbers I noted:
2959 documents listed on the docket (269 webpages)
55 documents filed in January 2015
32 documents filed by the defense teams
4 documents files by the prosecution
19 documents filed by the commission
Of the 55 documents filed in January 2015, three are available for public review. One of these three is the amended docket.
Transparency is one key to making sure there are fair and open trials afforded to the defendants held at Guantanamo Bay. The inability to review court filings casts an interesting shadow on the goal of transparency. Other key elements of fair and open trials are detailed in the Guantanamo Bay Fair Trial Manual that I will be taking and distributing to NGO Observers and other interested persons next week.
(Catherine Lemmer, 9/11 Hearings GTMO, February 2015)
Guantanamo Diary, by Mohamedou Ould Slahi, was published today (20 January 2015) by Little Brown & Company. It is the first memoir to be written by a detainee who is still incarcerated at Guantánamo Bay. The author, who has not been charged, has been held at Guantánamo Bay since 2002. The memoir details his journey from when he was seized in his home country of Mauritania, sent to a prison in Jordan, and eventually imprisoned in Guantánamo Bay. In 2010, a federal judge ordered his release, but the government appealed that decision.
Carol Rosenberg by Colonel Bryan Browles (from Wikipedia)
The most important thing I observed during my time at Guantanamo Bay is that the activities that occur there are far from the minds of most Americans. In my small opinion, this physical and virtual distance creates a situation ripe for abuse. On the flight home I sat across the aisle from Carol Rosenberg (Miami Herald) and plied her with questions. She is perhaps the best source of knowledge as she has been on the story since the arrival of the first detainees in 2002. During the NGO Observer Tour of the courtroom facilities, the Officer in Charge of the Office of Military Commissions, John Imhof, often looked to her for information.
I made a commitment to myself to stay informed. It shouldn’t take a lot of effort — I’ve started following Ms. Rosenberg’s twitter feed and set up an alert on my news feeds.
National Public Radio interviewed Ms. Rosenberg at 6:45 pm EST on December 31 regarding the release of an additional four detainees and the efforts to close Guantanamo Bay. As of this date, there are still 127 detainees, 59 of whom have been cleared for release. While the rest of the world prepared for year end celebrations, she maintained her vigilance on our behalf.
Not What America is About – Meeting with Defense Teams
“This is Not What America is About” was the consistent theme of the nearly two-hour session NGO Observers had with defense teams for three of the 9/11 defendants: Mr. Mustafa Ahmed Al Hawsawi, Mr. Mubarak Bin ‘Attash, and Mr. Ramzi Bin Al Shibh. Held in the NGO Lounge, a one-window room carved out of metal hangar and filled with mis-matched 1980’s college dorm and office furniture, we listened as the legal teams told of FBI spying on privileged attorney-client meetings with the use of listening devices designed to look like smoke detectors, FBI attempts to use members of the legal teams as informants, Joint-Task Force seizure and review of attorney-client correspondence, CIA control of the courtroom that lead to monitoring of conversation at the defense tables (ironically the $12 million courtroom was designed to prevent this kind of activity), and trial delay tactics. In short, as James Harrington, Learned Counsel for Ramzi Bin Al Shibh, said, “this is not what America is about.”
Questions and answers were traded with the defense teams about the Military Commission and the process itself. Unlike the established U.S. federal court system, the Military Commission is a new process and every issue is subject to briefing and arguments; and a ruling by Colonel Judge James L. Pohl. James Harrington described the situation as such, it is a “process set up for a particular goal, when rules don’t achieve [that] goal, the rules are changed.” Despite evidence that terrorists can successfully be tried in Federal courts (e.g., Sulieman Abu Ghaith, Osama bin Laden’s son-in-law) the Military Commission process appears at this point in time to be what we stuck with.
Defense Counsel Wearing Hijab
Learned Counsel Cheryl Bormann, who represents Mubarak Bin ‘Attash, also noted the disparate resources made available to the defense teams. For example, her team has not been assigned an investigator. Ms. Bormann wears a hijab during meetings with her client and court proceedings. She explained that she wears hijab to establish rapport with her client. There was a definite undercurrent of a difference of opinion among the defense teams as to whether the wearing of the hijab will create an unfavorable impact with the judge and jury (panel) when and if the 9/11 case ever gets to trial. (more…)
The NGO observers had a sliver of hope that we would see actual court proceedings when we learned on Sunday that Walter Ruiz, attorney for Mustafa al Hawsawi one of 9-11 detainees, had filed a motion for a hearing to obtain medical care for his client. The motion alleged that Mr. al Hawsawi was thrown to the ground and shackled on December 7 due to a misunderstanding as to whether he was to return to his cell or to the recreation area. However the Judge (Army Col. James L. Pohl) denied the request. The next hearings for the 9-11 detainees are docketed for February 9.
Given the lack of court proceedings, the NGO observers pushed for meetings with the defense and prosecution teams. The meeting were scheduled around the various 802 conferences and client meetings.
Brigadier General Mark S. Martins
We met first with Brigadier General Mark S. Martins, the chief prosecutor, and three members of his team. Prior to the meeting we were provided with his 13 December 2014 prepared remarks. The prepared remarks addressed the release of the Torture Report. It was Brigadier General Martins’ opinion that the Torture Report will not disrupt or derail the Military Commission process. Rather, the release of previously classified information will speed discovery for the defense. He reiterated in his prepared remarks that the prosecution will not introduce as evidence statements obtained through torture.
Brigadier General Martins began the session by introducing his staff and referring us to his prepared comments. He noted that he would not discuss the female guard issue nor the FBI conflict-of-interest issue; the latter because he had walled himself off from this issue. He then went on to answer our questions and provide information.
As in his prepared remarks, Brigadier General Martins discussed the prosecutions’s intent not to use evidence obtained through torture. He noted that it is imperative that the people see the government’s case. This is not possible if the prosecution uses classified information. Ironically, his intent doesn’t seem to be shared by some other powers in the government — for example, those entities fighting the release of the remaining torture materials. (more…)
The cancellation of today’s hearings left the NGO observers at loose ends. A few of us asked if we were permitted to visit Camp X-Ray. A van and driver were arranged and we headed out late morning for the 15-minute drive to the no-longer used facility.
There is a strange juxtaposition of life here on the base. On our way to Camp X-ray we drove through military family housing–many of the houses are decorated with festive Christmas decorations–and just as we made the last turn out of the neighborhood there was a woman walking her dog and another woman jogging while pushing children in a double stroller. We could have been in any middle class suburb in America!
Within minutes of the neighborhood we pulled over & viewed Camp X-Ray.
Camp X-Ray (detainees were held here from January to April 2002)
Camp X-Ray was the temporary detention facility at Guantanamo Bay. The first detainees arrived in January 2002. In April 2002 Camp X-Ray was closed and the detainees transferred to the permanent prison camp–Camp Delta. It is estimated that Camp X-Ray housed 800 men and teens during its use. Carol Rosenberg (Miami Herald) reported that in 2009 the FBI photographed and documented the camp. U.S. courts have ordered the preservation of Camp X-Ray facilities where detainees were held at the request of defense lawyers who want it kept intact as a crime scene.
Camp X-Ray, Guantanamo Bay
Although media representatives and others have toured Camp X-Ray, we were only permitted to view it from the road. Similarly NGO observers are not given access to the detainee facilities and other facilities used by the military commission process. The government challenges the credibility of the NGO observers by limiting our access while demanding that we report that all is well here with the Military Commissions in Guantanamo Bay.
Despite closed-door sessions with Judge Pohl on Sunday (14 December 2014), the prosecution and defense did not reach agreement on the female guard issue. A detainee is physically touched by the guards when moved from his cell; for example, for court appearances and attorney meetings. Woman constitute nearly 25% of the guard population at Camp 7 where the high level detainees are imprisoned and are integrated into the details. The detainees object on religious grounds to physical contact with women. If women are in the transfer detail, the detainees refuse to leave their cells; even if it means foregoing attorney meetings. If a detainee refuses to leave his cell, a forced cell extraction occurs (“FCE”). The FCE has been described as a tackle-and-shackle procedure.
All detainees were ordered to appear in court this morning which could have prompted FCEs. In order to avoid FCEs, Judge Pohl cancelled today’s hearings.
The NGO observers are awaiting a briefing from Chief Prosecutor Mark Martins later this afternoon. There is also the possibility of a briefing from the defense teams. I will post updates as soon as I have any news.
Addendum: The continued use of female guards despite the religious concerns of the detainees is perplexing. Other accommodations have been made for the detainees. For example, they are allowed to bring their prayer rugs into the courtroom; action in the courtroom stops to allow the detainees to pray; the direction of Mecca is marked on a wall in the courtroom; and dietary restrictions are taken into account when preparing their meals. Explanations as to why all male guard transfer teams are being used include the following (paraphrased): (i) the armed forces are an equal opportunity employer and women are being integrated; (ii) the judge does not manage or wish to manage the detainee facilities; (iii) 25% of the guard force here is women and it is not possible to take them out of the rotation. More to come on this.
“What’s the movie on this flight?” One hardly expects that to be the first question one hears on a chartered Miami International Air flight bound for the Guantanamo Bay 9-11 hearings. One also doesn’t expect to engage in a humorous movie selection process with members of the defense teams, NGO observers, and a flight attendant – in the end, the “chick flick” was vetoed and “Dawn of the Planet of the Apes” went into the play slot.
Tent 9A – My Home Sweet Home for the next few days.
The Saturday flight from Andrews Air Force Base and the ferry ride to the island were uneventful. I sat in the back of the plane with the media and other NGO observers.
Upon arrival, the NGO observers were directed to our tents in Camp Justice, taken to get our base badges, and given a brief NGO orientation about the Guantanamo Naval Base. What is easy to forget is that the Guantanamo Naval Base has been in existence and operating since 1898; it is only since 2002 that it has served as detention camp for alleged enemy combatants.
Defense Bar-B-Q — Meeting lawyers, press, and others. The week’s agenda.
On Saturday evening the NGO observers were invited to a BBQ by the defense team for Ammar al Baluchi. Carol Rosenberg and members from the other defense teams attended as well.
James Connell, Learned Counsel for Mr. al Baluchi, gave a lengthy briefing on motions set to be heard Monday and Tuesday. In addition to the conflict of interest matters (see my earlier post), the issue of the use of female guards is occupying a fair amount of time. At issue is whether female guards should be able to physically touch the prisoners as they are being prepared for transfer from their cells. The prisoners object on religious grounds to being touched by the female guards. They have forgone meetings with their attorneys if female guards were part of the rotation that would move them from their cells to the meeting. (more…)