Fair Trial Checklist

From Indianapolis City Employee to Guantanamo Bay Observer — Nomination, Confirmation, Preparation

From my perch as an Indianapolis city employee working in economic development, I don’t often receive an email inquiring about the seriousness of my interest in traveling to Guantanamo Bay, Cuba.

But that’s exactly what happened on January 31, 2017.

Indiana University McKinney School of Law Professor George Edwards, an International Human Rights Law Professor of mine and who was also my third-year law school research paper faculty supervisor, emailed me with a simple question: “Are you available for a quick phone call?”

I was puzzled. I had, years ago, inquired about the law school’s then new Guantanamo Bay Military Commissions Observation Project (MCOP), but after a few exchanges with Professor Edwards and other inquiries, I realized it was simply bad timing on my part.

That said, it turns out I had been in contact with Professor Edwards on an unrelated matter, and renewed my interest in traveling to Guantanamo Bay to monitor military commissions. Professor Edwards and I discussed the project, and he impressed upon me the gravity of the undertaking.

Professor Edwards asked If I really want to travel to Guantanamo Bay to do the work; which includes lots of preparation, work once you’re there, and work once you return.

He reminded me of the importance of the work of our law school’s Program in International Human Rights Law generally, and about the importance of its Guantanamo Bay work which began more than a decade ago.

It was quite clear this wasn’t a passive trip to Cuba; this was to be taken very seriously and the hard work required of each individual would ideally result in substantive and value add contributions to the policies and procedures Professor Edwards and his partners have worked hard to create.

After a discussion with my spouse, I was officially committed.

Background and Experience

For some background, I was not deeply involved with human rights when I was a law student, and I am not a human rights attorney. Since graduating from McKinney law school in 2010, I have worked in the private sector for a global aerospace company and in the nonprofit sector for a disabilities services organization. I currently work for the City of Indianapolis managing real estate transactions and economic development projects and strategy.

In short, I did not think that I was an obvious candidate for a mission to Gitmo as part of a legal proceedings observation effort. But, it is my hope that my outside viewpoint and fresh set of eyes can be beneficial and offer a different perspective as I observe and try to contribute to the understanding of existing guidelines and procedures.

Back to the Storyline

Once I told Professor Edwards I was committing to the assignment, it was time to better understand the process and the various entities involved.

The Indiana University McKinney School of Law Program in International Human Rights Law (PIHRL), under the leadership of Professor Edwards, established the Military Commission Observation Project (MCOP). After the Pentagon Guantanamo Bay Convening Authority granted MCOP Non-Governmental Organization Status, affiliates of Indiana University McKinney became eligible to travel to Guantanamo Bay, Cuba to monitor U.S. military commissions which were established to try alleged perpetrators of war crimes. Specifically, as observers or monitors, our 5 principal responsibilities are to: (a) attend; (b) observe; (c) analyze; (d) critique; and (e) report on hearings of detainees at Gitmo.

My process began by submitting certain personal information for consideration by the MCOP Advisory Council. Once approved for advancement by the Council, my name was then submitted to Pentagon as a nomination. At this point, the Pentagon can confirm you or deny you. Fortunately, on February 9, 2017, I was “CONFIRMED” by a Pentagon representative.

To be specific; from the Pentagon:

“You have been CONFIRMED to observe the March 18-25 9/11 Week ONE military commission in-person at Guantanamo Bay, Cuba. Currently, the flight schedule is as follows:

Departing from Joint Base Andrews to Naval Station Guantanamo Bay on 18 Mar (SAT) at 1000

Departing from Naval Station Guantanamo Bay back to Joint Base Andrews on 25 Mar (SAT) at 1000.”

I then had to fill out various forms and agreements. In some ways, this has been the most complicated part so far, since each of the documents is different, and each document must be completed following very specific guidelines. Professor Edwards sent my “completed” documents back to me numerous times for me to modify my original entries to comply with Pentagon requirements, and with requirements of the Indiana University administration including IU lawyers who review some of the forms before we observers are permitted to return them to the Pentagon. The templates that I was given to follow were helpful, but it was nevertheless still a challenge.

Finally, all the documents were reviewed by Indiana University officials (including the IU Treasurer) and by the MCOP, I sent all requisite information to the Pentagon in the hopes that they would grant me full clearance.

What Hearings will I monitor?

There are three sets of hearings ongoing at Guantanamo Bay now. During the week of my scheduled monitoring (19 – 25 March 2017), hearings will be held in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. I remember where I was on September 11, 2001, and I cannot escape the impact it had on me. Pictured in this blog is Khalid Shaik Mohammed, the alleged mastermind himself, who was, among other things, waterboarded 183 times.

This is Actually Going to Happen?!?

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At this time my focus has turned to the nuts and bolts of traveling from Indianapolis to Cuba. Easy right? Yeah… I plan to fly to Washington, DC then snag a Lyft and drive to a hotel near Andrews Air Force Base in Maryland, which is around a thirty-minute trip. I will stay overnight there, in anticipation of my morning flight from Andrews in a military airplane directly to Guantanamo Bay, Cuba.

While at Guantanamo Bay, among other duties, I plan to provide updates via this blog site.

I hope to offer unique insights contributions to the existing body of work relating to legal proceedings, policies, and guidelines. I see this as an occasion to provide transparency from an “on the ground” perspective. Very few have had the chance to travel to Gitmo to monitor military commission proceedings; I intend to make the most of this opportunity, for the benefit of all concerned.

Duties and Responsibilities

One of the most important tasks of anyone traveling to Guantanamo Bay as part of the IU McKinney MCOP is to contribute to the Guantanamo Bay Fair Trial Manual. You can find the Manual here: https://gitmoobserver.com/military-commission-observers-manual/

FT Manual

This Manual is the product of the hard work performed by Professor George Edwards and other student and legal partners who have been observing at Gitmo for years. It provides many of the policies and procedures that govern the treatment of detainees and the trial and legal proceedings. It is an objective and independent document that is used by observers from other institutions and others as they form their own judgments as to whether Guantanamo Bay stakeholders are being afforded all rights and interests they are owed.

I feel it an honor to be able to observe and contribute to this important document.

I am proud to be an Indiana McKinney School of Law alum, and thankful for the opportunity provided by the MCOP and the Program in International Human Rights Law.

Brent M. Pierce, J.D. ’10

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

Program in International Human Rights Law

Indiana University McKinney School of Law

From the Guantanamo defense: “This is Not What America is About”

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.”

Judge Pohl

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…)

Upcoming Trip to Guantanamo Bay for Al Nashiri hearings (Luke Purdy)

On the right, the hole in the side of the U.S.S. Cole that al Nashiri (left) is accused to have planned the bombing of. The U.S. ship was docked in a port in Yemen during the October 2000 attack that killed 17 U.S. sailors and wounded over 30.

During the first week of October 2014, I plan to travel to Guantanamo Bay, Cuba as a representative of the U.S. Military Commission Observation Project (MCOP), which is also known as the Gitmo Observer. While at GTMO, I plan to observe military proceedings in a capital case against Abd al-Rahim al Nashiri, whom the United States Government has accused of planning the bombing of the USS Cole in October 2000, which resulted in the deaths of 17 U.S. sailors.

The U.S. Military Commission Observation Project (MCOP or Gitmo Observer) was established by the IU McKinney Program in International Human Rights Law. MCOP was granted “NGO Observer Status” by the Pentagon in 2014. This means that MCOP representatives may travel to Guantanamo Bay (or view a secure video link at Fort Meade in Maryland) to observe trial procedures at GTMO that are otherwise inaccessible to the public.

As an NGO Observer, MCOP seeks to ensure that fair trial rights are afforded to all stakeholders in the observed proceedings. These stakeholders include the defendant(s), victims and family members of, and the prosecution. Representatives of MCOP will observe, document, critique, and analyze these proceedings with the help of a Fair Trials Manual and Checklist, which can be accessed here.

Photo of me taken during the 2014 summer in Pago Pago, American Samoa, during my IU McKinney Law International Human Rights Law internsip.

My Interest in the Guantanamo Bay Military Commissions

My interest in MCOP emerged from a variety of sources, including an overseas international human rights internship, classes in law school, and a growing desire to get more international human rights work experience, specifically in the context of military tribunals. (more…)

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.

Preparing to Travel to Guantanamo Bay (Jeff Papa)

Introduction

I am scheduled to travel to Guantanamo Bay, Cuba for pre-trial hearings beginning Monday, 15 September 2014. I have reviewed many documents related to the case I will monitor – against alleged senior al Qaeda in Iraq official named Hadi al Iraqi, who is said to have been a liaison with the Taliban. Hadi al Iraqi’s charge sheet is posted here on the Gitmo Observer website, where other basic Military Commission documents can be found.

My role is as an “NGO Observer”, sent to monitor the proceedings and determine for myself whether, based on the law and my observations of facts, I believe that stakeholders are receiving a fair trial. My most important tool for preparing for this mission is the newly launched Guantanamo Bay Fair Trial Checklist, which provides a framework for me to conduct monitoring.

The Guantanamo Bay Fair Trial Checklist

I have read and re-read the Guantanamo Bay Fair Trial Checklist, which is an innovative document created by Professor George Edwards, the Founding Director of the Program in International Human Rights Law (PIHRL) of the Indiana University McKinney School of Law. Edwards is also the founder of The Gitmo Observer – also known as the U.S. Military Commission Observation Project (MCOP) of the PIHRL.

Volume I of the Checklist identifies a list of right for stakeholders during pre-trial hearings. While this document will be further developed by PIHRL students at the McKinney Law School, the current version includes a comprehensive list of rights for victims, victim’s families, the accused, the prosecution, the press, and witnesses. The Checklist is very easy to use, and should be utilized by any observer of commission proceedings, whether they want to quickly learn basic facts or want to study in great detail a particular hearing.

The Checklist contains sources of domestic U.S. and international law for reference, and provides easy to understand, but comprehensive, checklists for each possible right, as well as general background information. If you review available background information about a particular hearing you will monitor, and then reading through this Checklist step by step, you will gain a very deep understanding of the issues involved, as well as the likely legal arguments, strengths and weaknesses of each party’s position.

An Objective / Neutral Source

The Checklist provides an objective, neutral framework for analyzing the commission proceedings. The Checklist will become the standard document for those new to commission observation, as well as for seasoned experts.

Checklist Volume 1

Volume I of the Checklist covers pre-trial hearing stage issues, as that is the current stage of the most Guantanamo Bay proceedings today. But many of the Checklist considerations are entirely relevant to other phases (pre-hearing, trial & judgment, and post-trial/post-judgment). Future Volumes of the Checklist are planned to cover these remaining phases in a comprehensive manner.

In the 2014 summer, I traveled to Ft. Meade, Maryland to observe a different Military Commission hearing. I did not have the benefit of the Checklist , which had not yet been created. I read many documents for the earlier proceeding. I wish I had had the Checklist then. In preparing for my hearings at Guantanamo Bay next week, I appreciate that the Checklist is well-organized and clarifies the issues in my mind, and provides a very logical flow regarding what issues are likely to arise in a particular proceeding.

This Checklist will become the standard for reviewing commission proceedings. Following the Checklist through its stages is easy to follow, and ensures that all issues are covered. The references to source law and rights within the document is also extremely helpful.

The full name of the Checklist is the Guantanamo Bay Fair Trial Checklist for U.S. Military Commission Participants and Observers: A Guide for Assessing Human Rights Protections for the Prosecution and the Defense, Victims and Victims’ Families, Witnesses, the Press, NGO Observers, and Other Military Commission Stakeholders.

A copy of the current draft of this excellent resource can be found at http://gitmoobserver.com/2014/08/12/guantanamo-bay-fair-trial-checklist-launches/

Guantanamo Bay Fair Trial Checklist Launched

Front Cover of the U.S. Military Commission Fair Trial Checklist launched by The Gitmo Observer at Guantanamo Bay on 12 August 2014 (as updated 22 August 2014)

The Gitmo Observer has launched a Guantanamo Bay Fair Trial Checklist to help guide those interested in Guantanamo Bay Military Commission pre-trial hearings and trials. It can be used by anyone who seeks to ascertain whether fair trial rights are being afforded to all Military Commission stakeholders, including the defense and prosecution, victims and victims’ families, witnesses, the press, and Non-Governmental Organization (NGO) Observers.

NGO representatives who travel to Guantanamo Bay, Cuba to monitor military commissions may find the Guantanamo Bay Fair Trial Checklist to be a particularly useful tool, as they carry out the remits of their sending organizations.

Professor George Edwards of Indiana University McKinney School of Law founded The Gitmo Observer, and is the principal author of the Guantanamo Bay Fair Trial Checklist.

Professor Edwards said “I hope the Fair Trial Checklist provides a framework for NGO Observers and others who are assessing whether the Guantanamo Bay system meets international and U.S. standards for a fair trial. The Checklist identifies binding rules of international and U.S. law, and presents a series of questions that observers might consider in their fair trial analysis”.

The Guantanamo Bay Fair Trial Checklist was launched on 12 August 2014, from Expeditionary Legal Complex at Guantanamo Bay, Cuba, where Professor Edwards is monitoring pre-trial hearings in the case against Khalid Shaik Mohammed and other alleged masterminds of the September 2001 attacks on the World Trade Center and the Pentagon.

A limited number of copies of the GGuantanamo Bay Fair Trial Checklist are available for distribution in the Guantanamo Bay NGO Internet Lounge. Copies are available for download below at this link:

Click here — Guantanamo Bay Fair Trial Checklist

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