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Monitoring 9/11 Hearings at Guantanamo Bay & Ft Meade — Stakeholder Rights

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

9/11 lead defendant Khalid Shaik Mohammad (KSM), in the Guantanamo Bay courtroom. KSM was waterboarded 183 times in 2003.* (Sketch by Janet Hamlin)

I am scheduled to monitor Guantanamo Bay military commission proceedings in the case against five alleged masterminds of the 9/11 airplane attacks on the World Trade Center and the Pentagon. The lead 9/11 case defendant is Khalid Shaik Mohammad (KSM).

First, I will travel to Ft. Meade, Maryland, where Guantanamo Bay courtroom proceedings are simultaneously transmitted by secure video link. Then, I will travel to Guantanamo Bay, Cuba, where I will be in the courtroom itself, with the judges, defense, prosecutors, media, victims and their families, and the 5 defendants. These hearings, scheduled for 9 – 21 February 2014, will address pre-trial legal issues. The trials may not begin until 2016 or later.

Monitoring Guantanamo Bay trials

The Pentagon has said it wants military commissions to be open and transparent. They want Guantanamo Bay trials to be fair, and they want independent outsiders to monitor the proceedings and assess this fairness. This is consistent with the U.S. statutory requirement that these proceedings shall be publicly held, and that they operate in accordance with international and domestic law mandates for open and fair trials.

The Pentagon selected a handful of non-governmental organizations to send monitors to Guantanamo Bay. In 2014, the Pentagon granted NGO Observer status to the human rights program I had founded at Indiana University McKinney School of Law. I then founded our Military Commission Observation Project (MCOP), which has morphed into The Gitmo Observer.

Gitmo Observer missions include to attend, observer, analyze, critique and report on Guantanamo Bay proceedings. Numerous IU McKinney observers have traveled to Ft. Meade and Guantanamo Bay to monitor proceedings, and have published on their observations. Also we are publishing the Guantanamo Bay Fair Trial Manual, which examines rights and interests of all stakeholders of the proceedings. The Guantanamo defendants have rights and interests. But other stakeholders also have rights and interests. These stakeholders include the prosecution, victims and their families, witnesses, and the press. The Guantanamo Bay Fair Trial Manual identifies the binding international and domestic law that provides for these rights and interests, and guides stakeholders as to which rights and interests they are entitled, and discusses enforcement and remedies.

Issues February 9/11 hearing

All the issues docketed for the February 9/11 hearings deal with stakeholder rights, principally pre-trial and trial rights of the defendants. They also include U.S. government rights related to national security, rights of female Guantanamo Bay guards to freedom from employment discrimination based on sex, and rights of the international community regarding U.S. compliance with international law.

Listed below are some of the rights issues scheduled for debate this 2-week session, as listed here in the Amended Docket of 26 January 2015:

Right to trial without undue delay (“inordinate” delays of the proceedings)
Rights related to mental competency of a defendant to stand trial
The right to counsel (right to not have the FBI interfere with a defendant’s defense team)
Conflict of interest rights
U.S. national security rights and interests
Access to information (discovery, classified information rights, use of information from undisclosed sources)
Rights of female guards to perform same duties as male guards regarding, for example, shackling and escorting defendants (employment discrimination)
Right to free exercise of religion (male Muslim defendants being touched by female guards)
Right to counsel (defendants not meeting with lawyers because of female guards touching them)
Right to trial by an independent tribunal (with no unlawful interference or influence)
Right to non-interference with professional judgment of the defense lawyers (right to counsel)
Rights related to torture and access to information (Senate report on torture)
Right to conditions of pre-trial confinement (including privacy rights, intrusive searches)
Right to access to the outside world (defendants’ telephonic access to families)
Right to facilities to prepare a defense (including access to computers)
Right to access to witnesses
A defendant’s right to access representatives of his government
Rights under the Geneva Conventions
Rights under the U.S. Constitution

The 26 January 2015 docketing order can be found here.

IU McKinney Affiliates traveling to Guantanamo Bay in February 2015

Professor Catherine Lemmer, IU McKinney School of Law

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

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

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

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

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

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

*Khalid Shaik Mohammad’s waterboarding is widely reported, including in the Miami Herald, which cites Justice Department and CIA reports

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

Professor George Edwards (left) with Chuck Dunlap, and IU McKinney graduate who traveled to Guantanamo Bay and Ft. Meade, sitting behind Guantanamo Bay Fair Trial Manuals Mr. Dunlap delivered to Guantanamo Bay (Fall 2014)

(Gitmo Observer Post by George Edwards)

Preparing for Guantanamo Bay 9-11 Hearings

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

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

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

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

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

The hearings for 15 – 16 December 2014

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

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

Preparing for the 9-11 Guantanamo Bay Hearings

My work with the The Gitmo Observer

I have been involved with the U.S. Military Commission Observation Project (“MCOP”) (also known as The Gitmo Observer) since mid-spring 2014. In my position as a law librarian at the Indiana University Robert H. McKinney School of Law I have worked on developing and maintaining The GITMO Observer site and providing research support for the Guantanamo Bay Fair Trial Observation Manual. Thus I am honored and excited to have been selected to serve as an NGO observer at the upcoming military commission hearings on December 15 and 16 at Guantanamo Bay.

My work in South Africa

I begin assisting Professor George Edwards and the MCOP upon my return from South Africa in April 2014. I spent six months (September 2013 – April 2014) in Johannesburg as a Senior Fellow at the Legal Resources Centre of South Africa (LRC). The LRC is South Africa’s largest and oldest national public interest law organization. Established in 1979, the LRC lawyers challenged apartheid and played important roles in drafting the South African Constitution. In 1994, Nelson Mandela appointed LRC’s founder, Arthur Chaskalson, to serve as the first President of South Africa’s Constitutional Court. The LRC advances research and provides free legal services to the poor and vulnerable in the areas of land and housing rights, children’s rights and education, environmental justice, HIV/AIDS, health and social services, refugee matters, and women’s equality.

During my time with the LRC, I enjoyed many a brown bag lunch with George Bizos, an LRC lawyer. An internationally renowned South African human rights lawyer, George Bizos is credited with crafting the three words in Nelson Mandela’s statement during his 1964 treason trial which resulted in the imposition of life imprisonment rather than the death sentence. Upon learning that an American sat across the tea table from him the first time we met, George looked at me and said, “I have sympathy with his position but your President Obama has to shut down Guantanamo Bay.” The topic of Guantanamo Bay would come up often during the six months I spent at the LRC and my knowledge of what was happening and why at Guantanamo Bay would prove woeful in comparison to that of George Bizos. The MCOP provided a fortuitous opportunity to learn more about the military commission process at Guantanamo Bay upon my return to the States.

The 9-11 case / Khalid Shaik Mohammed case that I will monitor next week

I will be observing hearings with respect to the five 9-11 defendants: Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi.

Earlier this week Professor Edwards was able to confirm that the hearings will involve matters of guard gender, the FBI probe/conflict of counsel, and the hearing schedule for 2015.

My preparation for the hearings

Even though I have been involved with the MCOP project, I had and still have lots of preparation to do. I’ve reread parts of the Guantanamo Bay Fair Trial Observation Manual to better understand my obligations to observe and analyze the proceedings. I am also reading the many documents related to this matter that are hosted on the U.S. Office of Military Commissions website. This is a complex case with five defendants and five separate defense teams. As a result, I have also been reading biographical information on the Human Rights Watch and other sites to help me identify and keep separate each of the defendants. Later this week I am meeting with two other observers, Hattie Harmon and Chuck Dunlap, who have recently observed proceedings at Guantanamo Bay for advice and information.

Lecture by Gitmo Defense Counsel – Rick Kammen

I recently attended a lecture by Rick Kammen, the lead lawyer for al Nashiri in the USS Cole case. His presentation focused on the many systemic problems of the Guantanamo Bay military commissions. What was readily apparent from his presentation is that Americans as a whole don’t pay much attention to the activities of the military commissions. In addition to its critically important work to ensure fair and transparent trials for all the stakeholders, MCOP is equally important in that it offers opportunities for many of us to become involved and expand awareness in others.

(Posted by Catherine Lemmer)