I am preparing to depart for Guantanamo Bay on my final observer mission as a student at the Indiana University McKinney School. I will be traveling for the Hadi al Iraqi/Nashwan al Tamir hearings taking place on 17-18 April 2018. Although the hearings were initially scheduled to last the entire week, observers were informed that the 14-21 April hearing week has been shortened to 16-19 April 2018. Two travel days are normally allotted for in person missions to Guantanamo. The schedule change is not atypical as my last trip to Guantanamo was initially expected to last a few days longer than originally scheduled, and although we ended up returning on the originally scheduled date, we did not learn this until we were already in Guantanamo.
How I Got Involved
I learned of the Military Commission Observation Project at McKinney before I applied to the Law School and the Program did play a role in my decision to apply. During my first year I was determined to become involved in the program and I applied using the link on the Law School’s web site. Before I considered traveling to Guantanamo Bay I attempted to travel to Fort Meade, Maryland to view hearings via closed-circuit video stream on the military base. Unfortunately, the hearings were cancelled when I was first scheduled to travel to Ft. Meade, so I tried again. Poetically, the first set of hearings that I was able to view at Ft. Meade were the Hadi al Iraqi/Nashwan al Tamir hearings, the same case that I am scheduled to travel to Guantanamo for next month on my last mission. When I traveled to Ft. Meade, I met Professor Edwards and a few other students on the base and Professor Edwards explained what was going on during short court recesses. The military commission is different from civilian courts in the United States. I learned about concepts such as: the convening authority, sensitive compartmentalized information facilities (SCIF), the prisoner/detainee distinction, unusual chain of custody rules, accusations of violations of attorney client privilege, and many more. I cannot begin to account for the volume of knowledge that I acquired through my travels to Ft. Meade, Guantanamo Bay, and attending law school events. When I was eventually allowed to travel to Guantanamo Bay, I knew a little of what to expect because I had already seen the courtroom, although nothing can substitute for being there in person.
Observers from Indiana at Ft. Meade monitoring a Guantanamo Bay Military Commission hearing in 2016.
Developments in Guantanamo Bay
As I prepare to depart for Guantanamo I am cognizant of changes that are occurring in the Bay. Secretary Mattis fired the Convening Authority, the case involving the U.S. Cole bombing has been abated, a new attorney client meeting building is in the works, and a contract was awarded to construct a new school. Further, Joint Task Force Guantanamo is examining prisoner/detainee capacity and what it would take to increase capacity and bids are requested for a mental health facility with padded cells . Staying up-to-date is essential to the role that we have as observers. I will continue to update this blog through my return so that others will know the goings-on during my travels.
Observers from Indiana at Ft. Meade monitoring a Guantanamo Bay Military Commission hearing. Observers were permitted to see / hear the video / audio feed from the Guantanamo courtroom. (file photo)
Public observers at Ft. Meade, Maryland were banned today from watching satellite broadcasts of a hearing being conducted in the Guantanamo Bay courtroom, even though public observers physically at Guantanamo were permitted to view the same hearing.
Pentagon pledge of open and transparent hearings
For many years U.S. Military Commissions have been held at Guantanamo Bay, Cuba, to try individuals charged with war crimes. The Pentagon has stated that these criminal proceedings should be open and transparent, and that to facilitate transparency the Pentagon permits a small number of Observers to travel to Guantanamo to monitor hearings. Observers typically represent human rights or advocacy groups, or academic programs. Observers serve as eyes and ears for the general public, who do not have the opportunity to travel to Guantanamo Bay to witness hearings.
The Guantanamo Bay Military Commission Courtroom, viewed from the spectator gallery. (file photo)
Observers sit in an enclosed spectator gallery in the rear of the Guantanamo courtroom, separated from the lawyers, prosecutors and defendants by a double-paned glass. Observers can see what is going on in the courtroom, and hear what is said.
The Pentagon also permits Observers to view Guantanamo proceedings by close-circuit television (CCTV) in a secure facility at Ft. Meade, Maryland. Observers at Ft. Meade can see what the cameras are pointing at in the Guantanamo courtroom, and hear what he Observers at Guantanamo hear.
Today, in what appears to be the first time, Observers were permitted to be present in the Guantanamo courtroom spectator gallery and monitor proceedings live, but Observers were not permitted to view those same proceedings by CCTV at Ft. Meade.
Thus, NGOs in the U.S. were effectively banned from monitoring today’s proceeding.
Why the ban?
It is unclear why Observers in the U.S. were banned from monitoring the hearings by CCTV at Ft. Meade today, while Observers could view the hearings live at Guantanamo.
Lawyers for the prosecution and defense apparently argued yesterday and over the weekend about the Ft. Meade ban. But, at least some of those arguments were held behind closed doors, with no Observer being permitted to hear. Though motion papers were filed related to the ban, those documents are subject to a security review and are not releasable to the public until after 14 days, and may not be released even then.
There are 5 Observers at Guantanamo this week, and they were able to hear some arguments about the Ft. Meade ban. Indeed, they were in the courtroom able to witness today’s hearings – the same hearings from which the Fort Meade Observers were banned.
Again, it is unclear what the convincing argument is that Observers can watch today’s proceedings live in the Guantanamo courtroom, but other Observers cannot watch today’s proceedings by CCTV at Ft. Meade.
My Ft. Meade experiences today
I arrived at Ft. Meade well before the scheduled start time of today’s hearing. The staff member who oversees the Ft. Meade viewing room was there, the lights were on in the room, and the miniature lockers were in place in the rear of the viewing room so Observers could store their cell phones which can’t be used during the CCTV broadcasts.
The minutes ticked away, and soon I learned that an official message had been received that the hearings would not be broadcast to Ft. Meade today, and that was by order.
Nevertheless, I waited to see if the hearing would open, with an announcement of closure made, before the transmission stopped.
Also, was there still a chance that the hearing would be transmitted in full? Just as an order is made, an order can be reversed.
In today’s case, the initial order regarding this week’s hearings was that Observers could monitor at Guantanamo Bay and at Ft. Meade. A subsequent order reversed the portion of the former order that permitted transmission to Ft. Meade. That reversal prohibited the transmission to Ft. Meade. That reversal could very well have been, and could still be, reversed, and transmission could have occurred today. It appears that it would only take a flip of a switch to begin transmitting from Guantanamo to Ft. Meade, and that such transmissions could be started at any point.
I continued to wait. The large video screen in front of the viewing room stayed dark and blank.
The person at Ft. Meade who oversees the technical side of the transmission sits in a different room of the same building where the viewing room is. I checked with that person, and was informed that there was no sign that the transmission would commence.
I left about 90 minutes into the hearing, with the screen still dark and blank, witnessing none of today’s testimony.
Options?
Yesterday I discussed in a blog post what my options were for being able to observe today’s hearings, particularly since I (and other Observers) chose not to travel to Guantanamo Bay this week in part because we were initially permitted to observe at Ft. Meade. We were informed 4 days ago (Friday) that NGOs would be banned from viewing the hearings at Ft. Meade. By then it was too late to catch the Sunday flight to Guantanamo Bay to view the hearings in person, sitting in the spectator gallery, along with the 5 Observers who are there. There are 14 seats reserved for Observers in the Guantanamo courtroom, so they had room for 9 more Observers this week.
Had I known last week what I know today, I definitely would have requested travel to Guantanamo Bay for this week’s hearings.
I am scheduled to deliver in Australia early next week, and I could have delivered (and still could deliver) that lecture by video rather than in person, freeing me to be at Guantanamo Bay for this entire week. Indeed, if I could go to Guantanamo tonight or tomorrow for the remainder of this week’s hearings that are not being transmitted to Ft. Meade, I would do so and deliver the Australia lecture by video.
Perhaps the Military Commission will permit Observers who were banned from viewing this week’s proceeding at Ft. Meade to view the videotape? The videotape cannot be classified, because if it were, then the 5 Observers at Guantanamo this week would not have been permitted to be in the courtroom for the hearing.
If the reason for the Ft. Meade ban was security associated with transmitting it stateside – maybe the possibility of interception / hacking – then I and other interested Observers could watch the videotape in a secure room at the Pentagon, or in a secure facility when we are next at Guantanamo Bay – and even possibly watch the video in the courtroom itself.
Also, if any victims and family members of victims (VFMs) are interested in watching the video, maybe they will be permitted to do so as well. Several FVMs were present in the Guantanamo courtroom for today’s hearings, but VFMs were denied the opportunity to observe today’s hearing at Ft. Meade, just as Observers were denied the opportunity to observe. Indeed, any member of the general public, aside from Observers, were similarly denied the opportunity to observe at Ft. Meade, though members of the general public are entitled to observe at Ft. Meade, as are Observers, VFMs, and media.
I was scheduled to travel to Ft. Meade, Maryland, the week of Monday, 14 August 2017 to monitor pre-trial hearings in the Guantanamo Bay U.S. Military Commission case against an alleged high-level al Qaeda member. The hearings were to be broadcast via-closed circuit television (CCTV) from Cuba to the Ft. Meade army base, where I have monitored hearings in all the active Guantanamo Bay cases. The U.S. government has stated that Guantanamo Bay (a/k/a Gitmo) proceedings should be open and transparent, and that CCTV broadcasts to Ft. Meade promote openness and transparency.
Now, unexpectedly, it is unclear whether the CCTV will operate this week, and whether I and others will be able to observe this week’s proceedings at Ft. Meade.
I was informed that the military judge in charge of the case has reversed an earlier ruling, and has now prohibited this week’s proceedings from being broadcast to Ft. Meade. His new ruling apparently permits 5 monitors who traveled to Guantanamo this weekend to observe / monitor the hearings while sitting in the spectator section of the Guantanamo courtroom. However, monitors such as myself who planned to observe from Ft. Meade are effectively banned from observing this week’s proceedings.
In addition, presumably members of other stakeholder groups – such as victims and their families (VFMs), media, and the public at large — are likewise banned from observing this week’s proceedings at Ft. Meade. And, again, the only observers permitted to monitor are those who happened to be on the plane to Guantanamo Bay this weekend.
What are this week’s hearings about?
The defendant in this week’s case is Mr. Hadi al Iraqi (Mr. Nashwan al Tamir), who is an alleged high-level member of al Qaeda who allegedly perpetrated war crimes. This week’s hearings are out of the ordinary in that they would not consist primarily of prosecution and defense lawyers arguing about a range of issues that are typically resolved pre-trial. Instead, this week would consist of testimony by a different Guantanamo detainee, Mr. al Darbi, who pleaded guilty and is cooperating with the government as a witness against Hadi. Ordinarily, a government witness would testify at the actual trial, and not during the pre-trial hearing stage. However, al Darbi is set to be repatriated to his home country soon, and is not expected to be available to testify live during the trial. This week’s testimony is in part a stated attempt to “preserve” al Darbi’s testimony (in the form of a deposition), which could be introduced against Hadi at trial.
My interests in this week’s hearings
I am a professor of international law, and founded the Guantanamo Bay U.S. Military Commission Observation Project / Gitmo Observer at Indiana University McKinney School of Law. (www.GitmoObserver.com) The Pentagon granted our Project status that permits us, as a non-governmental organization (NGO), to send observers / monitors to Guantanamo Bay and Ft. Meade to observe / monitor hearings.
Our Indiana Project is a independent and objective. We are not aligned with any side or party associated with the military commissions.
Among other things, we have developed the Guantanamo Bay Fair Trial Manual,* which independently and objectively examines rights and interests of all categories of Gitmo stakeholders, not just the rights of the defendants. The Manual explores rights and interests, under international and U.S. law, of the following stakeholder groups: defendants (as mentioned), the prosecution, victims and their families, media, witnesses, the Court and its employees, the Guantanamo Bay guard force, other detainees, NGO observers, and others.
Many of our Indiana observers have traveled to Ft. Meade and Guantanamo Bay to monitor hearings. We publish, among other things, blog posts on http://www.GitmoObserver.com.
The judge’s earlier ruling – Yes, NGOs can view at Ft. Meade this week.
The judge in the Hadi case initially ruled that the taking of al Darbi’s testimony, in the form of a deposition, would be open to the public. For purposes of this blog post, that meant at least two things:
NGO representatives would be permitted to fly to Guantanamo Bay, Cuba to be present in the courtroom’s spectator gallery so they can observe / monitor the deposition live; and
NGO representatives, and other members of the public, would be permitted to travel to Ft. Meade, Maryland where they could observe / monitor the deposition via close circuit television.
NGOs being permitted to observe at both Gitmo and Ft. Meade has been standard for hearings for years.
The Judge’s most recent ruling – NGOs are prohibited from observing at Ft. Meade this week
This past week, word circulated that the judge had issued an order prohibiting NGOs (and presumably prohibiting other stakeholders) from viewing the al Darbi deposition via CCTV at Ft. Meade. Apparently NGOs who traveled to Guantanamo this weekend could still observe the deposition live in the courtroom.
I have not actually seen the judge’s ruling, as his rulings, like all filed pre-trial hearing motion papers, are not ordinarily released to the public until the papers undergo a security check, a process that takes at least 14 days. However, word of the ban reached me and others.
Options for me to observe / monitor the hearings this coming week?
I had the opportunity to apply for an NGO observer slot to travel to Guantanamo Bay to monitor the hearings live this week from a seat in the courtroom’s spectator gallery. But, I decided not to apply in part because I believed I would be able to observe this week’s hearings at Ft. Meade.
Had I known that the judge would reverse his ruling and ban NGOs from observing the hearings at Ft. Meade this week, would I have applied for an observer slot to travel to Gitmo for the deposition? Most probably yes.
Though I had a law lecture scheduled in Australia for the week following the Hadi hearings, I would have sought harder to figure out a way to get to Gitmo for the deposition and still arrive in Australia for my lecture. I had figured out that I could do both – fly to Gitmo and fly to Australia, and that would have been my preferred course. But, again, I decided that I could observe at Ft. Meade this time and avoid scheduling issues.
When I learned that the judge prohibited CCTV feed at Guantanamo this week, I thought about how I could get to Gitmo this weekend. It turned out to be an unsurmountable challenge, because, for example, timing was short for the paperwork that needed to be completed before Gitmo travel.
My plans for the al Darbi hearing / deposition
At the moment, I plan to travel to Ft. Meade on Monday morning, 14 August 2017. Though I have been informed that the feed has been cut to Ft. Meade for Monday, the possibility exists that the judge will change his mind and re-open the hearings at Ft. Meade, making it possible for me, other NGO representatives, and other stakeholders to observe / monitor there – again, if the judge orders the CCTV to go forward for Ft. Meade and if any of us is able physically to be present at Ft. Meade this week.
George Edwards
* The full title of the Manual is “Guantanamo Bay Fair Trial Manual for U.S. Military Commissions: An Independent & Objective Guide for Assessing Human Rights Protections and Interests of the Prosecution, the Defense, Victims & Victims’ Families, Witnesses, the Press, the Court, JTF-GTMO Detention Personnel, Other Detainees, NGO Observers and Other Military Commission Stakeholders”
I travelled to Ft. Meade, MD to monitor a US Military Commission in the case of Al Nashiri, as I was representing the Military Commission Observation Project, of the Program in International Human Rights Law. The following are a few charges brought by the government: Murder in Violation of the Law of War and Attempted Murder in violation of the Law of War. al Nashiri is the alleged mastermind for the bombing of the USS Cole and other maritime attacks.
Indianapolis to Ft. Meade:
I chose to view the al Nashiri hearings at Ft. Meade during the week of 12/12/2016 and view via CCTV. I flew United Airlines from Indianapolis to Dulles Airport on Sunday, 12/11/2016, where I rented a car and drove an hour to Laurel, Maryland. I stayed at the Days Inn in Laurel, which is fifteen minutes (7 miles) from Ft. Meade. The hotel rates were lower in the area, so I did not mind a 15 minute drive, which is easy to navigate during rush hour.
Arrival to Visitors Center at Ft. Meade:
The hearings were originally scheduled to being at 9:00 AM on Monday, but I learned via email from Prof. Edwards, that the hearings would be delayed for two hours. It was recommended that I arrive at Ft. Meade’s visitors center two hours before the start time of the hearing, so I arrived at 9:00 A.M., so that I could pick up my Ft. Mead Badge to permit entry to the base each day. I went to the Ft. Meade Visitors Center to pickup my badge, I had two show two pieces of ID for them to Issue my Ft. Meade Credential and an easy process (since I had a background check completed through my the Observation Project prior to travel). The line was short at 9AM, but it should be expected for there to be longer lines at 7AM, since that is the time the Visitors Centers open and anyone visiting the base would need to obtain credential prior to entering. I drove through an inspection point, the entry point is directly behind the Visitors Center, which was an easy process. The guards request to see a form of ID with the permit that was obtained at the Visitors Center. The guards will randomly search vehicles, follow instructions of the guards and all will go smoothly. If you are driving a personal vehicle, the guards may request to see insurance paperwork with your credentials and ID. I was driving a rental guard, so I provided the proof of insurance that was purchased through the rental car agency. Federal Law requires that all vehicles have updated insurance coverage when on base.
Observation Day 1
The al Nashiri hearings were broadcast by CCTV into a classroom at Ft. Meade’s McGill training center. When you arrive at the training center, be prepared for security to do a quick wanding, then lock up your cell phone in a small locker in the classroom. It is advisable to leave other devices and laptops in your hotel room or the trunk of your vehicle.
I attended three days of hearings, and each day there was only one other person in the room. That person was responsible for ensuring all phones were stored in the lockers. One the large screen in the font of the classroom, I could see different views of the courtroom at different times. The camera seemed to be pointed at the person who was speaking at the time, whether it was Judge Spath (the military judge), the prosecution or defense lawyers, or the Defendant al Nashiri himself.
At the beginning of the Day 1 hearings, Judge Spath advised al Nashiri that he had the right to be present for all hearings, if he chose not to attend it would not have impact on decision-making regarding rulings to motions. al Nashiri nodded and waved to the judge suggesting that he understood these rights. al Nashiri also waived his right to have the court stop proceedings for specified times throughout the day for prayers.
Whenever I saw al Nashiri, he was sitting in a chair at the far end of the defense table, facing the court. He wore a white flowing shirt, but I was told later that he would wear the suit jacket of his interpreter, who was seated next to him throughout the hearing. Al Nashiri’s hands and legs did not appear to be cuffed, and I was told later that he was not cuffed. I could not see guards on the screen, though I was told that at all times there were at least four or five guards within several feet of al Nashiri at all times, though the guards were not visible to me. As mentioned, an interpreter was visible sitting beside al Nashiri and both wore headsets during the proceedings.
The defense called former assistant deputy of the Convening Authority. Edward Sherran to testify. The questioning by the defense focused on his role as assistant deputy and those of the advisors within the Convening Authority. The defense also called Lt. Col. Lewis, again to offer insight to actions of the Convening Authority at the time Gill was the only advisor that was qualified to work on the Al Nashiri case.
Day 2:
Day 2 focused on a host of motions. The first motion was by the defense, which was to compel witnesses to support the defense claim of the Convening Authority’s unlawful influence. The defense would like to compel three former Convening Authority personnel to testify – Gill, Tull and former deputy Quinn. The defense claims testimony is necessary, as the government continues to not respond with items requested in discovery motions.
The hearings then moved towards what is referenced as the “Kuwaiti Files”. The defense requests intelligence relating to the drone strikes of Al Fahdi, as there is knowledge that there was a connection between Al Fahdi and al Nashiri. The defense argued that the fact the Department of the Treasury placed Al Fahdi on a watch list for his role in the Linberg attack is evidence that there is a connection between al Nashiri and Al Fahdi, and that the evidence is relevant and necessary to a robust, effect defense of al Nashiri. The defense claims that only 20 pages has been handed over by the government, that this is insufficient and that definitely more intelligence must be available, since the U.S. would not have killed Al Fahdi in a drone strike based on 20 pages of documents. The defense argued that the motion to compel government agencies to provide evidence is necessary, as the agencies have not been forthcoming.
The court discussed that the al Nashiri case has been in the discovery phase for five years, that it is necessary to move forward in a timely manner. The remainder of the Tuesday hearing focused on the defense arguing that there would be a violation of Brady and Giglio rulings, which could lead the defense to request a mistrial. Judge Spath stated the Brady and Giglio arguments are available during the appeal process, not during the discovery phase. The defense then argued that the court should still grant the motion to compel, to ensure that a record is established and that a record is necessary for the appeals court to consider post-trial.
After a lunch recess, the afternoon hearings focused on “505” matters, which meant that there were classified hearings that were closed to the public. It became clear that Friday hearings would also be classified and closed to the public.
On Tuesday, at lunch, I found the Ft. Meade food court, that offered several food options, including – Burger King, Boston Market, Philly Steaks, and Starbucks.
Day3:
Day 3, Wednesday morning hearings, were again open to the public and the Afternoon hearings were closed to cover classified matters.
In the morning, the defense raised additional motions to compel the CIA to provide information, especially relating to Black Site interrogations. The CIA claimed that tapes, containing footage of al Nashiri being exposed to enhanced interrogation techniques and these tapes were important for an adequate defense. The defense cited four other witnesses that should also be called to testify; these witnesses would provide information to the black site interrogations. One witness identified was Mitchell, who recently released a book relating to the Black Site operations.
The morning hearing was shorter than the first two days, but it was full of defense arguments as to why government agencies should be compelled to provide evidence, while the prosecution arguments that evidence relevant to the case has always been provided.
Conclusion:
It was fascinating to observe arguments presented by both the defense and prosecution, especially in a case that has been in the discovery phase for five years. I was able to understand the motions in the proceedings, as I reviewed the case summary that is available on the Observation Project’s website and the government web site, which provides transcripts and motion history/rulings. I learned a great deal about the matter regarding enhanced interrogation techniques, which is relevant to the defense of al Nashiri and I am curious as to how the court will approach this matter. Will the court compel a witness, like Mitchell, to testify?
I look forward to the opportunity of attending more hearings in the future, as being a student in the Masters of Jurisprudence program, it was relatively easy to understand the flow of the hearings and fascinating to how a court of law is operating in Guantanamo.
Heather Wilhelmus, MJ Student,
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Sunrise over the snowy Joint Base Andrews Airstrip.
[Posted on behalf of S. Willard]
This morning (Sunday the 8th of January) I am traveling to Guantanamo Bay, Cuba to serve as an observer / monitor of criminal hearings in a U.S. military commission case against Abd al Hadi al Iraqi, who is an alleged high ranking member of al Qaeda Iraq and liaison with the Taliban. The U.S. has charged with war crimes resulting in deaths.
I am an Indiana University McKinney School of Law student on mission representing the Indiana University Program on International Human Rights Law’s (PIHRL) Military Commission Observation Project (MCOP). As an observer / monitor, my role is to attend, observe, analyze, critique and report on the military commissions – both the substance and the process.
My passport and Gitmo flight boarding pass.
I arrived at Andrews Air Force Base, just outside of Washington, DC, at 5:00 a.m. for my flight to Cuba, which is supposed to depart at 8:00 a.m. I checked in for my flight, presenting my passport, my Military Orders, and my APACS (which I explain in an earlier blog). It looks like the flight is on schedule this morning.
I met my fellow NGO observers from different human rights groups (NGOs), and we are almost ready to board our plane to take off for Guantanamo Bay, Cuba from Andrews Air Force Base (which is the home of Air Force 1). We were told that the travel will be about 3 hours and 15 minutes.
I have my boarding pass in hand (see the photo) and my yellow Guantanamo Bay Fair Trial Manual: Excerpts copies of which I distributed to the other observers.
I took a few photos at Andrews this morning. I will post additional photos and substantive posts when I arrive at Guantanamo Bay. Because I am having trouble with wifi at Andrews, I am asking Professor Edwards (the Indiana program founding director) if he will post this Andrews Post for me.
Sheila Willard (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
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 GuantanamoGuide (76 pages). Send to GitmoObserver@yahoo.com
I was selected to travel to Ft. Meade, Maryland to monitor U.S. Military Commission pre-trial hearings broadcast live via CCTV from Guantanamo Bay, Cuba to a secure Ft. Meade facility. I represented the Indiana University McKinney School of Law’s Military Commission Observation Project, which has been sending faculty, staff, students, and graduates to Guantanamo Bay and Ft. Meade to monitor these war crimes proceedings. The case I was dispatched to monitor was against Abd al-Rahim Hussein Muhammed Abdu al-Nashiri, who is alleged to have masterminded the 2000 attack on the U.S.S. Cole that killed 17 U.S. sailors, and wounded dozens more, off the coast of Yemen. I observed the hearings on October 18th and 19th.
Arriving at Ft. Meade
I arrived at Ft. Meade on Tuesday morning, October, 18 2016, and went to the base Visitor Center to pick up my badge that would permit me to enter the base. I encountered a slight delay there, as they could not locate my badge. After about fifteen minutes, one of the employees found the badge in a file on the front reception desk. She informed the other employee that all of the badges for the hearings are kept in a folder at the reception desk.
Note: If you arrive at the Ft. Meade Visitor Center and they can’t find your badge, ask if it is inside a folder at the reception desk!
After they found my badge, they took my photograph and handed me a paper badge that would allow me access to Ft. Meade for two days. The receptionist told me to exit through the left side of the parking lot and to proceed to the vehicle inspection area. After a brisk inspection of the vehicle, I was on the base and easily found the McGill Training Center, where the hearing would simultaneously broadcast from Guantanamo Bay, Cuba.
Justin at Ft. Meade Commissary
I parked in an apartment parking lot that is located across the street from the McGill Training Center. I made my way into the building and to the door of the viewing room, which was like a medium-sized high school classroom. The video feed was already being broadcast and there were four observers in the room, along with a person who I understand was a contractor hired to oversee the process.
In the back of the room is a big chest with individual small lockers where you can store cell phones. Knowing that cell phones were not allowed to be used in the room, I had left my cell phone in the rental car.
The video was clear, and the sound quality was generally good. At times the video feed or sound would cut out briefly but it was not often and generally only lasted for a couple minutes. The room was very cold both days. I would suggest that anyone observing hearings at the McGill Training Center to dress in layers and bring a light jacket.
al Nashiri Hearing Observations
Military Uniforms
I noticed that the prosecution’s military counsel, namely Chief Prosecutor Mr. Martins, wore a highly decorated uniform compared to the less decorated uniform of the Detailed Defense Counsel, Ms. Pollio. I have some concern that a jury may be influenced, whether consciously or subconsciously, into believing that Mr. Martin is more credible or knowledgeable because he is more highly decorated than Ms. Pollio. Although a jury may always form some judgment of an attorney’s capability or credibility by their appearance, attorneys in civilian courts do not display their achievements and accomplishments on their clothing. al Nashiri may be prejudiced by the prosecution counsel appearing to be a higher ranked and more qualified military member.
Mr. Martin
Ms. Pollio
al Nashiri’s Presence in Court
al Nashiri was present for most of the court proceedings on October 18th and 19th.
al Nashiri
However, al Nashiri was absent for a little over an hour of the hearing on October 18th. On October 18th, the court took a brief recess and when the court returned al Nashiri was absent. Mr. Kammen, the defendant’s civilian attorney, informed the court that al Nashiri was not feeling well and that he was in a backroom that had a video feed of the court. al Nashiri’s counsel confirmed with the court that he voluntarily absented himself from the court proceedings.
The prosecution said that there was an issue with al Nashiri’s absence because there had been no in court waiver. Specifically, Mr. Martin asked the judge to bring al Nashiri back to the courtroom until there was an in court waiver. The judge said that he was comfortable with al Nashiri’s absence from the court because al Nashiri’s counsel, Mr. Kammen, had spoken with al Nashiri and the absence was going to be brief (approximately thirty minutes). The judge made a finding that al Nashiri voluntarily removed himself from the court proceedings. The hearing went for another thirty minutes or so and then the court took recess for lunch. After the lunch recess, Al Nashiri was back in the courtroom and the judge questioned him regarding his prior absence from the court. al Nashiri confirmed that he was previously not feeling well and that he had voluntarily left the proceedings.
I felt that the judge made great strides to ensure that the record clearly reflected al Nashiri’s absence being voluntary and uncoerced. However, I do feel that the process would be more transparent if the video feed showed al Nashiri more often. Because the video was generally either showing the lectern or the judge, al Nashiri was not seen on the video very often. I would estimate that over the course of the two days I was in Ft. Meade, I saw al Nashiri on the video feed for a total of approximately ten minutes. I would have preferred a split screen that showed whoever was speaking and also showed the defense table. I think the public would benefit from being able to see that al Nashiri was present and engaged in his trial.
I hope we are not arguing about parking spaces
During most of the October 18th and 19th hearings, the days were spent hearing arguments regarding the defense’s claim that the prosecution may have attempted to unlawfully influence the Court of Military Commissions Review (“CMCR”). The defense had filed a motion to compel the prosecution to release all ex parte communications. The prosecution had put together a binder of emails, which they voluntarily provided to the judge for him to perform an in-camera review. The prosecution claimed that the emails were administrative in nature and non-discoverable. The prosecution further claimed privilege and judicial privilege for the emails. The judge informed the parties that the only emails at issue were two email chains–-exhibits 355e tabs 3 and 10. The judge stated “wouldn’t it be better for the public trust to hand them to the defense.” The judge said that he was keeping the public trust in mind. Many times throughout the hearing the judge asked if this was really something they wanted to spend time arguing about. It appeared to me that that judge thought that the two emails chains were not something that the court should be spending two days hearing arguments about.
The defense’s position was that the emails must be relevant and important because the prosecution was fighting so hard to keep them out of the defense’s hands. The prosecution seemed to be arguing that it was more about principle and that they were not legally required to turn the emails over. In this respect it appeared that the prosecution was less concerned with the public’s interest in having an open hearing. Although, the prosecution did argue that it was better for the public’s trust in the proceedings to follow the law and not turn over emails that are not discoverable. Mr. Kammen retorted by stating that secrecy destroys the public’s confidence, especially in a court where the rules are constantly changing. Mr. Kammen closed the defense’s argument by saying that he hoped that they had not spent all day arguing about emails that were related to where the prosecution was supposed to park.
The judge granted the motion, but only as to exhibit 355e tabs 3 and 10. The judge stated that one tab is about parking and the other tab is an administrative discussion about who is going to do a security review. The remainder of the discovery request was not granted and will stay under seal in the record. The judge appeared to be annoyed that two days had been spent arguing over emails that were administrative and generally unimportant. The judge stated that the emails are not privileged and not discoverable. However, because the prosecution had voluntarily provided them to the judge for an in-camera review, he was obligated to make a decision on them.
After the decision, Mr. Martin basically stated that he did not think that the judge had the authority to order the government to turn over the emails. The judge retorted that he was confident that he had the authority. The judge informed Mr. Martin that he had made a decision and had the authority to do so. He told Mr. Martin that the court was about to take a recess for lunch and that Mr. Martin should turn the emails over to the defense during the recess. The judge also told the defense counsel to think about what remedy they would ask for in case the prosecution did not turn over the emails. After the court returned from lunch, the prosecution turned over the exhibits 355e tabs 3 and 10, although Mr. Martin continued to argue that he did not believe that the government was required to do so.
I understand the need to follow the law. In this case, considering that the prosecution had voluntarily provided the emails to the court, I think it was proper to release them. If the emails were not released, it would have seriously eroded my confidence that the emails were only administrative in nature. The prosecution fought very hard to keep the emails out of the defense’s hands, and it seemed to me that the emails likely contained ex parte communication that was not just administrative. I was somewhat surprised when Mr. Martin agreed to turn over the emails after the lunch recess. However, his doing so made me feel that the proceedings were more transparent and that the prosecution was not concealing unlawful ex parte communications.
Repeated Defense Counsel Complaints
Unlike an Article Three court, the defense cannot simply call anyway witnesses that they would like to question. Mr. Kammen repeatedly stated that the prosecution must approve of any witness that the defense wishes to call. If a person’s testimony was going to be severely adverse to the prosecution, it appears, according to Mr. Kammen’s argument, that the prosecution could deny the defense the opportunity to call that person as a witness. This seems very unfair and it would certainly hinder the defense counsel’s ability to properly defend al Nashiri. Additionally, the ability to keep relevant witnesses out of the courtroom significantly hurts the transparency of the proceedings. If the Commission wishes to have transparent proceedings, all relevant witnesses should be allowed to testify. This is the only way to ensure that the proceedings will result in a just outcome.
Another claim by the defense is that al Nashiri’s housing during the hearings is inadequate. The defense wants to call two witnesses, both are employees at Guantanamo Bay, but the prosecution is not allowing them to call the witnesses. At the same time, the prosecution is stating that the defense has the burden to prove the claim. al Nashiri’s defense counsel, Mr. Kammen, complained that it is unfair for him to have the burden to prove a claim but not have the ability to call the witnesses that he needs in order to prove the claim.
Conclusion
At the end of the day, I feel that the judge was working hard to get past some of the petty arguments raised by both sides. He came across as being very aware that the process needed to be as transparent as possible. However, the case does not appear to be close to actually going to trial yet. Considering that this case has been going on for 16 years, there has to be a way for the Commission to act more efficiently, while also serving justice in a fair and transparent manner.
For those who are interested in being an observer, I highly encourage you to apply. The IU McKinney Military Commission Observation Project is a unique opportunity and has been designed to get observers up to speed quickly. I found that the Guantanamo Bay Fair Trial Manual was very helpful for gaining an understanding of the proceedings and the background information necessary to understand the hearings.
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
My name is Sheila Willard and I am a 2L student at IU McKinney Law. Born and raised in Texas, I moved to Indiana a year and a half ago with my Hoosier husband to escape the humidity and to start a new life in the Midwest. My parents hail from Argentina, South America, and I am a first generation American.
I first became acquainted with the Military Commission Observation Project (MCOP) after receiving an email from Professor Edwards soliciting applications from those interested in participating in the observation of 9/11 hearings. My entire adult life I have been concerned with human rights and, having grown up with the tragedy of 9/11, the email naturally piqued my curiosity. I submitted my application, and hoped for the opportunity to be involved in an observation. A few weeks later, I received clearance to observe the hearings at Ft. Meade, Maryland, during the week of October 10, and immediately began planning my trip there.
Travel from Indianapolis, IN to Ft. Meade, MD with a stop in D.C. on the way.
Due to Hurricane Matthew wreaking havoc in the Caribbean and off the southeast coast of the U.S., the hearings originally scheduled to begin on Monday, October 10, will likely be pushed back a day and begin instead on Tuesday, October 11. As of this afternoon, there is no update stating otherwise, so I may change my flight to arrive on Monday instead of Sunday, as originally planned. Regardless, I am happy for the opportunity Professor Edwards has given us and am looking forward to making the trip next week.
Until then, I am preparing by reading the Guantanamo Bay Fair Trial Manual and keeping a watchful eye out for further instructions. I am excited to make the trip, but am emotionally torn for the thousands of people affected by Hurricane Matthew. As of this afternoon, the casualties have soared to over 800 people in Haiti, and Florida is next to be hit. Having lived in Houston through Hurricanes Katrina and Rita, I know from experience how much stress is involved in evacuation and how much heartbreak is felt in the aftermath. I pray for the people who have lost everything overnight and hope for the strength they will require to rebuild their lives.
First reports of Hurricane Matthew aftermath on Haiti. USA TODAY, Photo: Dieu Nalio Chery, AP (10/7/16)
Sheila Willard, 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
Omar Mohammed Ali al-Rammah – Internment Serial Number 1017 (“Zakariya”)
I was back at the Pentagon today at 7:30 a.m. (Thursday, 21 July 2016) to monitor the Periodic Review Board (PRB) hearing during which Yemeni detainee # 1017 asked the U.S. government to release him from the Guantanamo Bay, Cuba prison after being held there for over 13 years, about one-third of his life.
Omar Mohammed Ali al-Rammah, who is referred to as “Zakariya” by his U.S. Government personal representative and “Zakaria” by his private counsel, hopes that the PRB will find that he is not a threat to US national security, and that the U.S. Government will thus release him Guantanamo detainees can either be repatriated to their home country, or resettled in a third country.
Currently, 76 detainees remain at Guantanamo Bay, down from the approximately 780 detainees who have been held at the remote prison since January 2002.
Monitoring today’s PRB
After winding down Pentagon corridors, my escort and I arrived at the non-descript conference room where we would watch live feed direct from Guantanamo. We were later joined by 3 NGO representatives and several military officials.
The PRB was scheduled to begin at 9:00, but Guantanamo informed us that we would be on a 5-10 minute delay. While waiting, we caught the tail end of a Military History Channel show on Gettysburg, and heard details of battle strategy successes and failures, the carnage, and how Gettysburg got its name.
We then watched the beginning of The Wehrmacht: The Turning Point, that shifted us from the American Civil War to World War II.
At 9:06 or so, the Military History Channel was switched to the video-conference platform, and we could see Zakariya, his U.S. Government-appointed personal representative, his private counsel, and a linguist, sitting around a small, rectangular table in what looks like a Guantanamo Bay trailer.
The PRB commenced at 9:08.
The large screen image of the Guantanamo participants was a bit grainy, though I could see the faces of the linguist, he personal representative, and private counsel pretty well. Zakariya sat furthest from the camera, and his image was not as neatly visible, such that it wasn’t clear to me whether he had a closely cropped beard or was clean shaven. (It was clear that he did not have a big, bushy beard as last week’s detainee had.)
Zakariya wore an elbow length white garment, like a classy rounded-neck tunic, with what appeared from a distance to be an emblem or logo on the left breast. His rounded glasses complemented a face that looked young, compared to the faces of some of the detainees I have seen via video at the Pentagon and Ft. Meade, and whom I’ve seen in person at Guantanamo Bay.
Zakariya had three stacks of paper in front of him, and during the hearing he would periodically shuffle the pages. He’d pick up a sheet from one stack and place it in another stack, then later do the same with another sheet, then later shift the paper back to the original or the third stack. At times he sat seemingly patiently, with his hands folded gently on the table-top.
The linguist uttered not a word the entire hearing. The voice of unseen interpreter would at times chime in, with the interpretation being one way – with the non-Arabic speakers speaking to Zakariya.
Zakariya did not speak in the public portion of his PRB, as he is not permitted to do so.
Why? Because everything that Zakariya says is presumed to be classified, and the public is not entitled to be privy to classified information. So, NGOs, media, and others without security clearances cannot hear a detainee speak directly at his PRB. Some detainees appear to authorize their PRB transcripts to be posted on Periodic Review Secretariat’s (PRS’s) website.
After formalities, presented off-camera by male and female voices, the personal representative read his one page Opening Statement. Then the private counsel read her two page Opening Statement.
No PRB member had any questions. The public session ended about 18 – 19 minutes after it began.
Zakariya’s background – early life & leading up to capture
Zakariya was born and raised in Jeddah, Saudi Arabia, but his family is by blood Yemeni.
His personal representative indicated that in the 1990s Zakariya traveled to Bosnia to help protect Muslims there. After being injured, he returned home for a couple of years before traveling to Chechnya to help Muslims there, and then after further training in Afghanistan traveled to the Republic of Georgia. He was captured in Georgia, transferred to Afghanistan for a year, and then sent to Guantanamo Bay. He is approximately 40 or 41 years of age.
U.S. Government’s view of Zakariya’s activities
Zakariya’s personal representative’s comments about Zakariya’s time in Chechnya, Afghanistan, and Georgia are consistent with what the Government outlined in an unclassified summary it read into the record at this morning’s PRB. But, the Government version includes specific allegations not mentioned in the personal representative’s statement (or the private counsel’s statements).
The Government’s unclassified statement states that Zakariya was “a trusted but low-level mujahidin facilitator” and he “arranged to acquire fraudulent passports, and sought to acquire weapons, ammunition and other supplies for mujahidin operations in Chechnya”.
No contact with Zakariya’s family; Life after Guantanamo?
In today’s remarks, all sides agreed that Zakariya had had no contact with family since his arrival at Guantanamo Bay, and that he has little formal education. While the Government states that “he has not articulated any plans or hopes for his life after release”, his private counsel stated that “he would like to work in a store, perhaps one selling sweets, or drive a taxi”. Furthermore, the private counsel stated that Reprieve’s “Life After Guantanamo” program “has agreed that Zakaria can participate in that program”, and that two international law firms (including the private counsel’s firm — Kelly, Drye & Warren), “are committed to continuing our work as his lawyers to give him or find for him whatever assistance is needed.”
The U.S. Government Unclassified Summary for Zakariya, that was read into the record today by a faceless female off-camera voice, is here:
Today’s hearing is a Periodic Review Board (PRB), and was conducted pursuant to a 2011 Executive Order which has required most detainees to have a “periodic review” of their detention status. Though Zakariya has had similar reviews under now defunct processes, this was his “initial review” (or “initial PRB”) under the 2011 procedure.
If a detainee is cleared for release after his initial review, he would have no additional hearings. If he is not cleared for release he would have a “file review” every six months. If he remains uncleared, he would have a “full review” every three years.
About 60 the 76 men remaining captive at Guantanamo are entitled to PRBs per the rules, and about 55 have had an initial review. Many who have had initial reviews were subsequently cleared for release, and many of those have actually been released post-initial review.
Yesterday, 20 July 2016, the Pentagon released PRB hearing dates for 7 additional detainees, with roughly 2 scheduled each week in August 2016. I was informed that an additional 3 PRBs will be scheduled, and these will be the final “initial reviews” for all of the detainees eligible for PRBs.
PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings.
Who else was present at the PRB?
As mentioned, present in the room in which Zakariya sat were his personal representative, his private counsel and a linguist. Four NGO representatives and several military officials could see those four people on two screens in our Pentagon conference room.
Hidden voices announced other people who were present for the hearings, though none of these others who were “present” could be seen by us at the Pentagon. Presumably these others were in virtually attendance, with some of them persona even viewing from a different room at the Pentagon. Some who were present were certainly on sight at Guantanamo Bay.
Others present for the PRB but out of sight included members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. Presumably each of those representatives will watch remotely in his or her office in the DC area. Also present but out of sight were re the Legal Advisor to the Board; the Case Administrator; a Hearing Clerk; and a Security Officer. And, as suggested, staff at Guantanamo Bay were necessarily present, and also out of sight.
Other information – PRB, Other proceedings
The Government is expected to release additional PRB-related documents over the next couple of days.
Joint Task Force – Guantanamo (JTF-GTMO) Assessment
The Pentagon’s PRB Conference Room
I mentioned in a previous post that I would share a little about the conference room where the PRBs are viewed.
The office suite that contains the conference room has always looked as though no one works there. Maybe its occupants take leave when the PRBs are aired in their conference room.
The suite has large windows commanding a spectacular view of Washington, DC monuments across the Potomac. Inside, 10 leather high-back chairs surround a slender diamond-shaped table, that has a hidden compartment where our “missing” conference call spider telephone was finally found after phone and video-chat messages saying “we can’t find the phone to connect to the PRB”. The rich blue carpet complemented the wood and leather, and even matched the dozen grayish and red low-back chairs lining the walls.
On the walls hand five or six blown up photographs depicting soldiers being greeted by family when coming home, parachuters peering out of a helicopter hovering over a packed Navy football stadium, and other military scenes. In the corner behind the door was a bold, snazzy poster for Armed Forces Day, 21 May 2016, with the slogan “Americas Military – Guardians of Freedom”.
Basically, it was just a regular conference room. But it happened to have a live video connection to one of the most inaccessible, secretive prisons that exists anywhere in the world.
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.
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.
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.
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.
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.
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.
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
Right to left — Mr. Tex Boonjue, Ms. Hee Jong Choi, and me. We’re standing in front of the Post Theater at Ft. Meade.
I was at Ft. Meade, Maryland today to monitor hearings in the Guantanamo Bay Military Commission case against an alleged high-ranking al Qaeda member, Hadi al Iraqi. Hadi faces war crimes charges in the court, located in a remote area of Cuba. The U.S. military broadcasts the hearings live to a Ft. Meade base movie theater (the Post Theater) via a secure video-link.
Indiana students at Ft. Meade
I was joined by two Indiana University McKinney School of Law students, both of whom have strong interests in human rights and international criminal law. They are both representatives of Indiana’s Military Commission Observation Project (MCOP).
Ms. Hee Jong Choi is a rising third year student who is an intern in Indiana’s Program in International Human Rights Law. She has been working on North Korean human rights issues, while she was based in South Korea for the first half of the summer, and while based in Washington, DC at an NGO (HRNK – The Committee for Human Rights in North Korea) for the second half of the summer.
Fort Meade’s Post Theater is screening Guantanamo Bay war crimes hearings during the day, and San Andreas in the evenings.
Defendant’s opportunity to speak today – Conflict of interest
Today’s hearings were notable, in that the defendant had an opportunity to speak more than defendants typically speak at military commission hearings. Typically, at the beginning of a hearing week, the military judge will ask the defendant whether the defendant understands his rights. The judge lists our numerous rights, and the defendant is given a chance to answer as to his understanding of those rights. Generally, after that, the lawyers do the rest of the talking, along with the judge.
Today, an issue was presented regarding the possibility that the lawyer who represented Hadi for a year may have a conflict of interest that could have a negative impact on Hadi. The judge asked Hadi series of questions, in open court on the record, and Hadi replied. Hadi and the judge entered into a discussion about these issues.
Hearings suspended, again
Ultimately, due to questions concerning the possible conflict, the judge suspended the hearings, indefinitely.
The hearings for July 2015 had been scheduled for two weeks, beginning Monday, 20 July. The night before, this conflict issue was raised in special conference, and the judge postponed the hearings until today, Wednesday the 22nd. Today, we had about 3 hours of court time, including the time that the defendant and the judge conversed, and including pauses and a long break.
The two weeks of hearings could be over as of lunch time today.
In the meantime, many dozens of people associated with the hearings boarded a plane this past Sunday at Andrews Air Force Base, bound for 2 weeks at Guantanamo Bay. The plane may be forced to return to Andrews more than a week early, with only 3 hours of court.
At the Ft. Meade Commissary today
Who else was at Ft. Meade today?
Also in the Post Theater observing today’s hearings were 7 law student interns from the Office of the Chief Prosecutor of the Military Commissions, along with one of their supervisors, Major Chris Hartley (Army JAG, International Law Advisor). Two law student interns from the Human Rights First National Security section were present, as was another gentleman who did not identify himself. A DoD contractor was there to help ensure that no one brought cell phones into the Theater. And a technician and another administrator popped in from time to time to check up on things.
It was an early lunch day at Ft. Meade.
Greg Loyd, our Indiana McKinney representative who is in Guantanamo Bay this week, reported that there is plenty to keep him and observers busy down there, even with the hearings being suspended. He, and the rest of us, are spending time working on the Guantanamo Bay Fair Trial Manual.
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.
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.
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 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 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.
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 Edwardsand 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)
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 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.
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.
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 Observermissions 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 Manualidentifies 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.
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
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)
My name is Frank Garrett and I am a third-year law student at Indiana University, Robert H. McKinney School of Law. I leave tomorrow morning for Fort Meade, Maryland to attend the 9-11 hearings next week. This will be my first act as a member of the Guantanamo Bay, Cuba U.S. Military Commission Observation Project (“MCOP”).
I’m attending the hearings in order to help ensure that the 9-11 defendants get a fair trial. In my initial post, I’d like to explain why that’s important to me.
My interest in the MCOP stems from reading Boumediene v. Bush, 553 U.S. 723 (2008) in a Federal Courts class last spring. In Boumediene, the Supreme Court held a provision of the Military Commissions Act that stripped federal courts of jurisdiction to hear the habeas corpus petitions of Gitmo detainees unconstitutional. The government argued that the Constitution did not apply at Gitmo, or at least not to non-citizens, because the United States technically did not have sovereignty over Gitmo. When Cuba and the United States entered into a lease agreement in 1903, Cuba retained ultimate sovereignty over Gitmo. However, the United States has had complete control over Gitmo for over 100 years. In other words, the government argued in Boumediene that because the United (more…)
Me (Margaret Baumgartner) and one of my favorite members of our armed services.
Who Am I & What Did I Experience at Ft. Meade?
To put a face behind the name, I thought I’d include a picture of myself. That handsome man beside me is my brother, who is part of the reason I’ve become interested in this project. My other brother is still active duty but I want to preserve some of his anonymity since he is deploying again. Thus, I didn’t include a picture of him (I’m not slighting him!!!).
With everything I’ve seen this week, I’ve gone through a wide range of emotions. I wasn’t expecting that to occur. I would walk into the hearing in the morning, feeling that the process in place was a fair one (I do believe in justice) and then I would leave feeling conflicted. Nothing is black and white in this process. For example, I expected the government would be the party slowing the process down to avoid a verdict as they’ve taken this long to bring charges. Instead, it was the defense filing motion after motion and going off on tangents during arguments. I also wasn’t sure what I expected in Mr. Nashiri. From what the contractors said and my observations, he was very respectful (I’ve heard some of the 9-11 defendants are prone to outbursts). There were no outbursts and his responses to questions were polite. I did find it easy to keep an open mind throughout the process and I hope that in my posts, I’ve appeared neutral towards all parties and issues.
I have no career experience with international human rights law or criminal procedure. In fact, with my career, I’ve never seen the inside of a court room (patent cases rarely, if ever, go to trial). The only exposure I have to criminal procedure are the courses I took in law school (IU-McKinney School of Law, J.D. ’10) with Professor William Marsh. Professor Marsh would periodically go down to Guantanamo Bay to advise detainees of their rights. He would come back and detail his experience to us in the classroom. This mostly included a trip down and his clients refusing to see him. My interest was piqued by his chronicles (enough that I took two semesters of Criminal Procedure with him!).
Website Resources
The materials provided on this website have been a valuable resource to me. Having limited knowledge of this area of law, I found myself able to get quickly up to speed. I specifically like having everything in one place to download. We were also provided with binders containing everything on the website. I liked having the motions, conventions, and histories to flip through as I needed reference during the hearings. If I found anything that might have been lacking, it would be biographies or summaries of the parties on the prosecution and the defense.
Another helpful item was a checklist that serves as a guide on what to look for and comment on during our observations. I love lists (I get such joy from checking things off or filling out forms….that’s probably why I’m a patent attorney) and the questions in the list helped acquaint me with the defendant in greater detail. The checklist itself is lengthy and encompasses the entire process. I found myself flipping around to find questions relevant to the pre-trial process, but it was a fantastic resource.
Thoughts on the Process
Did I witness human rights violations? Is the process fair? There is no definitive answer that can be formulated with three observation days and not having access to ALL (including classified) information. I believe that the length of time that Mr. Nashiri has had to wait to have his day in court would not be stood for if this occurred in a U.S. civilian court. There would be all kinds of uproar in the media. Yet, you don’t see headlines drawing attention to this. I also understand that information that is critical to our national security cannot be revealed, but conversely, defense counsel needs to be able to build an informed case. I feel that this lack of information has contributed to the onslaught of motions and arguments (which is in turn slowing the pace). They are trying everything they can to get something to stick given their limited resources.
I’m given the appearance that Mr. Nashiri is being treated with dignity during his detainment. He seemed in good physical health at the trial. He did not appear to be starving or sleep-deprived. He seemed to be accorded his rights to attend proceedings. I was concerned about Mr. Kammen’s comments that they are monitored by video when they meet with Mr. Nashiri. A comment was also made that they thought the room also had audio surveillance. A client has a right to attorney-client privilege and it makes me question if Mr. Nashiri is being given this right. I am satisfied that Mr. Kammen is learned counsel given his experience. He honestly seems to be giving his client his best effort and he appears genuinely concerned for his client.
Closing Thoughts
I highly encourage anyone who is qualified to attend as a representative to apply. This program is a necessity to bring awareness to what is going on in Guantanamo Bay. We need to keep an eye on what happens because it will affect how we are viewed by the rest of the international community. Around D.C., there are signs posted in the metro that say “If you see something, say something”. They are for reporting suspicious activity. I think this phrase is pretty apt here as well. Get the word out.
Quiet morning on at Ft. Meade. Sign in front of the Post Theater, the site of the secure video-link from GTMO
Today was a shortened day. Hearings ran until the lunch recess. The hearing after lunch was to be classified and then they would discuss scheduling for the next couple of months. No more hearings are scheduled for this week.
The Hearings: Appearance
Mr. Nashiri declined to be in attendance today. He was present yesterday and on Monday. The defense went through a procedure to demonstrate that Mr. Nashiri’s absence was voluntary, for the record. This included having the staff judge advocate at Gitmo testify of the process whereby the accused was advised of his commissions for the day, advised of his rights, executed a voluntary waiver, used an interpreter, etc. I think it was well established that Mr. Nashiri chose on his own accord to not attend and it was clear from the evidence presented by both parties that it was a voluntary choice.
The Hearings: Decision on Funding for Defense Contractor
Judge Spath granted the request for 175 more hours of Mr. Assad’s time. From the arguments made yesterday, I feel this is in line with what was presented by both parties (see yesterday’s post for the details and context).
The Hearings: Tu Quoque
Tu Quoque (“you also”, in Latin), or as we sometimes say on the homestead “that’s the pot calling the kettle black”, means “a person is guilty of the very thing of which they accuse another”. This doctrine was argued by the defense in trying to rationalize the alleged (more…)
I was scheduled to travel to Ft. Meade, Maryland, the week of Monday, 14 August 2017 to monitor pre-trial hearings in the Guantanamo Bay U.S. Military Commission case against an alleged high-level al Qaeda member. The hearings were to be broadcast via-closed circuit television (CCTV) from Cuba to the Ft. Meade army base, where I have monitored hearings in all the active Guantanamo Bay cases. The U.S. government has stated that Guantanamo Bay (a/k/a Gitmo) proceedings should be open and transparent, and that CCTV broadcasts to Ft. Meade promote openness and transparency.
I was informed that the military judge in charge of the case has reversed an earlier ruling, and has now prohibited this week’s proceedings from being broadcast to Ft. Meade. His new ruling apparently permits 5 monitors who traveled to Guantanamo this weekend to observe / monitor the hearings while sitting in the spectator section of the Guantanamo courtroom. However, monitors such as myself who planned to observe from Ft. Meade are effectively banned from observing this week’s proceedings.
