Fair Trial Manual

Guantanamo NGO Observers from IU McKinney Law School Featured in Indiana Lawyer

Military tribunals for some accused of terrorist attacks on the United States are held at Camp Justice at Guantanamo Bay. (Photo by Catherine Lemmer, IU McKinney School of Law)

Military tribunals for some accused of terrorist attacks on the United States are held at Camp Justice at Guantanamo Bay. (Photo by Catherine Lemmer, IU McKinney School of Law)

The Indiana Lawyer published the following article by Marilyn Odendahl on 25 February 2015. Text and photos are in the original article.

IU McKinney Gitmo Observers Illuminate Murky Proceedings in Gitmo Trials

by. Marilyn Odendahl (25 February 2015)

      The U.S. Military Commission Observation Project overseen by Indiana University Robert H. McKinney School of Law is continuing to send individuals to watch and report on the accused terrorists’ trials being held at Guantanamo Bay. Blog posts and articles from the observers chronicle the glacial pace of the proceedings, the unexpected courtroom twists and the nagging constitutional questions.

Professor George Edwards

Professor George Edwards

The project regularly sends faculty, students and alumni to either Guantanamo Bay or Fort Meade in Maryland to observe the tribunals. Professor George Edwards, founder and director of the project, explained the work of the observers is not to address the political issues or comment on the substance of the military commissions.

“We’re interested in seeking to assess whether the stakeholders are receiving the rights and interests that are afforded to them,” Edwards said. “(Those rights) include the right to a fair hearing, the right to an independent tribunal, the right to trial without undue delay.”

He pointed out the observers also are looking at the stakes that the victims of the terrorists attacks and their families have in the proceedings. What about their rights to have access to the trials, to make statements, to confront and to have closure?

Professor Catherine Lemmer

Professor Catherine Lemmer

IU McKinney librarian Catherine Lemmer, who Edwards described as instrumental in helping to build the observation program, heard some victims’ voices when she traveled to Guantanamo Bay for the hearings of the alleged co-conspirators of the Sept. 11, 2001, attacks.

One man said he was attending the proceedings to remind the judge and attorneys that planes had flown into the twin towers of the World Trade Center and the Pentagon. A mother of a fallen firefighter said she was struggling to hang on to her opposition to the death penalty, but she believed the trials had to be fair because the United States would be judged by how it handles the detainees.

The project drew praise from panelists who participated in a recent forum at the law school examining the tribunals. Hosted by the Indiana International & Comparative Law Review, the symposium brought together legal scholars from IU McKinney and around the country to discuss whether the end is coming for Guantanamo Bay or if the practice of international criminal law has reached a turning point.

An IU McKinney symposium examined trials at Guantanamo Bay. Panelists included (from left): Richard Kammen, Kammen & Moudy; Shahram Dana, The John Marshall Law School; George Edwards, IU McKinney; and Paul Babcock, editor-in-chief of the Indiana International & Comparative Law Review. Chris Jenks of Southern Methodist University Dedman School of Law participated via video link. (Photo by Dave Jaynes, courtesy of IU McKinney Law)

An IU McKinney symposium examined trials at Guantanamo Bay. Panelists included (from left): Richard Kammen, Kammen & Moudy; Shahram Dana, The John Marshall Law School; George Edwards, IU McKinney; and Paul Babcock, editor-in-chief of the Indiana International & Comparative Law Review. Chris Jenks of Southern Methodist University Dedman School of Law participated via video link. (Photo by Dave Jaynes, courtesy of IU McKinney Law)

Two participants – Shahram Dana, associate professor at The John Marshall Law School and Chris Jenks, assistant professor at Southern Methodist University Dedman School of Law – on the second panel discussion both noted IU McKinney’s effort in documenting the proceedings at Guantanamo Bay is shining a light on America’s response to terrorism and will be an invaluable resource for history.

Lemmer advocates for the proceedings to be shown on C-SPAN. The American public should see for themselves, she said, so they form their own opinions. By seeing what is happening in that courtroom, she said it is easy to realize how things could go wrong.

“The role of the attorneys, our role (as citizens) is to hold fast to the Constitution when really bad things happen and everybody wants to step over it,” Lemmer said. “Ultimately, the price we pay for not doing it right is incredible. This is our Constitution and it is getting overwhelmed, which should not happen.”

Lemmer took her first trip to Guantanamo Bay in December 2014. However, the proceedings were derailed by the ongoing revelations that the Federal Bureau of Investigation may have infiltrated the defense teams. The FBI is accused of listening to defense attorneys’ meetings with their clients and reviewing their correspondence as well as attempting to turn legal team members into informants.

When she returned in early February 2015, the FBI conflict-of-interest issue was still being argued. Then unexpectedly, Ramzi Bin al-Shibh, one of the defendants in the courtroom, said he recognized his interpreter as someone he encountered during the period he was held at one of the Central Intelligence Agency’s secret prisons. Another defendant told his attorney he also remembered the interpreter from the black site.

“It became very surreal,” she said.

To Indianapolis defense attorney Richard Kammen, the confusion and conundrums that swirl around Guantanamo Bay could be resolved by moving the proceedings to federal court. Kammen, lead counsel for USS Cole bombing suspect Abd al-Rahmin al-Nashiri, pointed to the hearings of accused Boston Marathon bomber Dzhokhar Tsarnaev as an example that U.S. courts can handle high-profile terrorism cases.

“There’re so many more moving parts down there than there would be in federal court, so things just get more messed up,” he said.

Currently, Kammen and his defense team are tangling with the federal government to release the details of the treatment of al-Nashiri while he was kept in a black site. The release of the CIA Torture Report publicly confirmed that the defendant had been physically, psychologically and sexually tortured, but Kammen said the defense still needs details of what was done and when.

Professor Tom Wilson

Professor Tom Wilson

IU McKinney professor Lloyd “Tom” Wilson is scheduled to observe the al-Nashiri proceedings during his first trip to Guantanamo Bay. The task of watching and relaying what is happening will be difficult, he said, because he will be seeing just a snapshot of a long, complex and secretive process.

Wilson was careful in his preparation for the trip, not wanting to form any preconceived ideas or prejudices before he arrived in the courtroom. He is going out of a sense of civic duty and to understand the situation better than he does now.

Still, the proceedings are not easy to comprehend and continue to spark debate many miles away from the detention camp.

As part of his remarks during the IU McKinney symposium, Kammen described Guantanamo Bay as a “law-free zone.”

Co-panelist Jenks countered that characterization, arguing traditional rules governing the treatment of prisoners of war have been upended by terrorism. In previous conflicts, nation states battled each other but now the United States is fighting against groups that are unconnected with any organized government or country. Even so, he continued, the detainees at Guantanamo Bay have a right to counsel and are being given a trial.

Kammen responded that even if his client is acquitted, he will not be released.

“That,” Kammen said, “is a law-free zone.”

_______

The original Indiana Lawyer article can be found here:  http://www.theindianalawyer.com/iu-mckinney-gitmo-observers-illuminate-murky-proceedings-in-gitmo-trials/PARAMS/article/36436

My Morning at Guantanamo Bay Hearings at Ft. Meade

In front of the Post Theater at Ft. Meade.

In front of the Post Theater at Ft. Meade.

I am up early this Monday morning for my first visit this year back to Ft. Meade, Maryland to monitor Guantanamo Bay, Cuba hearings in the U.S. Military Commissions case against al Nashiri. He is the alleged mastermind of the U.S.S. Cole suicide bombing in 2000 that killed 17 U.S. sailors.

What, Guantanamo Bay proceedings in Maryland?

Yes. The Pentagon runs a secure videolink direct from the Guantanamo Bay courtroom to select viewing sites in the U.S. where press, NGO Observers, victims and their families, and others may view the proceedings. The only site in the U.S. at which NGO Observers and members of the public may see what’s happening in the courtroom is at Ft. Meade, Maryland, about 35 miles outside of Washington, DC.

It’s kind of like watching a Court TV show, except that the viewing venue at Ft. Meade is an actual live theater, where they screen first run movies on a huge commercial theater-sized screen, and host live plays, lectures and other activities on a stage. Its concession stand sells buttered popcorn, Milk Duds and Skittles, and fountain drinks. This week’s feature film is Selma, screened in the evenings after the Guantanamo courtroom goes dark.

Courtroom sketch of al Nashiri by artist Janet Hamlin. Today in court he was wearing a similar casual white short sleeve shirt. His hair appeared to be a little longer than in this sketch, but it appeared equally as kempt.

Sketch of al Nashiri from a previous court session. Today in court he wore a similar casual white short sleeve shirt. His hair appeared to be a little longer than in this sketch, but it appeared equally as kempt. (Sketch by Janet Hamlin)

Al Nashiri’s February 2015 hearings

The al Nashiri case is in the pre-trial hearing stage. Every month or two they schedule two weeks of court time in which defense and prosecution lawyers argue about logistical, substantive, or technical issues to be resolved before the actual trial begins. For the February 2015 hearings, the lawyers are arguing whether the prosecution must provide the defendant certain information, whether al Nashiri will face the death penalty, and the relevance of the U.S. Senate’s 2014 Torture Report.

But before they reach those issues, they are arguing over whether certain Pentagon officials are exercising “unlawful influence” over the al Nashiri judge, who like other Guantanamo Bay judges was ordered permanently to relocate to Guantanamo Bay and surrender all non-Guantanamo judicial responsibilities, as these changes purportedly would help speed up the trials. U.S. law clearly provides that judges are to be in control over their trials, including the speed at which their trial proceed, and outside U.S. government officials are not meant to intervene.

I won’t know what will happen in today’s hearings until 1:00 p.m., since the morning session, which was scheduled to begin at 9:00, is closed to NGO Observers. I have over four hours of out-of-court time to catch up on reading al Nashiri court documents, blog writing, and working on the Guantanamo Bay Fair Trial Manual.

Driving to Ft. Meade

Getting to Ft. Meade is not easy.

I woke up this morning before 6:00, and took a taxi from my downtown DC hotel to Washington National Airport, where I rented a car to drive to Ft. Meade. The taxi ride to the airport was historically scenic, passing the Watergate, the Washington Monument, and Arlington Cemetery.

Driving from the airport to Ft. Meade was slow, not because of rush hour, but because much of the 35 miles to the base is on narrow, two lane roads with many stop lights. I will try another route back to DC this afternoon. Perhaps it was a GPS problem?  It might be an advantage driving into DC when most of the traffic is driving out at the end of the day. All said, it was a pretty uneventful trip, which took about an hour from airport to the Ft. Meade Visitor’s Entrance.

Photo courtesy of CNN

Photo courtesy of CNN

Arriving at Ft. Meade

I remembered from last time I was here where the Ft. Meade Visitor’s Entrance is, off of Reese Road, and pulled up to the base security checkpoint. But I’d forgotten about the separate vehicle inspection line, just to the right before base security. So I had to make a quick U-turn, adding 30 seconds to my journey. The vehicle inspector asked me a few questions about my Indiana drivers license, my rental car  contract, and whether I was a member of the press. He was easily convinced that I was a credentialed NGO Observer, and very generously gave me a Ft. Meade color map, on which he traced lines to the Post Theater, where I am now.

I arrived here just before 8:30 a.m., took a couple of selfies in front of the Post Theater sign, and then bumped into Bev, who is a Department of Defense contractor who I believe supervises this viewing site. She announced to me that court was commencing at 9:00 a.m., but that the morning session would be closed to NGO Observers. They close the proceedings when they are discussing classified information that NGO Observers, victims and their families, press, and others are not permitted to hear. So, none of us can be in the courtroom or on a video-link, whether we are in Guantanamo Bay or Ft. Meade.

I wondered why those of us at Ft. Meade were not warned in advance that the unclassified, open proceedings would not commence until early afternoon. At the very least, none of us would have had to wake at the crack of dawn, only to hurry up and wait all day. (As it turns out, two people in the Observation room received notification last night at 10:00 that the open session would start at 1:00 p.m., and they arrived at the Post Theater at 12:45, well-rested after a good night’s sleep and a 50 mile drive.)

So, what do I do for the next four hours from 9:00 – 1:00 waiting for the open hearing? I could drive back to Washington, and come back this afternoon. But that would be a wasted time.

So, of course, I immediately thought that this would be a great time to catch up on Gitmo Observer blog writing, to review court documents in the al Nashiri case, and to brush up on the Guantanamo Bay Fair Trial Manual.

Drug sniffing dog Axa and her handler

Drug sniffing dog Axa and her handler at Post Theater today, after finding all the drugs planted by the MPs.

Canine Patrol

A little while after I entered the Post Theater, a group of Military Police (MP) Canine Patrol staff came in, asking whether the Guantanamo Bay hearings were on. I told them that the hearings were closed until 1:00 p.m., and that there would be no live broadcast until then. In fact the screen was showing the morning news, with stories about al Shabaab and threats to U.S. shopping malls and the weather.

The MPs said that they wanted to do some training with some of their dogs.

The next hour or so was extremely interesting, watching 5 different dogs successfully sniff out planted explosives and illegal drugs that the MPs planted in different parts of the theater.

The first dog, a black lab, was an explosives expert. She found three different satchels of explosive powder and other incendiary material, hidden inside a trash can, underneath a movie theater seat, and high above the arch of a doorway. All in record time. After each find the shiny, fine-coated lab received an award, a tug and tussle with a “kong”, which is a plastic toy attached to a colorful twisted heavy rope.

The next two explosive expert dogs performed equally as well, quickly finding all the planted explosives and receiving well-deserved treats.

Then came Axa, the first of two drug-sniffing dogs. She was a small dog, with a rugged black and grey fluffy coat. The

Fram - A drug sniffing dog and his handler.

Fram – A drug sniffing dog and his handler this morning, after the 9-year old canine gracefully located all of the drugs planted by the MPs.

MPs had hidden the drugs on the opposite side of the theatre from the explosives.  Axa’s handler gently waved her open palm towards the trash can next to the door leading from the lobby into the theater, and Axa did not react.  The handler repeated the hand gesture, called a presentation (the hand wave gesture), this time towards the door frame. Axa stood on her hind legs and leaned against the door frame, circled around beneath the frame, stood up again, and excitedly sat on her hind legs. Axa found the 5 grams of marijuana hidden in the frame above the door. She was rewarded with a yelp by the handler who tossed Axa a kong for finding the pot.

Axa then found cocaine in a trash can in front of the theater, and ecstasy underneath a seat in about row 8. Axa is only 2 years of age and has been working as a canine sniff dog only since October 2014. Well done.

Finally, Fram, the senior sniffer, was brought into the theater.

Fram was 9 years of age, lived his first 7 years in Germany, and arrived at Ft. Meade only 2 years ago. He was seasoned, he knew the drill, and he was very good at what he does.

Today Fram earned his kongs, and hugs from his handler who said “I’m going to adopt Fram when he retires”. Several other handlers chimed in “No you’re not! I’m going to adopt him”! So, we’ll see who ends of with a handsome, smart and talented dog who even at the ripe old age of nine did not look like he was anywhere near retirement.

Dog Handlers are gone — What Next?

The dog handlers have left, and I’m back to full concentration on my work (despite interruptions by a person stopping in to ask for directions to a base office, a guy coming in to turn on the bathrooms’ water which had been turned off over the weekend to prevent frozen pipes during the snow storm, and a guy changing lightbulbs above the concession stand.

My next post will have more substance and will report on my al Nashiri motion-review and my Guantanamo Bay Fair Trial Manual work.

(George Edwards, Ft. Meade, 23 February 2015)

Thoughts on My 23-27 March Mission to Guantanamo Bay

Abd al Hadi al-Iraqi

Abd al Hadi al-Iraqi

During the last full week of March 2015, I will travel to Guantanamo Bay (GTMO), Cuba as a member of the Military Commission Observation Project (MCOP) at the Indiana University Robert H. McKinney School of Law. It’s an honor to have been selected. I will observe military commission proceedings for Abd al Hadi-al Iraqi, who arrived from CIA custody to GTMO in 2007.

 

In 2013, the United States government charged him with denying quarter, attacking protected property, using treachery or perfidy, and attempted use of treachery or perfidy in a series of attacks in Afghanistan and Pakistan between about 2003 and 2004, and conspiracy to commit law of war offenses.

General Preparation for the Project and my Guantanamo Bay travel

Whirlwind is a term I have seen associated with the process of becoming a fair trial observer as a part of the Military Commission Observation Project (MCOP). I didn’t really have any previously determined thoughts on GTMO that were fully fleshed out by thorough law school level research. Prior to conducting research, I think my level of knowledge was comparable to that of the average American. Though, maybe slightly than more than average, given that I have known several members of the military who served there.

Nevertheless, I have begun the process of researching and learning as much as possible about the project itself, the circumstances surrounding the operation of GTMO and military commissions, and the specific case I will observe. Absent a background in international law, the Guantanamo Fair Trial Manual has been a great resource in becoming familiar with the various sources of law that are implicated in the military commission system.

In addition, I’ve had to explore my thoughts and feelings about what the overarching principles of justice really mean as applied to GTMO. As is with any person, my life experiences have shaped my perspectives on the ethical components of domestic and global issues.

My Indiana McKinney Law School Career

Despite my penchant for world travel, becoming a member of MCOP is admittedly my first law school experience dealing with any area of international law. During my second year of law school I worked as a part-time law clerk for the Marion County Public Defender Agency. Following that, I volunteered with the Neighborhood Christian Legal Clinic’s Expungement Help Desk, where I informed members of the community about Indiana’s expungement law. In July 2014, I began working full-time for the Indiana Bureau of Motor Vehicles, and next month I will begin as a part-time law clerk for the Indiana State Personnel Department. This semester I have been fortunate enough to extern for Justice Steven H. David of the Indiana Supreme Court. From July 2007 to August 2008, Justice David (at the time Colonel David) was the Chief Defense Counsel for the Military Commissions at Guantanamo Bay.

My Military Service

As a member of the Army National Guard for over 10 years, I deployed once in 2011 to Kosovo as a part of Kosovo Force (KFOR) 14. KFOR has been a part of the larger multinational presence in Kosovo since 1999.

Myself in the Shar Mountains National Park in southern Kosovo in 2011.

In addition, I have personally participated in the military funeral honors ceremonies for 323 veterans, a handful of which have been Iraq and Afghanistan war casualties. In no way does this fuel personal anger or hatred towards the detainees held in GTMO. Those servicemen were honored for their sacrifices for democracy that implores fairness in the service of justice. On the contrary, it is all the more reason for me to ensure I am doing everything within my power to help the MCOP fulfill its missions (attend, observe, analyze, critique, and report).

As stated in the Guantanamo Bay Fair Trial Manual, “NGO Observers are the eyes and ears of the outside world as to what happens at Guantanamo Bay. NGO Observers have a unique responsibility to share their experiences, insights and conclusions with the outside world. NGOs should not bow to pressure. What happens at Guantanamo Bay should not stay at Guantanamo Bay.”

As a part of that mission, I have been tasked with expanding the portion of the Guantanamo Fair Trial Manual covering the rights and interests of the men and women in Joint Task Force Guantanamo (JFT-GTMO).

First Up: Motions on Severance & Conflict-of-Interest

gitmo picI am en route via Chicago and Washington D.C. to Guantanamo Bay, Cuba for the first week of the 9/11 hearings.  The hearings are scheduled to start at 9:00 am on Monday, 9 February 2015. Judge Pohl has ordered that all five defendants must be present in court.

The first issue to be addressed during this session is reconsideration of Judge Pohl’s order of August 2014 (AE312) to sever Ramzi bin al Shibh’s case from the other four 9/11 defendants. Mr. in al Shibh’s case was severed as a result of the prosecution’s request for a competency hearing for him as well as the conflict-of-interest matter arising from FBI investigation into his defense team. If this sounds familiar, it should. These same motions were scheduled for hearing but not heard when the December 2014 hearings were cancelled over the female guard issue.

The resolution of the potential conflict-of-interest matter is a complex issue that has delayed the hearings for nearly a year. In 2014, the Military Commission concluded that there was no actual or potential conflict with respect to four of the five 9/11 defense teams. The Military Commission did conclude that there may be an actual or potential conflict with respect to the legal team representing Mr. bin al Shibh. In August, Judge Pohl ordered Independent Counsel for Mr. bin al Shibh to investigate and advise him. Lt Col Julie Pitvorek, USAF was assigned as Independent Counsel for Mr. bin al Shibh. LtCol Pitvorek will be present at the February hearings, as will Mr. Harrington and Lieutenant Commander (LCDR) Bogucki, Mr. bin al Shibh’s present counsel.

In April 2014 a Special Review Team consisting of Department of Justice prosecutors was appointed to investigate the FBI’s undisclosed interviews and investigations of certain members of the 9/11 defense teams. The creation of the Special Review Team was required because General Martins’ prosecution team can not investigate the defense teams. The Special Review Team functions as the prosecution with respect to the investigation of the defense teams and whether the FBI activity created a conflict-of-interest for the defense team.  The Special Review Team was in court at the preliminary hearings in June, August, and October on behalf of the prosecution. These prosecutors will be in court for the February hearings to represent the government for the three pleadings that will be heard by Judge Pohl related to these matters.  Should these matters be resolved, the parties will move on to the many other matters scheduled for argument in the following weeks.

The matters before the Military Commission are legally and factually complex. It makes it challenging for NGO Observers tasked with observing, analyzing, and reporting on whether the military commissions are open, transparent, and providing fair trials to the defendants.  It is important that we focus on our specific role in the process. The Guantanamo Bay Fair Trial Manual is a great tool to help us do so.

The matters scheduled on the docket include:

AE 312C Defense Response to Emergency Government Motion to Reconsider AE 302 Severance Order The order severing Mr. bin al Shibh is currently in abeyance (temporarily suspended). The judge may revoke the order, sever Mr. bin al Shibh, or continue to hold it in abeyance.)

AE 292RR Prosecution Special Review Team Motion for Reconsideration of AE 292QQ (Order) (Prosecution Special Review Team seeks to have Judge Pohl reconsider his decision that there may be a potential conflict within Mr. bin al Shibh’s defense counsel.)

AE 292VV Defense Motion to Compel Discovery Related to Interference with Defense Function by the United States.  (The defense asks Judge Pohl to compel the Prosecution’s Special Review Team to provide the evidence related to the FBI’s investigations of the defense teams. )

AE 292YY Defense Motion for Appropriate Relief-Disclosure by Military Judge Whether He has Acquired Information Relating to the Case from an Undisclosed Source and the Details of the Information (The defense asks Judge Pohl to disclose what information he has about the FBI investigation that has not been provided to the defense.)

AE152 Prosecution Motion for R.M.C. 909 Hearing (The prosecution asks the Commission to establish the competency of Ramzi bin al Shibh to stand trial.)

AE 254KK Prosecution Government Motion For an Expedited Litigation Schedule to Resolve AE 254Y (The prosecution requests oral argument relating to the issue of female guards in contact positions with defendants.)

AE 331 Military Commission Judge Trial Conduct Order (The military judge ordered the government to review the Protective Order regarding classified information and sealed pleadings in light of the release of the Torture Report.)

AE 008 Defense Motion to Dismiss for Defective Referral (The defense position is that the Convening Authority did not charge the defendants properly.)

AE 031 Defense Motion to Dismiss for Unlawful Influence (The defense position is that the President of the United States put pressure on the Convening Authority to bring the case against the defendants.)

AE 192 Defense Motion to Disqualify (The defense position is that the Legal Advisor to the Convening Authority unlawfully interfered with the professional judgment of the Chief Defense Counsel and Mr. al Hawsawi’s Learned  Counsel.)

AE 196 Defense Motion to Disqualify (The defense position is that the Chief of Operations for the Convening Authority unlawfully interfered with the professional judgment of the Chief Defense Counsel and Mr. al Hawsawi’s Learned Counsel.)

AE 254 Defense Emergency Defense Motion to Permit Attorney-Client Meetings (The defense position is that JTF-GTMO is interfering with attorney-client visits.)

AE 112 Defense Motion to Compel White House and DOJ policy on Rendition, Detention, and Interrogation Program (The defense seeks to compel discovery about the policies underlying the CIA rendition, detention, and interrogation program.)

AE 114 Defense Motion to Compel Information regarding Buildings in Which Defendants May Have Been Confined (The defense asks the prosecution to produce evidence about any facility where the defendants were held.)

AE 182 Defense Motion to Possess and Resume Use of a Microsoft-Enabled Laptop Computer (The defense asks that the defendants have access to standalone computers to work on their defenses.)

AE 183 Defense Motion for Telephonic Access for Effective Assistance of Counsel (The defense asks to be able to communicate by telephone with the defendants.)

AE 195 Defense Motion to Compel Production of Communications Between Government (The defense seeks information about government involvement with the movie Zero Dark and Filmmakers of Zero Dark Thirty.)

AE 206 Defense (Mohammed) Motion to Cease Daily Intrusive Searches of Living Quarters and Person (The defense wants the prison to use less intrusive means to search for physical contraband.)

AE 036E Prosecution Motion to Clarify Order AE036D (The prosecution asks the Judge to order that the prosecution has control over all witnesses, including remote testimony.)

AE 036G Defense Motion to Compel Discovery (The defense wants the Judge to compel discovery on government policy of producing witnesses.)

AE 036H Defense Motion to Compel Witnesses (The defense wants the Judge to compel witnesses on prosecution statements regarding costs of producing witnesses.)

AE 214 Defense Motion to Compel access to Government of Saudi Arabia. (The defense requests that the Military Commission compel the Secretary of Defense to facilitate communications between Mr. Hawsawi and Saudi Arabia.)

AE 119 Defense Motion to Dismiss and to Compel a Status Determination Pursuant to Article 5 of the Geneva Conventions (The defense asserts that there is a question as to the status of the defendants under Article 5 of the Geneva Conventions and charges should be dismissed.)

AE 164 Defense Motion to Stay all Review Under 10 U.S.C. § 949-4 and to Declare 10 U.S.C. §949p-4(c) and M.C.R.E. 505(f)(3) Unconstitutional and In Violation of UCMJ and Geneva Conventions (The defense argues that the Commission’s decision to permit trial counsel to substitute, summarize, withhold, or prevent access to classified information is unconstitutional.)

AE 018W Joint Defense Motion to Amend AE 018U Privileged Written Communications Order (The defense argues that interpretations of the provisions in the written communication order are restricting attorney-client communications and should be amended to protect the rights to effective assistance of counsel and to prepare and participate in own defense.)

AE 018BB Defense (WBA) Motion to Compel Paper Discovery in Accordance with Privileged Written Communications Order (The defense requests that the Commission order the government to provide a duplicate copy of all paper discovery materials releasable to Mr. bin ‘Attash.)

AE 018MM Defense Motion to Compel Reasonable Privilege Review Team Hours of Operation (The defense requests that the Commission order the Privilege Review Team (PRT) to maintain reasonable weekend hours at all times; or at a minimum, maintain weekend hours for processing materials immediately prior and to and following hearings, or when there are approved attorney-client visits.)

AE 161 Defense (AAA) Motion to Require the Government to Comply with MCRE 506 Regarding redaction of Unclassified Discovery (The defense argues the Commission should order the prosecution to produce the complete, unredacted copies of certain unclassified discovery documents under Military Commissions Rule of  Evidence 506.)

AE 190 Defense (AAA) Motion to Compel Production of Information Relating to Statements Made by Mr. al Baluchi or Potential Witnesses at a Detention Facility Classified Motion AE 191 Defense (AAA) Motion to Compel Production of Information  Classified Motion AE 194 Defense (AAA) Motion to Compel Discovery of Mr. al Baluchi’s Statements (The defense requests that the military judge compel production of all records of all statements made by Mr. al Baluchi in the government’s possession

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay February 9-13, 2015)

Three Indiana McKinney Law Professors Travel to Guantanamo Bay, Cuba

Professor Lemmer to return to Guantanamo Bay to monitor the 9/11 case against Khalid Shaik Mohammad and 4 co-defendants

IU McKinney Professor Lemmer to return to Guantanamo Bay to monitor the 9/11 case against Khalid Shaik Mohammad and 4 co-defendants

Indiana University McKinney School of Law will send three law professors to Guantanamo Bay, Cuba to monitor U.S. Military Commission hearings in February 2015. They represent the law school’s Military Commission Observation Project, also known as the Gitmo Observer, that was selected by the Pentagon to observe, analyze and report on war crimes trials at the Guantanamo Bay Naval Station.

Professors Edwards & Lemmer – The 9/11 case

Professors George Edwards and Professor Lemmer will monitor pre-trial hearings in the case against five alleged masterminds of the 9/11 airplane attacks on the World Trade Center and the Pentagon. The lead 9/11 case defendant is Khalid Shaik Mohammad (KSM).

Professor George Edwards on a US Military C-17 flight from Andrews Air Force Base to Guantanamo Bay, Cuba (June 2014)

Professor George Edwards on a US Military C-17 flight from Andrews Air Force Base to Guantanamo Bay, Cuba (June 2014)

Professors Edwards, who is founding director of Gitmo Observer, said “The IU McKinney School of Law is fortunate that we can help promote transparency at the Guantanamo Bay war crimes trials, and that we can observe, analyze and form conclusions about whether Guantanamo Bay stakeholders are being afforded all rights to which they are entitled. In the Guantanamo Bay Fair Trial Manual we are publishing, we examine rights of the defendants, as well as rights of victims and their families, rights of the prosecution, rights of witnesses, rights of the U.S. military personnel who provide Guantanamo Bay security, and rights and interests of all other stakeholders”.

 

Professor Edwards is scheduled to return to Guantanamo Bay from 14 – 21 February 2015. Professor Edwards’ first visit to Guantanamo Bay was in 2007, when he was an expert witness in the case against Australian David Hicks, who at Guantanamo Bay became the first person since World War II to be convicted by a U.S. Military Commission.

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

Professor Wilson — The USS Cole / al Nashiri case

Professor Wilson is scheduled for Guantanamo Bay travel to monitor the USS al Nashiri case.

Professor Wilson is scheduled for Guantanamo Bay travel to monitor the USS al Nashiri case.

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

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

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

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

Dean Andy Klein - in front of building

In 2014, Dean Andy Klein was scheduled to travel to Ft. Meade, Maryland to observe Guantanamo Bay courtroom proceedings simultaneously video-cast by secure link. The hearings were cancelled, and Dean Klein is expected to reschedule in the near future.

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

(Post by by George Edwards)

Guantanamo Bay – Arrival and Defense Counsel

Flight to Guantanamo

“What’s the movie on this flight?” One hardly expects that to be the first question one hears on a chartered Miami International Air flight bound for the Guantanamo Bay 9-11 hearings. One also doesn’t expect to engage in a humorous movie selection process with members of the defense teams, NGO observers, and a flight attendant – in the end, the “chick flick” was vetoed and “Dawn of the Planet of the Apes” went into the play slot.

G Bay 044

Tent 9A – My Home Sweet Home for the next few days.

The Saturday flight from Andrews Air Force Base and the ferry ride to the island were uneventful. I sat in the back of the plane with the media and other NGO observers.

Arrival

Upon arrival, the NGO observers were directed to our tents in Camp Justice, taken to get our base badges, and given a brief NGO orientation about the Guantanamo Naval Base.  What is easy to forget is that the Guantanamo Naval Base has been in existence and operating since 1898; it is only since 2002 that it has served as detention camp for alleged enemy combatants.

Defense Bar-B-Q — Meeting lawyers, press, and others. The week’s agenda.

On Saturday evening the NGO observers were invited to a BBQ by the defense team for Ammar al Baluchi.  Carol Rosenberg and members from the other defense teams attended as well.

James Connell, Learned Counsel for Mr. al Baluchi, gave a lengthy briefing on motions set to be heard Monday and Tuesday. In addition to the conflict of interest matters (see my earlier post), the issue of the use of female guards is occupying a fair amount of time. At issue is whether female guards should be able to physically touch the prisoners as they are being prepared for transfer from their cells. The prisoners object on religious grounds to being touched by the female guards. They have forgone meetings with their attorneys if female guards were part of the rotation that would move them from their cells to the meeting. (more…)

Andrews Air Force Base – Ready to Depart

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

My Boarding Pass for the Andrews to Guantanamo Bay flight.

Sunrise at Andrews Air Force Base

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

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

Coffee & Guantanamo Bay Fair Trial Manual Distribution

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

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

(Posted by Catherine Lemmer)

CIA Detention & Interrogation Report Released – Details Torture of GTMO Prisoners

Today the Senate released the Executive Summary of its report that details torture of Guantanamo Bay prisoners, many of whom were held in secret prisons spread around the globe and subjected to treatment deemed “harsh” and “brutal” and that rises to the level of torture.

The report is titled the “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program,” and resulted from a 5-year study conducted by the U.S. Senate’s Select Committee on Intelligence.

The 525-page Executive Summary, which is heavily redacted, can be found here: CIA Detention & Interrogation Senate Report – 9 December 2014

Minutes after the Executive Summary was released, defense counsel in the 9-11 case, that is pending at Guantanamo Bay, circulated an e-mail that stated “The government has excluded from the report the identities of the torturers, the locations of the torture, and many other facts no doubt contained in the remaining 6,125 pages of the report.”

Indiana Law Affiliate Traveling to GTMO this weekend

Ms. Catherine Lemmer, an international librarian at the Indiana University McKinney School of Law, is scheduled to travel to Guantanamo Bay, Cuba this weekend for hearings in the 9-11 case. Ms. Lemmer, who has been instrumental in the Guantanamo Bay Fair Trial Manual and in building the The Gitmo Observer website and blog, will be posting her impressions of the “Torture Report” soon.

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

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

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

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

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

After Arrival

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

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

 Hearings Commence Tomorrow, Monday, November 17

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

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

Departing Indianapolis for Guantanamo Hearings – Hattie Harman

IMG_1079

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

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

Visit to International Criminal Law Class

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

Making Connections – Theory to Practice

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

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

Headed to Gitmo – Chuck Dunlap

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

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

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

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

Chuck Dunlap's Plane - AAFB to GTMO

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

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

Indiana Lawyer Lectures Before Guantanamo Bay Mission

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

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

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

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

Guantanamo Bay Fair Trial Manual

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

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

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

IU McKinney Law Students Assist in Fair Trial Project

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

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

Ambassador, Congressman, Law Professors & Journalist Discuss Guantanamo Bay’s Future

From left Dean and former U.S. Ambassador to Poland Lee Feinstein, Miami Herald Senior Correspondent Carol Rosenberg, Professor Edwards of The Gitmo Observer, Special Assistant to the International Criminal Court Prosecutor Professor Leila Sadat, and former Congressman Lee Hamilton who was Vice Chair of the 9-11 Commission.

From left Dean & former U.S. Ambassador to Poland Lee Feinstein, Miami Herald Senior Correspondent Carol Rosenberg (@CarolRosenberg), Professor George Edwards of The Gitmo Observer (@GitmoObserver), Special Assistant to the International Criminal Court Prosecutor Professor Professor Leila Sadat, and former Congressman Lee Hamilton who was Vice Chair of the 9-11 Commission.

The Guantanamo Bay detention facilities and U.S. Military Commissions were intensely discussed at a panel hosted by the Indiana University School of Global and International Studies.

Panelists spoke about the rationale and feasibility for closing Guantanamo’s detention facilities, how the international community views Guantanamo and its trials, insights from a journalist who has covered Guantanamo Bay since the first detainees arrived in January 2002, and measuring whether all Guantanamo Bay stakeholders’ human rights are being afforded to them.

Former Indiana Congressman Lee Hamilton, who was Vice-Chair of the 9-11 Commission, discussed the US government rationale for the shutting down of Guantanamo Bay and the difficulties in effecting such closure, from a Washington perspective. He described political and logistical challenges to a rapid closure.

Ms. Carol Rosenberg, who is Senior Correspondent for The Miami Herald, was in Guantanamo Bay to witness the January 2002 arrival of the first group of approximately 20 detainees, who were housed in “Camp X-Ray” wearing iconic bright orange prison. Ms. Rosenberg spoke about the history of the detention facilities, and its past, current and future challenges. She further elaborated on her perspective as a journalist assigned to the Guantanamo Bay.

Professor Leila Sadat, of the Washington University School of Law, is Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow, Director of the Whitney R. Harris World Law Institute and the Special Adviser on Crimes Against Humanity to the ICC Prosecutor. She provided a perspective on how the international community, outside of the U.S., views Guantanamo Bay and its Military Commissions.

U.S. Ambassador to Poland (former) Lee Feinstein, who is Founding Dean of the School of Global and International Studies, provided perspective given his many years of diplomatic and international law public experience and research. Dean Feinstein moderated the panel.

Professor George Edwards is founder of The Gitmo Observer, which is also known as the Military Commission Observation Project (MCOP) of Indiana University McKinney School of Law. Professor Edwards spoke on “Assessing Human Rights Protections for All Guantanamo Bay Stakeholders, Not Just the Rights of the Defendants”.

Professor Edwards descried how he founded the Indiana University McKinney Law School’s Program in International Human Rights Law, and how the Pentagon’s Convening Authority selected that program to be granted non-governmental observer status to permit it to send representatives to Guantanamo Bay to monitor hearings in person, or to Ft. Meade to monitor via secure video feed. Professor Edwards created then created the Military Commission Observation Project, which is now known as The Gitmo Observer. He talked about The Gitmo Observer’s most recent project, the Guantanamo Bay Fair Trial Manual, which those who monitor the Guantanamo Bay proceedings and process use to determine whether a fair trial is being held.

The panel was held at the University Club, at the Indiana Memorial Union, with a reception that followed in the Faculty Room.

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