Chuck Dunlap

Travel Day to Guantanamo Bay to Monitor U.S. Military Commissions in the 9/11 Case (August 19, 2017-August 26, 2017)

This is my second trip to observe the military commission hearings at Guantanamo Bay, Cuba as part of the Military Commission Observation Project (MCOP) of the Program in International Human Rights Law (PIHRL) of the Indiana University McKinney School of Law. My role is to observe the proceedings and provide an independent, impartial, and accurate account of the proceedings.

I left Indianapolis Friday afternoon August 18 and drove for 9 hours to joint base Andrews, where the charter plane to Guantanamo Bay, Cuba was scheduled to depart at 09:00 on Saturday morning August 19. I was told to arrive at the Andrews Visitor Center by 06:00 and meet the escort from the convening authority who would fly with us. Upon my arrival at the visitors center, one of our escorts vouched for me at the front gate guard station so I could drive onto the base to the terminal. I followed our escort to the terminal where I met the other 3 Non Governmental Organization representatives (NGO’s) who are traveling to Guantanamo Bay for the KSM / 9/11 hearings with me. There were representatives from the American Bar Association, the New York City Bar Association, and the Pacific Council on International Policy.

NGO’s traveling to Guantanamo Bay 8/19/2017, at the family waiting room at Joint Base Andrews. From Left to Right, Neysa Alsina, Victor King, Justin Bingham, Chuck Dunlap

I handed out copies of the Guantanamo Bay Fair Trial Manual and the Know Before You Go: Guantanamo Bay (which were produced by the MCOP and are routinely distributed to other NGO’s traveling to Guantanamo Bay for the military commission hearings) books at the terminal for them to have as resources during our trip.

“Know Before You Go To Guantanamo Bay” publication produced by MCOP as a guide for those attending Military Commission Hearings

After an uneventful 3 ½ hour flight we arrived at about 1:00 in the afternoon in Guantanamo Bay. Upon landing we were the last group to exit the plane since we were seated in the very rear of the aircraft. We entered the main hanger and were processed through initial security procedures which consisted of a review of our travel orders issued by the Pentagon, our passports, and the other documents we had completed in order to travel to Guantanamo Bay.

After clearing through the initial security process in the hanger, we entered the terminal next to the hanger where I briefly got to say hello to Tyler Smith who was traveling back on the same plane we arrived on after observing the Abd al Hadi al Iraqi hearings the prior week. Since we were the last ones to be processed through security, we had to hurry up and get loaded up onto the vans that were waiting to take us to the waiting ferry. The ferry is a large military transport boat boat that can hold hundreds of people and also vehicles to cross the bay from the airport to the other side where the military commission hearings are held.

The military ferry that we traveled on to cross Guantanamo Bay from the air terminal side to the Military Commissions side.

Photo of a dolphin taken from the ferry as we crossed Guantanamo Bay from the air terminal to the other side where the military commission hearings are held.

After traveling across the bay on the ferry we collected our luggage and got settled into our tents. After that, we went to get our security badges which took place within the secured area of the courtroom compound at camp justice. After that we made a trip to the Navy Exchange (NEX) to stock up on supplies for our week’s stay. The NEX is essentially like a Super-Walmart with food, clothing and general merchandise.

The accommodations that NGO’s receive during our stay at Guantanamo Bay, Cuba

An exterior photo of the tent compound at Camp Justice that the NGO’s stay in while attending the Military Commission Hearings

Later in the evening the 4 of us (NGO’s) were invited to attend a BBQ hosted by representatives from the Al Baluchi defense team. In addition to the Al Baluchi defense team, several other members of other detainee defense teams were also present. During this time we had the opportunity to talk with some of the defense attorneys about what to expect during the week ahead and how they expected the various issues on the docketing order to be addressed. We learned that the defense teams anticipated a full day of public hearings on Monday followed by a closed session (closed to the public) on Tuesday due to the discussion of classified information, a public hearing day on Wednesday, and most likely closed sessions on Thursday and possibly Friday. The members of the defense teams stressed that this tentative schedule is subject to change depending on how the hearings proceed day to day, but if the schedule stays as has been predicted by the defense teams, we should have some down time during the day so we may have opportunities to visit some other parts of the base including Camp X-Ray, Marine Hill and radio GITMO.

While we don’t know our full schedule for tomorrow yet, we have been told that at some point we will also have an opportunity to meet with the prosecution team as well and discuss the proceedings from their perspective.

Charles R. Dunlap, J.D.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Preparing for Guantanamo Bay 9-11 Hearings

Our plane to Guantanamo Bay is scheduled to depart from Andrews Air Force Base on Saturday morning, 13 December 2014.

Panic like a 1st year law student or new law firm associate!

It is easy for an Guantanamo Bay fair trial NGO observer to experience the same sort of panic that a first year law firm associate experiences when thrown into a complex litigation matter. I’ve spent a fair bit of time over the last few days reading and re-reading the motions to be heard next week when I am in Guantanamo Bay. Despite my homework, I am not sure I fully comprehend the significance of many of the details.

Blog posts – to a fair trial – Guantanamo Bay Fair Trial Manual.

Generally, my blog posts during my Guantanamo Bay mission will not focus so much on the substance of the legal arguments related to the case. Instead, they will focus on right to a fair trial issues, as discussed in the Guantanamo Bay Fair Trial Manual. However, on the eve of my departure, I wanted to post on the defendants in the hearings next week, the pre-trial motions scheduled, and on the odd assortment of categories of lawyers expected to be present to represent the defendants and to represent the U.S.

The hearings for 15 – 16 December 2014

Five motions are scheduled to be heard during two days of hearings at Guantanamo Bay in the case against 5 alleged masterminds of the World Trade Center / Pentagon attacks on 9-11. All five defendants, Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak bin ‘Atash, Ramzi bin al Shibh, Ammar al Baluchi (aka Ali Abdul Aziz Ali), Mustafa Ahmed Adam al Hawsawi, and their legal defense teams are expected to be present for the hearings. Also expected to be present is Independent Counsel appointed for Mr. bin al Shibh.

The regular prosecutors in the case will likely not be in the courtroom during at least some of the hearings, but the U.S. will be represented by a “Special Review Team” that was called in to represent the U.S. next week because of conflict of interest issues related to due to allegations related to the FBI allegedly infiltrating defense teams on the case. (more…)

Wrapping up the week of al Nashiri GTMO hearings – Charles Dunlap

Watching the press conference from the NGO lounge. Note the picture is of the GTMO courtroom that was used for the hearings.

Press Conference

After the hearings were over for the week in the al Nashiri case (4 – 7 November 2014), the prosecution and the defense teams held a brief press conference with the four media representatives who were with us at GTMO for the week.

Victims and Victims’ Families

During the press conference, the victims and their families had an opportunity to also speak to the media. When the victims and their families spoke it was a reminder of what this trial is all about and the 17 people that died on the USS Cole and the 39 wounded. During the hearings it is easy to get caught up in the “legal arguments” and the various details and tactics and lose sight of why we are here. For me, hearing the victims and their families at the press conference really made me re-focus on them and their experiences. In addition to the overall suffering that they have been through, the main point that they expressed was their frustration with the slowness of this process and their desire for there to be an end to this and to see justice done.

Last Days Events

NGO’s gather for a farewell cookout and a chance to reflect on the weeks events.

On the last days of the trip, we had an opportunity to do several things.

Time with Defense Team – Rick Kammen and defense lawyers

The NGOs spent an hour and a half with Rick Kammen and the defense team. They were extremely generous with their time and were able to answer many questions about the hearings we had observed.

Again, some of the overall themes from that meeting were similar to others; the incredibly difficult logistics and the high costs that result; the complicated issues associated with the case which are compounded with the issue of classified information; and also how politics at the highest levels impacts the trials. Speaking specifically to this last point, Rick talked about a time when the former leader of Yemen was in the United States to receive medical care and the defense team tried to depose him. The US State Department denied it due to their policy of not wanting to impose on foreign leaders in the US who are here for medical treatment.

Visit to Camp X-Ray

The NGOs also had an opportunity to visit Camp X-Ray, which is the outdoor detention facility where they held the detainees when they first arrived. We were not able to take photos of the site but we were able to see it. It is abandoned now but there is a federal court order in place to preserve it as evidence in some of these proceedings. Camp X-Ray was only used to house the detainees for a few months when they first arrived on the base because they didn’t have any other facilities to house them in at the time. Within a few months they were moved to more permanent structures indoors.

Radio GITMO

Another place NGOs were able to visit and tour was radio GTMO. The base has a radio station that broadcasts 3 channels on the base. They have an arrangement with Cuba so the signal is not broadcast into mainland Cuba. The radio station has one of the largest collections of vinyl records in the world with many being extremely rare and limited editions. The stations still plays the records on the air. One unfortunate fact is that due to the licensing rights from the record companies, if the records are taken out of circulation they must be sent back to the record companies where they would be destroyed. It’s crazy to think that some of these one of a kind records made especially for the military would be lost forever and destroyed but that is what is required due to the licensing rights.

Some of the one of a kind vinyl albums that Radio GITMO still plays

One of the last few stops was to the abandoned lighthouse on the edge of the base. One of the interesting things was the collection of old boats that was in the area which were used by people who fled Cuba or other areas to try and immigrate to the United States.

The abandoned lighthouse with some of the old boats that people used to defect to the base.

Conclusion

I want to thank Professor George Edwards and the Indiana University McKinney School of Law for allowing me to participate in this incredible experience. It is something I will remember forever and a trip that has given me so much information. There are so many things that I was not able to include in this blog but that I will try and address in other forums since one of the goals of the NGO program is for those that witness the process to tell others.

Al-Nashiri GTMO Hearings – 5 – 6 November 2014 – Charles Dunlap

Chuck Dunlap with Rick Kamman, Chief Defense Counsel for Al-Nashiri

Now that I have reliable internet access I wanted to post the remainder of my blog entries from my trip. First about the hearings themselves. The hearings took place Wed. & Thurs morning Nov. 5-6. Rather than go into detail about all ten of the motions I will try to give an overview and summary of the proceedings.

Range of Motions

The hearings were scheduled for two days and actually ran for 1 1/2 days. Of the ten issues, they can be summarized as follows;

dismissal of the death penalty since the defendant will not have access to classified evidence against him;
abatement of proceedings due to lack of adequate medical care for defendant
defense request to have access to an MRI machine to assess the defendant’s mental state
request for the defendant to have a Skype call with his parents
motion to withdraw the death penalty because it is no longer a military necessity
motion to suppress evidence due to lack of Miranda warning
motion to exclude hearsay evidence
other more procedural motions

Themes –Logistical Issues

Overall, the hearings were much like you would see in any court. However, one of the strong themes that came out of the hearing days was how the logistical challenges of being at Guantanamo Bay impacted everything and made things more challenging (and costly). The logistics of having all of the court personnel travel to the base, combined with some of the limitations once at the base were very evident.

Another theme was the uncertainty on some of the procedures and trial logistics. The parties often referred to the Military Commissions legislation but often there was no specific guidance on some of the more detailed points and issues so the parties had to look to other authority like federal courts.

Schedule Going Forward –

The parties also worked with the judge to try and plan out the new schedule going forward. The next big event will be pretrial hearings scheduled for February when the parties are set to begin arguments focused on the government’s efforts to introduce 72 hearsay statements which constitute the bulk of their case. Since the standards for hearsay are different in Military Commissions, this will be one of the main pretrial events.

For those interested in looking at the specific pleadings, transcripts etc. you can find them at http://www.mc.mil/CASES.aspx).

Meeting with Chief Prosecutor – Part II – Wednesday

The “NGO Lounge” at GITMO where NGO’s have a place to work (without Wi Fi though)

More on the NGO meeting with the Chief Prosecutor General Martins

To conclude a summary of our meeting with General Martins, Chief Prosecutor for the Military Commissions, here are several other topics we discussed in our meeting:

No Miranda warnings required

• One of the primary differences with the Military Commissions and traditional Article III Courts are the different standards regarding Miranda Rights and the admission of hearsay evidence. Generally the standards for admission of hearsay evidence and evidence gathered without first issuing a Miranda warning is less strict. Gen. Martins stressed that due to the nature of the environment where the evidence is collected (often in a theatre of war) there are not always trained law enforcement personnel available and therefore the standard should be different than in a traditional civilian law enforcement/Court setting. That being said, he reiterated that even though the standards may be “lower” there is still a threshold that must be met and not just anything can be admitted. There is still a need for the prosecution to prove that the evidence being proffered is reliable through a “totally of the circumstances” analysis and the defense has an opportunity to counter that through cross examination etc. which is all set forth in the MCA of 2009.

Timetable for al Nashiri trial

• One specific question from the group was when he thought the actual trial would begin for Al-Nashiri. Gen. Martins indicated that he anticipated that at the current pace and posture of the case, the trial could begin in the fall of 2015.

Evidence generated from “enhanced interrogation”?

• In addition, he also noted that for the government’s case it will use no testimony generated from any enhanced interrogation procedures.

Declassifying information

• Gen. Martins also indicated that the government is under an obligation to declassify as much information as possible under the MCROE 505 and that they have been striving to meet that obligation. He also pointed to the volume of materials and direct resources and documents from the proceedings that are available for anyone to ready and review on the internet, and that they strive to make the entire process extremely open and public as the MCA requires.

Listening device disguised as smoke detector in attorney / client meeting room; FBI investigating defense team members

Some of the aL-Nashiri hearing NGO Observers at a table outside our tents. They stopped letting NGOs have wifi access at this location.

• In response to a question from the group, Gen. Martins discussed some of the particularly troublesome issue that some observers of the process have mentioned concerning the revelations of a listening device concealed in a smoke detector in a room where attorneys met and conferred with their clients at GITMO, as well as the FBI interviewing members of the defense team and having nondisclosure statements about the interviews so other members of the defense team would not know of the interviews occurring. The FBI issue is currently being litigated in the 911 case and Gen. Martins has walled himself off from that case so he wasn’t able to comment very much on that other to say that it was a legitimate issue from both sides and the judge is currently hearing arguments on it. Regarding the smoke detector issue, he indicated that the facts presented showed that the room was a multi-purpose room used for other detainee procedures where surveillance was necessary and the listening devices were not operative during the attorney client meetings.

ISIS / ISIL — Captured taken to GTMO?

• An additional question raised by the group concerned the current conflict with ISIS/ISIL in the middle-east and whether or not in the event any of their members were captured, would they potentially be transferred to GITMO to face a military commission. The General responded that it is an open question (and theoretical at this point) on how that would be handled. There are several issues associated with that question that all have to do with the limited jurisdiction of the military commissions based on the MCA of 2009. You would need to explore if they are affiliated with Al Qaeda, are they foreign nationals, are they unlawful enemy belligerents etc.

Future Updates

I will also be posting future updates from the subsequent day’s activities of this trip.

Day 1 – Meeting with Gen. Martins, Chief Prosecutor Post 1 of 2 -Charles Dunlap

NGO Meeting with Chief Prosecutor General Martins

On the afternoon we arrived at GTMO for the al Nashiri hearings (Monday, 3 November 2014), the 10 NGOs met with Brigadier General Mark Martins, the Chief GTMO prosecutor. We met from 6:00 p.m. to 7:30 p.m.

We talked with him and his staff about what to expect in the Al-Nashiri hearings and about Military Commissions in general. Here is a summary of some our discussions, with more to come in future posts:

Criticisms of the Military Commissions

A main criticism of the Military Commissions is that many commentators believe that the Article III court system is better positioned to conduct these types of trials. Gen. Martins agreed that in most cases, Article III Courts can do an effective job. However, he said that in some cases, the Military Commissions were the best forum for several reasons, including the complexity of the cases, rules of evidence in a combat situation, and others (to be discussed in additional posts to come).

One issue that he pushed back on concerned media reports that “hundreds” of “terrorism” cases have been tried in federal courts in the same time that only a few have been tried in Military Commissions. His issue with this statement is that it does not tell the entire picture. His said that it is not an apples to apples comparison since only 15 of those cases were eligible for a Military Commission to begin with. In many cases of concurrent jurisdiction, it may be appropriate for the federal courts to handle the cases but Military Commissions are set up for the particularly challenging cases which is why they take a great deal of time. In addition, since federal legislation prohibits transferring detainees to the mainland, the Military Commissions are the only way forward with some of the cases based on the legislation creating the Military Commissions and providing them sole jurisdiction.

International Law and the Military Commissions?

Another issue discussed was the international law requirement for Courts to be “Regularly Constituted.” This presents a challenge since these Military Commissions were only created after 9-11 and while they are legislatively created and not Article II courts created under military / executive branch authority, some issues exist associated with their longevity and if they are in fact “regularly constituted.” This is one area where having a federal court (Article III) trial would alleviate this concern.

Continuing this post..

I plan to continue this post tomorrow when I have additional time with the Wi Fi.

Today (Tuesday, 4 November) was pretty much devoted to boat tour of the Bay and associated areas. Tomorrow (Wednesday, 5 November) we will be observing the first day of scheduled pre-trail hearings for Al-Nashiri.

More to come tomorrow….

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.

Indiana Lawyer Lectures Before Guantanamo Bay Mission

Chuck Dunlap - Lecture - Indiana University McKinney School of Law - 31 October 2014

Chuck Dunlap lectures in Professor George Edwards’ International Criminal Law class. Students in the class have conducted research on fair trial rights to incorporate into the Guantanamo Bay Fair Trial Manual.

Days before his mission to the Guantanamo Bay Naval Station (GTMO), Charles (Chuck) Dunlap lectured about the Military Commission hearings he will monitor at the remote military outpost on behalf of the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law. Mr. Dunlap is scheduled to observe pre-trial hearings in the case against Abd al-Rahim al Nashiri, who is alleged to be a mastermind of the 2000 suicide attack on the U.S.S. Cole off the coast of Yemen. The attack killed 17 U.S. sailors and wounded several dozen.

The Military Commission Observation Program has been sending Indiana McKinney School of Law to monitor hearings at Guantanamo Bay and at Ft. Meade, Maryland, where the GTMO hearings are simultaneously video-cast on secure lines. The MCOP mission is for IU McKinney students, faculty, staff and graduates to attend, observer, analyze, critique, and report on pre-trial hearings and trials.

Guantanamo Bay Fair Trial Manual

MCOP monitors are expected to use the Guantanamo Bay Fair Trial Manual as a tool to help them ascertain whether they believe that all Guantanamo Bay Stakeholders are receiving a fair trail. the Manual lists dozens of fair trial rights that are to be afforded to the prosecution, victims and victims families, the defendants, the press, security and other personnel who work with the prisoners and with the court, the U.S. public, and others.

Professor Edwards and Mr. Dunlap and stack of Guantanamo Bay Fair Trial Manuals Mr. Dunlap will carry to Guantanamo Bay for NGO Observers to use in assessing fair trial rights. Copies of the draft Manual can be downloaded from www.GitmoObserver.com.

IU McKinney Law Students Assist in Fair Trial Project

IU McKinney law students enrolled in Professor George Edwards’ International Criminal Law class have been conducting legal research that is being incorporated into the Guantanamo Bay Fair Trial Manuals. Mr. Duncan met with students in the class, lectured on issues to be raised during the al Nashiri hearings during his mission, and discussed with the students their research. Each student in the class has been assigned one or more specific fair trial rights to explore, and the students are examining the international law and domestic U.S. law that define the rights in the Guantanamo Bay context.

Mr. Dunlap traveled to Ft. Meade several months ago to monitor Guantanamo Bay hearings. The MCOP, which is also known as The Gitmo Observer, is part of the Indiana University McKinney School of Law Program in International Human Rights Law. Professor Edwards is the founder of the Program in International Human Rights Law, and the MCOP / Gitmo Observer.

Ft. Meade – Military Commissions Hearings 6-16-14 By Chuck Dunlap

Main Entrance to Ft. Meade

Arriving at Ft. Meade, June 16, 2014
I arrived at Ft. Meade a little before 8:00 am on Monday morning to make sure I didn’t miss any of the hearings. After my last experience of missing everything due to a schedule change, I didn’t want to take any chances. Fortunately, there was a very short line to get into the base and I was waived in after telling the guards what I was coming
onto the base for. They seemed surprised that the Military Commission hearings were being broadcast on the base.

Chuck Dunlap and Clarence Leatherbury at the Post Theatre

The next step was to figure out where on the base the theatre was. After stumbling around driving for a while I first (more…)

Mission Scrubbed!

Driving to Ft. Meade — Before learning that the hearings had been suspended!

Detour en route to Ft. Meade!

Well, today didn’t turn out exactly as I had planned. I was scheduled to be at Ft. Meade tonight getting ready for the USS Cole hearings tomorrow and Friday.

I left Indianapolis today around 11:00 after a quick visit to the office to get a few last minute things wrapped up. I swung by the law school on my way out of town to pick up the HUGE briefing binder for the program. Just as a side note, my huge thanks for the group that put these together. I was reviewing my electronic version all weekend in preparation for the trip and it was extremely thorough and helpful. After picking up the binder I headed out of town on my 9 hour trip to Ft. Meade.

To Pittsburgh

Generally the road trip was pretty uneventful and I was anticipating getting into my hotel near Ft. Meade around 9:00 PM. I made pretty good time and around 6:00 decided to stop in Morgantown WV for dinner and to check e-mails etc. During this break I learned from Kristi, who was the only one of the 4 of us who was able to attend today’s hearings, that there had been a bit of a change of plans. Apparently things went so smoothly and quickly today that they didn’t need the other two days for the open hearings, and the only things left to cover were classified so they would not be open to the public. Grrrreat. So after a few frantic calls, emails and texts we confirmed that basically we were done for the week (before I got started).

Though I thought I was going to Ft. Meade today, I ended up in Pittsburgh instead!

At this point, being 6+ hours from Indy at 7:00 PM I wasn’t too pleased. Fortunately for me, I grew up in Pittsburgh and my parents still live there so I ended up backtracking about an hour and a half to my parents home in Pittsburgh for the night. At least I got to spend some unexpected time with them and I have an unexpected day on Friday to get some more work done at the office.

My next trip to Ft. Meade – June hearings in the 9-11 case (Khalid Shaik Mohammed)

Chuck Dunlap and parents he visited on an unexpected stop in Pittsburgh after GTMO hearings suspended.

While I am disappointed my first Ft. Meade mission got scrubbed at the last minute, I am still looking forward to the June 9-11 hearings, involving several men accused of masterminding the attacks on the World Trade Center and the Pentagon in September 2001.

This does make me think though of all the logistics involved with this and even in today’s digital society, why there are only a few limited sites to watch the hearings. It sure would have been easier if I could have just flipped on C-Span and watched from the comfort of my living room. I’m sure my very patient wife would have also appreciated me being home and able to simply watch it on TV as well.

All I can say is that I am hopeful that the June 9-11 hearings will turn out better for me!

Chuck Dunlap
5/28/14