Fair Trial Manual

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

Reporting from Andrews Air Force Base

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

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

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

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

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

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

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

Nashwan al Tamir / Abd Hadi al Iraqi

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

Reduced Hearing Schedule

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

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

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

Conclusion

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

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

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

Voter Protection Legal Fellow
Indiana Democratic Party

Jacob.Irven@gmail.com

Updated Guantanamo Bay Fair Trial Manual & “Know Before You Go to Guantanamo” Guide

The Gitmo Observer has updated 4 draft documents useful for anyone interested in the Guantanamo Bay, Cuba U.S. Military Commissions, and for anyone traveling to Guantanamo Bay for hearings or other purposes.

Each document is in a preliminary draft stage, with further research, writing and editing underway. Nevertheless, the Gitmo Observer hopes that these materials are helpful.

The documents, which are available for free download below, are:

guantanamo-bay-fair-trial-manual-vol-i-26-february-2017-first-page-pink(1)    Guantanamo Bay Fair Trial Manual (Volume I) – (pink cover – 344 pages) (27 February 2017)

Lists the international and domestic law applied at the Guantanamo military commissions, explains the law, and identifies how the law affects Guantanamo stakeholders, such as the defense, prosecution, victims and victims’ families, witnesses, U.S. military who guard the detainees, the media, and other stakeholders. Explores rights and interests of all stakeholders, not just rights of the defense. 

Contains a useful Glossary for military and legal terms, and for items associated with Guantanamo Bay.

 

guantanamo-bay-fair-trial-manual-vol-ii-26-february-2017-first-page-blue(2)    Appendices to Guantanamo Bay Fair Trial Manual (Volume II) (blue cover – 268 pages) (27 February 2017)

Contains important law documents related to the proceedings, such as the charge sheets (indictments) of the 3 major pending cases, and excerpts from binding human rights and humanitarian law treaties (e.g., Geneva Conventions, Convention Against Torture, Civil & Political Rights Covenant, Race Convention),  the U.S. Constitution, U.S. Supreme Court cases, the Military Commissions Act, Presidential Executive Orders,  and military commission jurisprudence.

 

 

 

(3)    Guantanamo Bay Fair Trial Manual Excerpts (yellow cover — 102 pages) (27 February 2017)guantanamo-bay-manual-excerpts-27-february-2017-yellow-front-cover

A selection of important sections of the Full Guantanamo Bay Fair Trial ManualProvides background information on the military commissions, descriptions of the 3 active Guantanamo Bay hearings, list of previously convicted detainees, the status of current detainees, a schematic of the courtroom (identifying principal courtroom actors), and a Glossary of military and legal terms, and for items associated with Guantanamo Bay.

 

 

 

 

(4)    Know Before You Go To Guantanamo Bay — Tips & Suggestions (green cover — 76 know-before-u-go-to-gitmo-29-dec-2016-front-coverpages) (29 December 2016)

A guide for anyone traveling to Guantanamo Bay for military commission hearings, client visits, media trips, or other purposes. Contains substantial information geared towards non-governmental organization representatives traveling to observe Guantanamo hearings, but much of the information is useful for any traveler. Contains information about lodging, Guantanamo Bay restaurants, evening / weekend adult entertainment (bars), water activities (beaches, boating, swimming),  outdoor activities (hiking, golf, tennis, etc), other sports (bowling, pool), movie theaters, gyms, religious activities (services, fellowships), and more.

 

 

If you have any comments or suggestions for our four documents, please feel free to let us know at GitmoObserver@yahoo.com.

We have received very positive, constructive feedback in the past, and we look forward to further input from you!

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

bp-picFrom 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.

ksm-picWhat 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

Are you going to Guantanamo? New Manual Excerpts for NGO Observers & Others

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Click this link for the full Manual — over 500 pages. Below you can download the Manual Excerpts!

If you’re going to Guantanamo Bay in January 2017, you might be interested in our new Guantanamo Bay Fair Trial Manual: Excerpts that offers insights into:

  • what the right to a fair trial is and how a fair trial should look
  • how to assess whether a fair trial is being afforded to all Guantanamo stakeholders
  • roles & responsibilities of independent Observers sent to monitor Guantanamo hearings
  • background info on Guantanamo the military commissions
  • a schematic of the courtroom (so you can know who is who)
  • and a 76 page “Know Before You Go To Guantanamo” insert that will tell you what to expect on your flight to Cuba, the ferry ride across Guantanamo Bay from the landing strip to your Quonset Hut accommodations, base security, food (which can be quite good!), beach, boating, and of course the courtroom, the hearings, and briefings by the prosecution and defense.

In the past, the Gitmo Observer (of Indiana University McKinney School of Law) distributed Manual Excerpts to Observers after we arrived at Andrews Air Force on the morning of our flight to Cuba (or distributed at Ft. Meade, Maryland, for Observers monitoring live by secure video-link from Cuba). Observers said they wish they had had it earlier.

So, we started to e-mail the Manual Excerpts to Observers as soon as we were sent e-mail addresses of Observers scheduled to travel, and we would receive those e-mails 3 – 6 days before the scheduled departure. Observers said that they wish they had it even earlier than that, that 3 – 6 days in advance wasn’t enough time.

So now we are posting the Manual Excerpts on this site, for access by anyone interested, whether or note traveling to Guantanamo Bay (or Ft. Meade or elsewhere), but especially for those traveling to Guantanamo Bay to monitor 3 weeks of January 2017 hearings. Ideally, about 40 independent observers would travel to Gitmo this month, to fill all the slots allocated to observers.

The Defense Department has stated that it favors strong and robust transparency. Having full complements of Observers for each hearing week would help promote transparency, human rights, and the rule of law for all military commission stakeholders (with stakeholders including the defense, the prosecution, victims and their families, witnesses, the media, observers, observer escorts / minders, the public, the U.S. soldiers and others who operate the detention facilities, the military commission court staff, and others).

Here are the Excerpts! Please let us know if you have any suggestions for improving our Excerpts, our full Guantanamo Bay Fair Trial Manual (over 500 pages in 2 volumes!) and our Know Before You Go To Guantanamo Guide (76 pages). Send to GitmoObserver@yahoo.com

Awaiting Departure to Guantanamo Bay, Cuba

I am now at Joint Base Andrews Naval Air Facility Washington, known as JBA – Joint Base

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Reading the Guantanamo Bay Fair Trial Manual the night before departure.

Andrews – awaiting my departure at 08:00. I was picked up, along with three other NGO Observers, at 04:00, at a hotel just outside of JBA. The check-in process was quick and very similar to checking into a civilian airport.

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Boarding ticket

We are fly to Guantanamo Bay to monitor hearings in the case against Khalid Shaik Mohammad and four other alleged masterminds of the September 11 attack on the World Trade Center and the Pentagon. The flight is scheduled to depart at 08:00. The original departure time was 10:00. I heard that the flight was moved up two hours because the pilot would have been over hours for the day if the flight departed at 10:00.

The hearings are scheduled to run from December 5 – 9. I will be returning to JBA on December 1o.

I have met the other NGO’s Observers and distributed excerpts from the Guantanamo Bay Fair Trial Manual.

I will be departing soon, and my next post will be from Cuba.

Justin W. Jones (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University McKinney School of Law

Preparing to travel to Guantanamo Bay to monitor 9/11 hearings

I was selected to travel to Guantanamo Bay, Cuba to monitor the U.S. Military Commission in the case against the alleged masterminds of 9/11. I was approached just over a week ago by Professor Edwards when he was inquiring into my availability to travel to Guantanamo Bay either the first or second week of December. He informed me that there was no guarantee of nomination or acceptance, but I was very excited to even have the possibility of traveling to Guantanamo Bay to monitor the 9/11 hearings. I quickly responded that I was available to monitor the hearing during the first week of December. Less than 24 hours later I was on a video conference with Professor Edwards regarding my interest in traveling to Guantanamo Bay to monitor the 9/11 pre-trial hearing. I was nominated by the Program a few hours later and my information was sent to the Pentagon for selection approval. To my surprise, less than three hours after being nominated by the Program, I received the following email from the Office of Military Commissions (OMC) – Convening Authority:

Good afternoon Justin,

You have been CONFIRMED to observe the December 5-9 9/11 military commission in-person at Guantanamo Bay, Cuba. We are scheduled to depart Andrews Air Force Base at 1000 on Saturday, December 3, 2016, and will return on Saturday, December 10, 2016, around 1330.

I was very excited to have received the confirmation, and I was incredibly surprised that it occurred so quickly. I was concerned that the process might be slowed down by the upcoming holiday, so I was very happy to have received the confirmation the same day.

The Logistics

On the evening of December 2nd, I will be arriving at Ronald Reagan Washington National Airport, Arlington, VA. That night I will be staying at a hotel at Joint Base Andrews in Maryland. Joint Base Andrews was formed when Andrews Air Force base and Naval Air Facility Washington merged in 2009. I am scheduled to deparusbaset Joint Base Andrews at 10:00 a.m. on Saturday, December 3rd. I plan to arrive at Guantanamo Bay from December 3rd until December 10th. Travel plans have frequently changed during other NGOs’ missions, so I am trying to book refundable tickets in case anything changes in the next week. I currently do not have any information on the type of plane or the estimated time of arrival in Guantanamo Bay.

Paperwork

In the email that I received from the OMC – Convening Authority, I was informed that I would need to complete and return four documents: (1) a hold harmless agreement, (2) an invitational travel worksheet, (3) a Department of Navy base access pass registration, and (4) the NGO ground rules. Aline Fagundes was kind enough to provide me with copies of

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Aline at Guantanamo Bay

her paperwork so that I could use them as a guide to properly fill out my forms. The forms are generally self-explanatory; however, there are some parts of the forms that would be difficult to accurately fill out without having a sample. I am currently working on creating a pdf with sample forms and instructions for completing the four documents required by the OMC.

I did run into an issue with sending the documents back to the OMC. I sent the four documents as .pdf attachments. Three of them went through fine, but the OMC told me that one of the documents was too dark. I opened the document up and it looked great on my end. I resent the document but again the OMC stated that the document was too dark. I rescanned the document into individual pictures (not .pdf). Then I sent the document in two individual attachments, with one page in each attachment. This time the OMC was able to clearly read the document. I used the same scanner both times and both times the document was clear and legible on my end.

NOTE: If the OMC is having issues reading your document, try to send the document in .jpeg format instead of .pdf.

Preparing for the Hearing

                I still have a lot of work to do in the next week. First, I will

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Guantanamo Bay Fair Trial Manual

continue to review the Guantanamo Bay Fair Trial Manual. I will also be checking mc.mil to review the pleadings and filing that are currently available. Hopefully, by early next week, mc.mil will have more up-to-date postings. I will also be speaking with Aline because she was the last IU Affiliate to attend a 9/11 hearing. I was at Ft. Meade in October to observe the al Nashiri pre-trial hearing, see the blog post here, but I am not up-to-date on the 9/11 hearings yet.

 

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Justin at Ft. Meade

Conclusion

I am honored to have been selected to travel to Guantanamo Bay to monitor the 9/11 hearing. I look forward to documenting my experience and providing my analysis of the proceedings.

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

From Brazil to Guantanamo Bay, Cuba – Monitoring Military Commissions through the Eyes of a Judge

“Aline, we nominated you for the 9/11 week to travel to Guantanamo Bay to monitor hearings.”

This was the first sentence I had read on the morning of August 25, around 6 am, when, still in bed, I opened my mailbox on my phone. I could barely hold my excitement! The first step was given!

Well, let me start from the beginning…

My name is Aline Fagundes, I was born in Oakland, California, but I was raised in Brazil, where I received my first degree in law in 1993, from the Pontifical Catholic University of Rio Grande do Sul, in Porto Alegre. From 1993 to 2005 I worked as a trial attorney, and on September 23, 2005 I became a judge in the Labor Court.

fagundes-aline

In 2015 I applied for IU McKinney Master of Laws Program in Human Rights, certainly one of the best steps of my academic and professional life. Through the program I was introduced to a great variety of opportunities, all of them incredibly well supported by the Law School. For instance, I attended an externship at the Indiana Supreme Court, where I improved in networking, state matters and law, also made friends for life. The most recent activity I engaged is the Military Commission Observation Project (MCOP).

MCOP was established by IU McKinney Program in International Human Rights Law (PIHRL), once it was granted “NGO Observer Status” by The Pentagon’s Guantanamo Bay Convening Authority. Through MCOP, IU McKinney Affiliates can be selected to attend, observe, analyze and critique and report on hearings of the Guantanamo Bay detainees charged with war crimes. IU Affiliates can either travel to Guantanamo to observe in person, or monitor the proceedings from Ft. Meade, Maryland military base via secure video-link.

The selection process includes being nominated by the MCOP Advisory Council and having your name submitted to the Pentagon, who in last instance may grant or not the authorization to be an observer. In my case, I was nominated on August 24, 2016, and on September 9, just two days before the 15th anniversary of the September 11 Attack on the World Trade Center, I received this message from the Pentagon:

“You have been CONFIRMED to observe the 11-14 Oct military commission in-person at Guantanamo Bay, Cuba. We are currently scheduled to depart Andrews Air Force Base at 1000 on Saturday, Oct 8, 2016, and will return on Saturday, Oct 15, 2016, around 1330.”

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Khalid Shaik Mohammed, the lead defendant in the 9/11 case against 5 alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon.

The date was extremely significant. The hearings I am scheduled to attend are in the case against defendant Khalid Shaik Mohammad, and four other alleged masterminds of the September 11 Attack on the World Trade Center and the Pentagon. It has been 15 years since that attack, and the defendants in that case are still in the middle of pre-trial hearings.

Logistics of the mission to Guantanamo Bay

Since I have received that message about the Pentagon accepting me to travel to Guantanamo Bay, I could not stop thinking about Guantanamo Bay all the time. I am expected to travel from Indianapolis to Andrews Air Force Base (where is based Air Force One, the United States Air Force aircraft carrying the President of the United States). At Andrews, I am expected to fly on a military transportation to Cuba, where I would stay in a military tent. Guantanamo Bay is a U.S. Naval Station (in 1903, Cuba signed a treaty that leased Guantanamo Bay to the United States for use as a Naval Station).

I plan to blog step by step my experience on behalf of the Indiana McKinney Military Commission Observation Project. It is part of my responsibility to be the eyes and ears from Guantanamo Bay to the outside world, as most people will never have the opportunity to travel there for these hearings. I hope to help promote transparency, to tell the outside world what I hear, see – what I experience as part of this Guantanamo Bay mission. I recognize that this mission has already begun, with my preparation. I plan to continue to blog before I go, while I am there, and after I return.

The academic meaning is even more exciting. If you search Guantanamo on the web, an enormous number of links will direct you to stories related to torture and human rights violations. Unfortunately, an expressive number of it are true, or were true. The fact that the United States are taking action in order to provide transparency represents a lot, and to be granted the opportunity of working on this goal is a tremendous responsibility. After my journey to Guantanamo Bay, I will have a better idea about how transparent the process really is.

Guantanamo Bay Fair Trial Manual

As part of my mission, I will be contributing to the Guantanamo Bay Fair Trial Manual, that Professor George Edwards is creating with students to help observers / monitors and others interested in the rights of and interests of Guantanamo Bay stakeholders. We are reminded that not only do the defendants have rights, but also other individuals and groups have rights and interests, including the prosecution, victims and their families, witnesses, men and women who guard the detainees, the media, and the domestic U.S. and international communities. I hope to share information about and with the full range of stakeholders.

Through the Manual and the observing / monitoring that I and others do at Guantanamo Bay, we are helping to ensure that “whatever happens in Guantanamo does not stay in Guantanamo”. Information is important, and I will do my best to help ensure that knowledge about Guantanamo Bay is share with others on the outside.

I am proudly part of the Guantanamo Bay Fair Trial Manual project, and proudly part of the Military Commission Observation Project of Indiana University McKinney School of Laws’ Program in International Human Rights Law.

 

Aline Fagundes (LL.M. Candidate, ’17)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

 

All of my comments above are mine and mine alone, written in my personal capacity, and not in the capacity as a Judge, and do not necessarily reflect the opinions of Indiana McKinney’s MCOP, the PIHRL, or any other individual or group.

 

Guantanamo Bay Hearing for USS Cole Bombing Suspect

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

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

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

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

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

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

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

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

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

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

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

Courts’ jurisdiction

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

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

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

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

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

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

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

al Nashiri

al Nashiri

Pre-trial Issues in his case

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

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

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

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

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

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

At Camp X-Ray, Guantanamo Bay

At Camp X-Ray, Guantanamo Bay — George Edwards

My four 2016 summer trips to Cuba

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

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

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

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

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

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

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

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

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

NBA - Group of law professors at end

NBA law professors at Cuban lawyers collective.

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

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

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

Docketing Order – Motions on the schedule to be heard

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

My travel to observe Guantanamo Bay hearings in the case against alleged 9/11 plotters

Klein & Edwards at Ft. Meade Commisary -- 18 July 2016

At the Ft. Meade Commissary.

 Today I traveled to Ft. Meade, Maryland to observe pre-trial hearings in the criminal case against 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon. The hearings are being broadcast live from Guantanamo Bay, Cuba, into the Post Theater at the Fort Meade Army Base, and can be viewed there by media, human rights non-governmental organizations (NGOs), victims and victims’ families, and other stakeholders.

I traveled there as an official NGO Observer sponsored by the Military Commission Observation Project (MCOP), which Professor George Edwards founded at Indiana University McKinney School of Law. Our Project, which is also referred to as the Gitmo Observer, has sent dozens of IU McKinney Affiliates — faculty, staff, students and graduates  — to Guantanamo Bay, Cuba and Ft. Meade to attend, observe, analyze, critique and report on these hearings.

My trip to Maryland – Sunday

I flew to Maryland last night, and had time to re-review the wealth of background material the Project provided.  One important resource is the Guantanamo Bay Fair Trial Manual – with lead author Professor Edwards, and whose researchers have included many IU McKinney affiliates. The Manual provides significant information — general and basic, as well as highly specialized information — about the military commissions. It summarizes the applicable law, explains the charges, identifies the individuals and entities who have rights and interests associated with the tribunal, describes a plan that Observes might follow as they carry out their observation mission, and even provides a chart of a who’s who in the courtroom. The Manual is a must read for anyone interested in Guantanamo Bay hearings.

Dean Klein & Professor Edwards in front of the McGill Training Center, the new site for Guantanamo video viewing.

We are in front of the McGill Training Center, the new site for Guantanamo video viewing.

Closed hearing – Monday morning

Early this morning I met Professor Edwards at the hotel, and discussed final details before we went to the army base, which happens to be the home of the National Security Agency (NSA) and other intelligence entities.

We were forced to modify our plans to observe hearings of Khalid Shaikh Mohammad (who was waterboarded 183 times) and the other 4 defendants accused of planning the September 11th attacks. We learned that the military judge decided that today’s hearings would be “closed”, meaning that Observers were not permitted to observe. I was disappointed that I would not have a chance to witness today’s hearings. But, it was still a very worthwhile trip.

 What we did at Ft. Meade – hurdles & highlights

The day had highlights and hurdles.  I’ll mention some below.

First, Fort Meade recently instituted security procedures that require new visitors to stop at the Visitor Center at the base’s Main Gate (Reece Road Gate) and collect a hard plastic badge. Ordinarily Observers would submit their personal information 10 days before they arrive for a hearing, and can pick up their sturdy badges quickly at the Visitor Center.  These procedures apply not only to military commission observers, but also to anyone with business on the base, and includes civilians visiting family.

We arrived at the Visitor Center to pick up my badge. We had quite a wait. There were dozens of other people also seeking to get badges. I was grateful that Professor Edwards had a permanent Ft. Meade badge, which made it easier for me to get processed in.  The good news is that once you get cleared, you can swipe your badge at any of the gates and drive onto the base, directly to the viewing site.

A word to the wise for IU  McKinney Affiliates who plan to observe Guantanamo Bay hearings at Fort Meade:  Bring your drivers’ license and passport, and arrive early.

Dean Klein reading a copy of the Guantanamo Bay Fair Trial Manual -- Volume I.

The Guantanamo Bay Fair Trial Manual is an invaluable tool to help prepare for an Observation mission.

Second, after I gained clearance to enter the base, Professor Edwards and I went to the McGill Training Center, which will soon be the new permanent site for video observations of Guantanamo proceedings.  (Until now, all the video hearings were broadcast into a large auditorium at the Post Theater, where they show feature films in the evenings and on weekends.)  A staff member escorted Professor Edwards and me through the training center, and explained that the site change had been made for several reasons, including the ability to move hearings to a variety of different rooms to enhance security by keeping exact screening locations unknown until the hearings take place.  Most of the rooms at the training center are also much smaller than the Post Theater auditorium, which may make sense since at times only a small number of Observers attend hearings on the base.

Outside the Post Theater, where "Central Intelligence" was being screened -- $6.00 for adults, and $3.50 for children.

Outside the Post Theater, where “Central Intelligence” was being screened — $6.00 for adults, and $3.50 for children.

Third, Professor Edwards and I went by the Post Theater, where many IU McKinney Affiliates have viewed Guantanamo proceedings. Unfortunately, the doors were locked and we couldn’t go inside. But, based on what I have heard about the actual theater – that happens to be showing the PG film “Central Intelligence” now (see photo) – it’s very much like a Broadway theater with a big screen set up on the stage to show the Guantanamo Bay feed.

Fourth, Professor Edwards was able to brief me on the status of the Khalid Shaikh Mohammad 9/11 hearings, the substance of some of the upcoming motion hearings that I had hoped to observe today, other cases pending for trial, and the one convicted detainee who is awaiting sentencing.  He also briefed me on the Periodic Review Board (PRB) that he observed at the Pentagon on Thursday the 14th, in which a Libyan detainee asked the Board to send him back to Libya or to a third country for resettlement. That PRB observation is through the IU McKinney Periodic Review Board Project.

Fifth, it was good to tour the facilities mentioned above. It was also interesting to drive around the base, appreciate its size and the breadth of work performed there.

Klein at Ft. Meade - in front of Post Theater sign - 18 July 2016

Another shot in front of the Post Theater

Conclusion

Although I was disappointed that I could not observe a hearing today, I am glad that I made the trip, and I am proud that the McKinney School of Law and our Military Commission Observation Project provides this very special opportunity to members of our community.

Every IU McKinney Affiliate – faculty, staff, student, graduate — is invited to register for the possibility of undertaking an Observer mission to Ft. Meade, or to Guantanamo Bay, Cuba, itself.  Details about this process can be found here.

By Andrew (Andy) Klein

Dean & Beam Professor of Law

Indiana University McKinney School of Law

Posted by George Edwards on behalf of Dean Klein

_______

Indiana Law Dean Travels to Ft. Meade for Guantanamo Bay, Cuba Hearings

Klein & Edwards at Ft. Meade Commisary -- 18 July 2016

Dean Klein (right) and Professor Edwards at the Ft. Meade Commissary.

Andy Klein, dean of the Indiana University McKinney School of Law, traveled to Ft. Meade, Maryland to observe war crimes hearings broadcast live from Guantanamo Bay, Cuba. Dean Klein was an official Non-Governmental Organization (NGO) Observer, sponsored by IU McKinney’s Military Commission Observation Project (MCOP), that was founded by Professor George Edwards, who joined Dean Klein on this observation mission.

The Pentagon granted the IU McKinney project permission to send IU McKinney Affiliates — students, faculty, staff, and graduates — to Guantanamo Bay to view proceedings live and to Ft. Meade to view via secure video feed. Dean Klein is the most recent of the dozens of IU McKinney Affiliates selected for observation missions, during which they attend, observe, analyze, critique and report on these hearings.

Klein & Edwards at Ft. Meade Post Theater -- 18 July 2016

Dean Klein & Professor Edwards at Ft. Meade’s Post Theater, where war crimes hearings from Guantanamo Bay are viewed during the day, and “Central Intelligence” and other movies are viewed at night.

This week’s pre-trial hearings, scheduled for 18 – 22 July, are in the criminal case against five alleged masterminds of and participants in the 9/11 attacks on the World Trade Center and Pentagon. They include Khalid Shaik Mohammed, who is the alleged chief architect of the 9/11 attacks, along with four others including alleged would-be hijackers who were prevented from participating due to visa denials and other reasons, men who allegedly transferred money for the flight training for hijackers, and men who otherwise assisted in the plot that resulted in almost 3,000 dead. Their charges include murder in violation of the laws of war and hijacking.

Typically, first time NGO Observers, such as Dean Klein, stop at the Ft. Meade Visitor Center to gain clearance and then pick up a badge to enter the base.

Dean Klein noted that though they arrived early to pick up his badge they had “quite a wait, made longer because they didn’t have my original paperwork submitted weeks ago and I had to re-register on the spot. Also, there were dozens of other people also seeking to get badges. Fortunately Professor Edwards already had his permanent Ft. Meade badge, which made it easier for me to get processed in.”

Dean Klein & Professor Edwards in front of the McGill Training Center, the new site for Guantanamo video viewing.

Dean Klein & Professor Edwards in front of the McGill Training Center, the new site for Guantanamo video viewing.

After the badging process, NGO Observers then travel to the base’s secure viewing site, which has been the Post Theater (that also shows feature films on weekends), but is shifting to the McGill Training Center, also on the base.

When Dean Klein and Professor Edwards arrived at the viewing center, it was confirmed that the military judge presiding over the 9/11 case had decided that today’s hearings would be “closed”, meaning that NGOs Observers were not permitted to observe.  Both Dean Klein and Professor Edwards noted that despite the absence of an open hearing, the pair had a productive morning at Ft. Meade.

Dean Klein said “I was disappointed that today’s hearings were closed. But, coming to Ft. Meade has offered great insights into our Military Commission Observation Project, and the contributions of IU McKinney on the topic of rights and interests of all Guantanamo Bay stakeholders. Our trip to Ft. Meade was very worthwhile.”

Professor Edwards said “If the hearings had been open, Dean Klein and I would not have been able to tour facilities that would have been unavailable during an open session, and we would not have been able to talk with people who would have been otherwise engaged during an open hearing. Our behind-the-scenes experience at Ft. Meade was enlightening, and would not have been possible had we been watching video feed from Guantanamo that day”.

All IU McKinney Observers contribute to the Guantanamo Bay Fair Trial Manual, of which Professor Edwards is the main author, that provides significant information — general and basic, as well as highly specialized information — about the military commissions. The Manual also contains information about Guantanamo Bay Periodic Review Boards, special proceedings held at Guantanamo Bay and viewable on video at the Pentagon, during which Guantanamo detainees may request repatriation to their home country or resettlement in a third country.

Dean Klein reading a copy of the Guantanamo Bay Fair Trial Manual -- Volume I.

Dean Klein reading a copy of the Guantanamo Bay Fair Trial Manual — Volume I.

The Manual summarizes the applicable law, explains the charges, identifies the individuals and entities who have rights and interests associated with the tribunal, describes a plan that Observes might follow as they carry out their observation mission, and even provides a chart of a who’s who in the courtroom.

Dean Klein said: The Manual is a must read for anyone interested in Guantanamo Bay hearings, and a special must read for anyone doing an Observation mission to Ft. Meade or Guantanamo Bay.”

Dean Klein summarized his Ft. Meade experience, and his recognition of Professor Edwards and his Guantanamo Bay work:

Although I was disappointed that I could not observe a hearing today, I am glad that I made the trip, and I am proud that the McKinney School of Law and our Military Commission Observation Project provides this very special opportunity to members of our community.

Professor Edwards noted that “every IU McKinney Affiliate – faculty, staff, student, graduate — is invited to register for the possibility of undertaking an Observer mission to Ft. Meade, or to Guantanamo Bay, Cuba, itself.  Details about this process can be found on the IU McKinney website. We hope that our Affiliates may also be able to observe Periodic Review Boards at the Pentagon, and we will post notices if Pentagon observation opportunities become available to assist out Periodic Review Board Project”.

_______

31 May 2016 Hearing in 9/11 Case — Tuesday At Camp Justice, Guantanamo Bay, Cuba

 

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

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

Today’s hearings in the 9/11 case started on time in the Guantanamo Bay courtroom.

Defendants KSM, Ramzi bin al Shibh, and Ali Abdul Axis Ali (aka Ammar al Baluchi or “Triple A” or “AAA”) were present when I walked into the Gallery.  The other two defendants chose not to appear, which is not uncommon.

The Gallery is a small room with soundproof clear glass through which NGO Observers, Victim’s Family Members, Media, and other visitors are able to watch the hearings.  The Gallery has several televisions that show the hearings, with audio on a 40 second delay.  We can see what is happening live through the Gallery glass, and 40 seconds later see what we just saw on the TV.  It is only through the TV that we can hear what happened in the courtroom, 40 seconds after it actually happened.  The purpose of the delay is to prevent the release of classified/confidential information.

There is a curtain in the Gallery separating separating the media and Non Governmental Organization (“NGO”) observers from the victims and victims’ families.  The curtain is usually not in use. I have already written about the selection and approval process which allowed me to attend these hearings as an NGO observer. Victims and Victims’ family are chosen based on a lottery system.

Today’s Motions

The day’s hearing touched on three sets of motions:

  1. AE 018: The hearings on these motions deal with how certain information is treated and released to either the parties or nonparty actors.  I believe there were a total of 13 AE 018 motions on the docket for the week’s hearings.
  1. AE 422: The 422 motion was filed by the Government. The Government seeks the deposition of family members of the victims of September 11, 2001 during public pre-trial hearings scheduled for 4-14 October 2016.
  1. AE 133: This motion was filed by the Defense. It is an Emergency Motion to Remove Sustained Barrier to Attorney-Client Communication and Prohibit any Electronic Monitoring and Recording of Attorney-Client Communication in any Location, including Commission Proceedings, Holding Cells, and Meeting Facilities and to Abate Proceedings.

All the filings related to each motion can be found on the military commission website. Howeve,r not all will be public. http://www.mc.mil/CASES/MilitaryCommissions.aspx

 AE 018

I will not discuss each motion that falls under AE 018, but generally they deal with how communications and information can be released, how those communications are reviewed by the various security processes, and the format and timeliness of prosecution’s discovery responses.  There are processes in place for the how various communications are to be reviewed and delivered, however the processes continue to evolve as the litigation continues.  The discussions on these motions appear to be good examples of the types of issues that have delayed the 9/11 trial.  A few of the specific AE 018 motions are:

  1. AE 018 BB: Government Emergency Motion for Interim Order and Clarification that the Commission’s Order in AE 018U Does Not Create a Means for Non-Privileged Communications to Circumvent the Joint Task Force Mail System.
  2. AE 018EE: Defense Motion to Compel Discovery Responsive to Mr. Mohammad’s Request for Discovery Dated 14 March 2014. (emphasis added)
  3. AE 018 KK: Defense Motion to Invalidate Non-Legal Mai Restrictions Unrelated to Legitimate Penological Interests.
  4. AE 018MM: Defense Motion to Compel Reasonable Privilege Review Team Hours of Operation.

AE 422

This motion was filed by the prosecution to conduct depositions of certain witnesses. Specifically, the prosecution seeks to depose 10 victims’ family members during the October 2016 hearing. The prosecution wants the depositions conducted in open session at Guantanamo Bay, during the October 2016 hearing.  The prosecution cited ages and health concerns, the uncertain posture of the case, and the logistical difficulties for potential witnesses to travel during the actual trial.

The defense generally agreed with the need for depositions but expressed expected concerns about holding the depositions in open court and the proposed dates.  The defense teams were not all on the same page with respect to the deposition issue, but some of the arguments expressed by the defense were:

  • public hearing will taint potential panel members (jury)
  • there is no need to preserve the testimony because there are so many witnesses
  • the age and health of potential witnesses is not a factor
  • there is no need to have the depositions in open court if the evidence may never be admitted
  • if the prosecution wants to preserve evidence for the elderly and those in poor health, bringing them to Guantanamo Bay would be counterproductive
  • it does not make sense to have public depositions so close to the election
  • there is a difference between having the victims’ voice heard and presented vs. creating a public spectacle

I tend to side with the defense, and if I were to bet, I would bet that depositions will take place, but not in open session and not during the proposed dates. A very recent article by Carol Rosenberg on this issue.

AE 133

This is an ongoing motion dealing with allegations that the government has been trying to pierce the attorney – client privilege.  The defense is concerned that they are subject to monitoring which prevents frank exchanges between the attorney and the client.  The motion stems from the finding of microphones in fire detectors in rooms that were used for attorney/client meetings.

I suggest reading the AE 133 motions on the military commission website.  The discovery of these microphones is documented.

The prosecution stated that while the recording capabilities were present, they were not used during attorney/client meetings. The prosecution stated that while the microphones were used for other law enforcement purposes in the past, they have not been used to monitor attorney/client meetings related to these trials.

Mustafa_al-Hawsawi_2012My Personal Observations

One issue that stood out for me was the AE 018MM Motion.  This motion was filed by the defense to compel the Privilege Review Team (“PRT”) to have reasonable hours of operation.  The Privilege Review Team, among other duties, reviews all documents that are taken to a detainee, including any notes attorneys may bring to an attorney client meeting.  If the PRT is not operating, then the team of attorneys cannot take any notes into the meeting.  Counsel for Hawsawi told the Judge that the PRT was not “open” on the Saturday and Sunday before Monday’s (Memorial Day) hearing, so they had to meet with their client without being able to bring any notes.  To me, this sounds outrageous.  How is it possible that a team of attorneys who are only able to see their client during very limited hours, after chartering a military flight that flies infrequently, are not able to bring in notes to a client a day before the hearing just because staff of the Period Review Team did not want to work?

I was initially “convinced” by the defense arguments. However, the prosecution presented a different side to the story.

The prosecution argued that PRT staff are like any other employees and it is not unreasonable for them to have the weekend off, especially a holiday weekend.  Additionally, the prosecution stated that the PRT is available as long as appointments are made in advance.  Prosecution also stated that it is not uncommon for the defense team to not show up to scheduled appointments.  After the prosecution presented their argument I was less outraged, and more confused.

I noticed this sway in many of the arguments I have seen in my limited experience with the Military Commission: the movant pulls on emotional strings and presents facts that help their case, the opposing party presents facts in a way that appear to be unemotional and paint a fuller picture.  In the end, I am happy I don’t have the burden of having to make a decision.  Having only been at Guantanamo Bay for a few days, and only being able to see what I am allowed to see, I find it very difficult to have a strong opinion one way or the other.  It is difficult to gather unbiased information because of the emotions and passions tied to the subject matter.  Information I receive could be driven by agendas that I do or do not understand.  I have made an effort to keep a neutral point of view in order to allow me to gather as much information as possible before I start to lose impartiality.

AE 422

The hearing on AE 422 was understandably emotional.  The curtain separating the media and NGOs from the victims’ family members was drawn shut.  The parties argued about the prosecution’s motion to depose, in public court, family members of the 9/11 victims.  One particular testimony would revolve around a telephone conversation occurring as a plane hijacking was taking place, just before United 175 flew into the South Tower.  The arguments went into additional details, which I will not do here, but the hearing’s transcript is available on the website of the Military Commission.

KSM was also emotional.  He, without the Judge’s permission, expressed his feelings regarding the proceedings.  I could not make out everything that was said but part of it dealt with the fact that his attorney is an American person and is representing American interest, which is not neutral.  Judge Pohl responded with, “one more word and you’re leaving”.   Later, Mr. Nevin (Lead Counsel for KSM) explained that his client was upset because an objection was overruled and that a lack of an interpreter prevented the defendant from understanding the meaning of “deposition”.

Wednesday

On Wednesday the Commission held hearings open to NGOs, Media, and Victims’ of Family Members in the morning session; the Commission held closed session in the afternoon.  I will write about these later, but I need to get some rest before the hearings tomorrow.  The hearings tomorrow are scheduled to include two witnesses.  Both of the witnesses are high value detainees who have not been charged with a crime.  They will testify during the hearing on AE 152 which is the Emergency Motion for Show Cause Why the Government, JTF Camp Commander and JTF Guard Force Members Should Not Be Held in Contempt.  The motion’s allegation is that Mr. Bin al Shibh continues to be subjected to external sounds and vibrations while detained.  Hassan Guleed is expected to testify at 10 in the morning and Abu Zubaydah is expected to testify at the start of the afternoon session.

Leontiy Korolev, J.D., Indiana University McKinney School of Law

Participant, Military Commission Observation Project (MCOP), Program in International Human Rights Law (PIHRL), Indiana University McKinney School of Law

My Scheduled Trip to Guantanamo Bay

My name is Leontiy Korolev and I am very excited by the possibility of traveling to Guantanamo Bay to observe hearings in the U.S. Military Commission case against Hadi al Iraqi on 26 and 27 January 2016.

I graduated from Indiana University McKinney School of Law a few years ago, and now work as an attorney for the State of Indiana.  In Law School, I was president of the International Human Rights Law Society and had the honor of receiving a scholarship to travel to Geneva, Switzerland as an extern for the Program in International Human Rights Law. For a while after Law School I was a research assistant for the Program in International Human Rights Law, and assisted with drafting and researching parts of GuanFT Manualtanamo Bay Fair Trial Manual.

Case Background

The Office of the Military Commission provides background information on the Guantanamo Bay Trials including any official documents that have been released to the public. The Charge Sheet is an interesting read and lays out the U.S. Government’s charges against Hadi al Iraqi.  The specific charges are found on pages 10-12 of the Charge Sheet dated 02/10/2014. The five charges allege that Hadi al Iraqi committed the following crimes: (1) denying quarter, (2) attacking protected property, (3) using treachery or perfidy, (4) attempted use of treachery or perfidy, and (5) conspiracy. It is important to note that there are numerous news sources available online and elsewhere about the allegations and Hadi al Iraqi; the Charge Sheet only provides the Governments allegations.

But learning about Hadi is only part of my preparation. I also have to learn about what my responsibilities are as an “observer” or “monitor”.

The Guantanamo Bay Fair Trial Manual contains a chapter about the Role of the Observer / Monitor. I understand that I am to attend, observer, analyze, critique and report on U.S. Military Commission hearings.  I am looking forward to digging into the Manual and learning more about the role of the Observer/Monitor. Professor Edwards provided the following summary of the role of the Observer/Monitor: “We are observers, and have an opportunity to see, hear and learn things that other stakeholders are not privy to. We are the eyes and ears into the Commissions for the outside world. If we do not post information, outsiders will not know. We have undertaken to send people to Ft. Meade & GTMO in great part to provide insights for those who cannot go. So, if we do not post, stakeholders and others of interest do not find out.”

Approval Process

There are a handful of blogs below that provide some background on the Hadi al Iraqi trials, however I do think that think there may be at least a few people interested in reading about how one is able to travel to Guantanamo Bay and the steps that were taken to apply as well as the steps that needed to be taken to “finalize” travel.  Finalize is in quotes because I write this, unfortunately knowing that the hearing could be continued at any moment, perhaps even during my drive to Andrews Airforce Base.  Of course it could also be continued as I fly on a military jet to Cuba, but I think that alone would be an experience, so it wouldn’t be the end of the world.  The trial could also be continued after I land, which would then leave me with a few days in Cuba, which is not the worst thing in the world either! UPDATE: the hearing was actually cancelled the day before I was set to travel, but I will cover the cancellation in a future post.

I have scoured my inbox to see the exact date of my application and it looks like my first application to participate as an observer in the Military Commission Observation Project of the Indiana University McKinney School of Law’s Program in International Human Rights Law was in March 2015.  I remember waiting and hoping for the opportunity but as time went by, I was convinced the opportunity would escape me.  It had been months since I thought I may yet have the chance to observe the Guantanamo Bay Trials in person, at Camp Justice.

The process has been a practice in managing expectation and curbing my enthusiasm.  I waited to hear back after applying the second time, but did not hold my breath.  Shortly after submitting the application I was informed that I had been nominated to travel to Guantanamo Bay for the Hadi hearings. There was a caveat, the nomination did not mean anything unless I was approved to go by the Pentagon.  I don’t know about most of the readers, but I have never had to obtain approval from the Pentagon to do anything before.  Perhaps Pentagon approval should have been a given, but in my mind it certainly was not.

It seems like time stood still for the next 12 days.  The approval email finally arrived and I was given two weeks to submit a handful of additional documents to the Pentagon.  This may seem like plenty of time, but the approval came on December 23.  Not only were the holidays here but there was a very specific submission process.  The documents followed a complicated path.  The Pentagon sent them to me, I had to fill them out, scan them and send them to Indiana University McKinney School of Law’s Program in International Human Rights Law (“PIHRL”).  Those documents were then reviewed by PIHRL and sent to IU Counsel on the IUPUI campus who reviewed and sent them to lawyers in Bloomington.  The lawyers in Bloomington reviewed the documents and sent them to the Indiana University Treasurer.  The Treasurer has the authority to execute the documents.  Once executed they were sent back to Bloomington Lawyers, the IUPUI lawyers, PIHRL, back to me and finally to the Pentagon.  I received the documents back from PIHRL on January 4th, one day before the submission deadline given to me by the Pentagon. A few more email exchanges followed and I was able to submit the documents to the Pentagon before the deadline.  I’m sure this all seems more dramatic to me than to the reader (hopefully readers), but given my excitement to attend the hearings, I think it is understandable.

Conclusion

Although the hearings were cancelled the day I was set to begin travel, this has been a learning experience and I hope to receive another opportunity to observe and report in the future.

Travel to Ft. Meade for Hearings on Alleged 9/11 Architect

Main Gate of Ft. Meade, where I am scheduled to attend hearings this coming week.

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.

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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

Hadi’s Guantanamo hearings delayed two days

We are 6 NGO Observers on this trip to Guantanamo Bay, along with our Military Commission escort. Next time we wont stand in the shade for our photos!)

We are 6 NGO Observers on this trip to Guantanamo Bay, along with our Military Commission escort. Next time we wont stand in the shade for our photos!)

The Hadi al Iraqi Guantanamo Bay hearings begin tomorrow (Wednesday, 22 July), two days late due to an issue that apparently arose on Sunday the 19th, our first day in Cuba.

I came to Cuba to observe these war crimes hearings, and though the hearings were postponed, I and the other Observers had a very full two days.

On Monday I went for a 4:00 a.m. run with a fellow Observer. We ran early to avoid the daylight heat and humidity. As required, we carried our base identification card and wore reflective gear.

We then met with the other Observers and our escorts for breakfast at the base dining hall. This gave us a chance to get to know each other and learn about the different non-governmental organizations we represent. At the dining hall we saw members from every branch of the U.S. armed forces. As for the food, well, it was pretty decent.

I'm sharing this tent with the two other male Observers. the 4 female Observers are sharing their own tent.

I’m sharing this tent with the two other male Observers. the 4 female Observers are sharing their own tent.

Who are the Guantanamo Observers this week?

I am representing the Military Commission Observation Project of the Indiana University IU McKinney School of Law (MCOP), founded by Professor George Edwards. Five other NGO’s sent representatives to attend this round of Hadi hearings. NGOs generally are tasked with attending, observing, analyzing, critiqueing and reporting on the military commission proceedings. Our Indiana project, which is also known a the “Gitmo Observer”, is specifically looking at the rights and interests of the full range of Guantanamo Bay military commission stakeholders, including, for example, the defendants, the prosecution, the victims and their families, the witnesses, the media, and the military personnel who guard the prisoners and run the detention facilities.

My 3rd of the men's tent.

My third of the men’s tent.

Our group of Observers consists of two attorneys, four law school students from four different law schools, and one representative from an NGO that focuses on human rights. The diverse backgrounds of this group will help provide different points of view from which to observe the proceedings and, thus, hopefully lead to a fuller review of the hearings.

Internet Access

After breakfast, I met with the other Observers for an informal discussion. We met outside near a particular restaurant so that several of the Observers could use the free wifi available at that particular location.

Internet access is quite an issue at the base. Internet access through a wired ethernet connection costs $150/week. This cost is prohibitive to some NGO’s and to some Observers. The Observers who cannot afford to pay for the wired connection must rely upon free wifi. This service, which is only available at select locations is both slow and unreliable due. This, in turn, runs the risk of limiting timely reporting from Observers.

The NGO Library

I then went to the NGO library to learn what resources were present to aid us in our observations. A number of NGO’s, including the Military Commission Observation Project through Indiana’s IU McKinney School of Law, stocked the library with helpful written material.

The MCOP most notably included two resources (1) a briefing book that includes the Manual for Military Commissions and (2) a copy of the 500 page Executive Summary from the Senate Select Committee on Intelligence’s Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program.

To understand the rights of stakeholders, it is important to understand the legal framework in which stakeholders exercise their rights. As such, the Manual for Military Commissions is a great resource as it sets forth how military commissions, such as the one handling the al-Hadi al-Iraqi case operate, both in and outside of court hearings. This includes, for example, discovery issues, trial rules, and sentencing procedures.

The second document will be helpful as the Hadi defense team has made numerous references to this study through many of its pleadings. This document is important as it is referenced by the defense in many of its pleadings.

Big Day Tomorrow

It is hard to believe that the hearings begin tomorrow. I’m excited about this opportunity to watch the hearings, analyze the proceedings, and then report to you.

I and other Observers have been using the Guantanamo Bay Fair Trial Manual, that provides insights as to what we might wish to look for as we assess whether stakeholders are receiving a fair hearing.

Greg Loyd – Guantanamo Bay, Cuba

My arrival at Guantanamo Bay, Cuba

Greg Loyd - At Camp Justice - 21 July 2015

I’m standing at the front of Camp Justice, my home for the next two weeks at Guantanamo Bay. I am facing the makeshift complex that houses the courtroom where hearing are scheduled to begin tomorrow, Monday, 20 July 2015.

I arrived at Guantanamo Bay Naval Station yesterday, on a sunny Sunday July afternoon. I am scheduled to be here from tomorrow (the 20th) through 31 July to monitor hearings in the case against alleged al Qaeda official Hadi al-Iraqi.

I flew from Andrews Air Force Base – along with the judge, prosecution and defense attorneys, media, and other NGO Observers – on an air force flight. Check-in was similar to check-in for a regular commercial flight. I presented my ID card at the Andrews ticketing counter, confirmed my destination, and the attendant gave me a boarding pass.

Greg Loyd - Sunrise at Andrews Air Force Base - 19 July 2015

Sunrise at Andrews Air Force Base, Sunday, 19 July 2015

 Waiting to Board

In the Andrews terminal, I had the opportunity to meet fellow NGO Observers and other people involved in the military commission. Many people traveling with us appeared to have formed strong bonds, as they quite happily greeted one another with wide smiles, a change in the tone of their voice, and a strong handshake or hug.

When did friends and Colleagues last see each other?

Watching the men and women at Andrews greet each other so warmly made a lot of sense to me, since the different groups of people may not have seen each other in a while. I’m not sure when the last hearings were in the Hadi case, but there have been no military commission hearings at all for many months.

Unlike many courts, the Military Commission doesn’t conduct court hearings each and every day. Instead, the court only conducts hearings on the days or weeks designated by the judge in light of pending motions, the status of the parties’ trial preparations, and other considerations. Weeks and months can go by with no hearings in the Hadi case, or in any of the other few pending Guantanamo Bay cases.

The judge and others involved with the hearings (excluding the defendants) do not stay at Guantanamo Bay when there are no hearings. Instead, everybody (again, except the defendants) travel to the base only for the scheduled hearings.

Hearings have indeed been scheduled in multiple cases over the last several months, but most of those hearings were cancelled.

We are 6 NGO Observers on this trip to Guantanamo Bay, along with our Military Commission escort. Next time we wont stand in the shade for our photos!)

We are 6 NGO Observers on this trip to Guantanamo Bay, along with our Military Commission escort. Next time we wont stand in the shade for our photos!)

NGO Impact: A Cost – Benefit Analysis

The repeat cancellations present a potential problem for NGO’s, among other stakeholders. Such cancellations (particularly those that occur shortly before a hearing date) create a degree of uncertainty for NGO’s representatives regarding the cost of planning on attending hearings. This cost notably includes time reviewing relevant motions, statutes, and human rights treaties, and that time could instead be invested in other valuable projects. If hearings are rescheduled too often, there is a risk that NGO’s will elect to invest their time in other worthy goals that may have a more certain application, rather than preparing for a hearing that may be cancelled. Should this occur, then fewer NGO’s may send Observers, which could negatively impact the quantity and quality of Observer reporting.

A personal example

On three prior occasions, I was selected to travel to observe the proceedings as a representative of the Military Commission Observation Project of Indiana University School of Law.

Each previous time the hearings were cancelled. Each time I prepared for the hearing, purchased flight tickets, paid for my ground transportation, and coordinated work schedules and assignments with co-workers. While I am fortunate to work in a very team oriented office, such cancellations (and subsequent rescheduling) put pressure on my co-workers.

As a trial attorney, I understand the need to continue court hearings, sometimes at the last minute. I also understand that the complexity of these issues often necessitates a fair amount of work by all parties to properly prepare for the hearings. Nonetheless, the potential danger to NGO’s remains as they work to balance their limited time, manpower, and other resources.

While these cancellations can be frustrating, I hope that Observers can use this time beneficially to review and re-review the law, commentary, and analysis. Perhaps this additional analysis under multiple deadlines will lead to creative ideas to contribute to the discussion.

Breaking News

Just moments ago, my fellow NGO Obsevers met for Sunday dinner to discuss the hearings set to begin tomorrow morning. While at the restaurant, we were notified that the hearings scheduled for Monday, July 20 and Tuesday, July 21 were postponed until Wednesday.

That’s not a big problem for us, as our Guantanamo Bay tents are only a few feet away from the courtroom, and it is not a logistical nightmare to have Monday and Tuesday without hearings. But, Indiana’s Military Commission Observation Project is sending 4 people to Ft. Meade, Maryland, to monitor these same Guantanamo hearings via a secure simultaneous video-feed. It must be more challenging for the Ft. Meade Observers to change their hearings schedule to get to Ft. Meade.

Its time now to re-read some material I brought along.

Greg Loyd – Guantanamo Bay, Cuba

 

USS Cole Case Day 1 Wrap Up: Guantanamo Bay

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

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

Touch Down at GTMO

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

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

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

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

Courtroom Tour

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

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

Court Session Begins – Victims & Family Join

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

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

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

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

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

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

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

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

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

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

More Motions

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

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

Meeting with Chief Prosecutor General Martins

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

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

Meeting Carol Rosenberg

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

Tuesday’s Court Schedule

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

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

Going to Guantanamo – Overnight at Andrews Air Force Base

Air Force H20

Outside Andrew Air Force Base from my hotel.

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

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

Flying to DC

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

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

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

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

Preparing for my mission to Guantanamo Bay, Cuba

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

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

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

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

March 2 – 6 Hearings

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

Retired Major General Vaughn Ary

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

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

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

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

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

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

I look forward to meeting the other NGO observers.

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

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

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

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