General Mark Martins

Observations from Ft. Meade: Monitoring al Nashiri’s Guantanamo Bay pre-trial hearing

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.

20161019_130554

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

Mr. Martin

lcdr-pollio

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

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

 

Traveling to Guantanamo Bay for Hadi War Crimes Hearings

AbdulHadiRFJ

Hadi al-Iraqi

I’m scheduled to fly to Guantanamo Bay, Cuba on Monday, 16 May 2016, as a non-governmental organization (NGO) observer of proceedings in the U.S. Military Commission case against detainee Hadi al Iraqi.

Hadi is a high-value detainee who is an alleged high-ranking member of al Qaeda who served as liaison between al Qaeda in Iraq and the Taliban. He is charged under the Military Commissions Act with a series of war crimes, including attacking protected property, perfidy / treachery, denying quarter, and targeting noncombatants such as medical workers and civilians. Among other things, he is alleged to have helped the Taliban blow up the monument-sized Bamiyan Valley Buddha Statues, which were a UNESCO World Heritage site.

Hadi was officially charged in the equivalent of an arraignment in a Guantanamo Bay courtroom in June 2014. I happened to be present in the Guantanamo courtroom for that proceeding.

Unlike most of the other detainees currently facing trial, Hadi is facing a maximum sentence of life imprisonment, rather than a death sentence faced by, for example, the five men charged with masterminding the 9/11 attacks on the World Trade Center and the Pentagon.

Delays

For the last 2 years, since formal charging, Hadi’s pre-trial hearings that have been plagued with disruptions related to, for example, conflict of interest issues, and his “releasing” his counsel.

Recently, Hadi’s defense counsel made a motion to continue (postpone) the 17 – 18 May hearings. The Military Commission website (mc.mil) indicates that the Military Judge has ruled on this motion to continue, but the contents of the ruling have not yet been posted because the ruling must be cleared before posting for public view. Apparently the Judge denied the motion, as all systems appear to be go for the proceedings this week.

Two Days of Hearings Scheduled for This Week

My flight to Guantanamo is set to leave from Andrews Air Force Base, just outside of Washington, DC. I’m due at Andrews at 6:00 a.m. on Monday the 16th, along with defense counsel, the prosecution, the judge and the court staff, the media, other NGOs, and others associated with the case against Hadi. We are all set to fly on the same plane.

We travel down on Monday, get situated, with court scheduled to begin Tuesday morning and run through Wednesday. Then, everyone who flew down to Guantanamo on Monday gets back on a plane to fly back to Andrews.

Unfortunately, details of the nature of the 2 days of hearings are not readily available to observers such as myself, since many of the motion papers are not released yet. At times it takes many days for unclassified motion papers to be made available for public view on the Military Commission website.

Papers that were recently filed that may perhaps be covered on Tuesday and Wednesday include a Trial Counsel Detailing Memorandum (filed 13 May 2016), a Supplemental Defense Notice to Commission IAW Order (filed 27 April 2016), and the Defense Notice of Excusal of Detailed Defense Counsel (filed 20 April 2016). All of these papers are listed on the website, but the contents of these papers have not been made available for public view.

Brigadier General Mark Martins, who is the U.S. Military Commission’s Chief Prosecutor, is typically great about briefing NGOs upon arrival at Guantanamo Bay. papers. That will be very helpful, particularly for Observers who are not familiar with intricacies of each Guantanamo Bay case.

More to come

Please stay tuned for more reports from Guantanamo Bay. Among other things, I plan to talk about the Guantanamo Bay Fair Trial Manual, produced by the Guantanamo Bay Military Commission Observation Project of the Indiana University McKinney School of Law, and share information about the 6 other NGO representatives scheduled to observe this week’s proceedings with me. I will also talk about my new book, The Guantanamo Bay Reader.

George Edwards (Washington, DC)

The Club No One Wants to Join

At the end of each week of the 9/11 hearings, there are a series of concluding media briefings at which the defense teams, the prosecution, and the families of the 9/11 victims speak to the members of the press who are present in Guantanamo Bay. This week the members of the media included representatives from news outlets, including among others, Associated Press, BreitBart News,  BuzzFeed, and Law DragonCarol Rosenberg of the Miami Herald was present as well and is the only reporter that has attended all of the Military Commission hearings. The NGO Observers are not allowed to attend these press briefings but are allowed to view them via a live stream in the NGO Office Lounge.

After Walter RuizJames Connell III, and David Nevin, defense attorneys, and Chief Prosecutor Brigadier General Mark Martins spoke, four of the Victims’ Family Members chose to speak to the media. It was apparent from their statements that each is on an individual journey.

Phyllis Rodriguez spoke first. Her 31-year-old son Greg died in the attacks on the World Trade Center. She started by saying she was a 9/11 victim’s family member and as such she was a member of a “club no one wants to join.” Phyllis then went on to say that she had always opposed the death penalty, but that her conviction had not been tested before 9/11.

Four days after the 9/11 attacks she and her husband Orlando Rodriguez wrote an open letter, “Not In Our Son’s Name,”calling on President Bush not to resort to a military retaliation against Afghanistan. The print version is here. As a result of the letter circulating on the internet along with several others by victims’ family members calling for non-violent solutions, they met others who held similar beliefs. From these connections, the non-profit September 11th Families for Peaceful Tomorrows was formed on February 14, 2002.

The organization’s mission is stated on its website as follows: “an organization founded by family members of those killed on September 11th who have united to turn our grief into action for peace. By developing and advocating nonviolent options and actions in the pursuit of justice, we hope to break the cycles of violence engendered by war and terrorism. Acknowledging our common experience with all people affected by violence throughout the world, we work to create a safer and more peaceful world for everyone.” (Peaceful Tomorrows website). The organization has received numerous awards, including a Nobel Peace Prize nomination in 2004.

In 2015 film maker Gayla Jamison produced and directed a documentary about the ongoing reconcilation work of Phyllis and Orlando Rodriguez. The film is entitled In Our Son’s Name.

DSC_0257

Phyllis Rodriguez and her daughter Julia. (Guantanamo Bay Ferry)

The press briefings are recorded and the video posted on the Military Commission site for public viewing. The December 11, 2015 briefing will be posted shortly.  The words and stories of all the Victims’ Family Members are powerful reminders of the importance of making sure that the defendants are afforded fair and just proceedings by the Military Commission.
DSC_0247

Sunrise at Guantanamo Bay, awaiting ferry to the base airport.

By: Catherine A. Lemmer, 9/11 Hearings, Guantanamo Bay, 11 December 2015.

USS Cole Case Day 1 Wrap Up: Guantanamo Bay

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

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

Touch Down at GTMO

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

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

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

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

Courtroom Tour

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

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

Court Session Begins – Victims & Family Join

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

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

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

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

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

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

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

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

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

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

More Motions

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

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

Meeting with Chief Prosecutor General Martins

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

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

Meeting Carol Rosenberg

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

Tuesday’s Court Schedule

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

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

Alleged Unlawful Influence Over Guantanamo Bay Judges

Judge Vance Spath presides over the al Nashiri case.  He is hearing arguments on whether Pentagon officials exercised "unlawful interference" over him. (Photo from Miami Herald)

Judge Vance Spath presides over the al Nashiri case. He is hearing arguments on whether Pentagon officials exercised “unlawful interference” over him. (Photo from Miami Herald)

In Monday afternoon’s court session in the Guantanamo case involving the alleged mastermind of the 2000 USS Cole suicide bombing case, the defense claimed that Pentagon officials were interfering with the judge’s independence, threatening to undermine the entire case. The judge, Air Force Col. Vance Spath, is conducting further inquiry before determining whether unlawful interference exists, and if it does, what the remedy should be.

The defendant, al Nashiri, was arraigned several years ago, and there have been many delays in this death penalty case. The officials stated in e-mails and other communications that they wanted the case to move more quickly, and one official signed an order commanding the judge to change from part-time to full-time on the case, and to physically relocate to Guantanamo Bay until the case was finished, which could be many months or years.

The defense argued that only the judge controls the pace of the trial, and it is “unlawful interference” for a non-judicial official to seek to interfere with a judge’s command of his courtroom.

Most participants commute to Guantanamo Bay

Virtually all participants in the Guantanamo Bay cases live in the U.S. mainland, and commute to Guantanamo Bay for hearings. This includes the defense and prosecution lawyers, the court staff, the press and the NGO Observers, and the interpreters. The judges in this and the other two active cases are the only ones ordered to move to Guantanamo Bay. The chief prosecutor, who is a Brigadier General Mark Martins, was not ordered to move to Guantanamo, and neither were other military officers assigned to work on the cases.

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

Retired Major General Vaughn Ary

Stalled hearings

Judge Spath halted the hearings mid-afternoon after ordering the Pentagon official who made the order to testify about the order. That official, called the Convening Authority for the military commissions, is Retired Major General Vaughn A. Ary. Judge Spath said General Ary could fly to Guantanamo Bay to testify, or he could testify by video. His testimony is expected as early as tomorrow, Tuesday, 24 February 2015.

What is “unlawful interference” with the judge.

The Guantanamo Bay Fair Trial Manual discusses law related to “unlawful interference”, and the independence of judges, and identifies a checklist of questions to ask in seeking to determine whether judges’ independence has been compromised. Under international and domestic U.S. law, judges are required to be independent, and are required to appear to be independent. Outside, objective observers should be able to view a judge and his decisions and not be concerned about whether some outside, non-judicial entity is “pulling the strings” or exercising unlawful command authority over the judge.

All stakeholders in the Military Commissions have rights and interests. This includes not only the defense, which clearly has rights, but also includes the prosecution, the victims and their families, the media, NGO Observers, court personnel, security guards, and others. The Guantanamo Bay Fair Trial Manual outlines many of these rights and interests.

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

Last Hearing Option Cancelled – Listening to Both Sides: First Up the Prosecution

The NGO observers had a sliver of hope that we would see actual court proceedings when we learned on Sunday that Walter Ruiz, attorney for Mustafa al Hawsawi one of  9-11 detainees, had filed a motion for a hearing to obtain medical care for his client. The motion alleged that Mr. al Hawsawi was thrown to the ground and shackled on December 7 due to a misunderstanding as to whether he was to return to his cell or to the recreation area. However the Judge (Army Col. James L. Pohl) denied the request. The next hearings for the 9-11 detainees are docketed for February 9.

Given the lack of court proceedings, the NGO observers pushed for meetings with the defense and prosecution teams. The meeting were scheduled around the various 802 conferences and client meetings.

BG_Mark_Martins

Brigadier General Mark S. Martins

We met first with Brigadier General Mark S. Martins, the chief prosecutor, and three members of his team. Prior to the meeting we were provided with his 13 December 2014 prepared remarks. The prepared remarks addressed the release of the Torture Report. It was Brigadier General Martins’ opinion that the Torture Report will not disrupt or derail the Military Commission process. Rather, the release of previously classified information will speed discovery for the defense. He reiterated in his prepared remarks that the prosecution will not introduce as evidence statements obtained through torture.

Brigadier General Martins began the session by introducing his staff and referring us to his prepared comments. He noted that he would not discuss the female guard issue nor the FBI conflict-of-interest issue; the latter because he had walled himself off from this issue. He then went on to answer our questions and provide information.

As in his prepared remarks, Brigadier General Martins discussed the prosecutions’s intent not to use evidence obtained through torture. He noted that it is imperative that the people see the government’s case. This is not possible if the prosecution uses classified information. Ironically, his intent doesn’t seem to be shared by some other powers in the government — for example, those entities fighting the release of the remaining torture materials. (more…)

MCOP Observer Returns from Guantanamo Bay – Hattie Harman

NGO Observers with General Martins.  From left: Abburi Harshavardhan (Univ. of Toledo law student), Robert Kerrigan (Human Rights First), Gina Moon (American Bar Assoc.), Emily Finsterwald (U. of New Mexico law student), Sean Murphy (Duke Univ. law student), Adam Adler (Yale law student/Nat'l Institute for Military Justice), General Mark Martins, Anna Kent (Georgetown Univ. law student), Eva Nudd (NYC Bar Assoc.), Charles Gillig (Pacific Council on Int'l Policy), Justin McCarthy (Judicial Watch), Hattie Harman (Indiana Univ. Law School MCOP), Bendan Kelly (Nat'l District Attorneys Assoc.), Ghalib Mahmoud (Seton Hall Law School)

NGO Observers with General Martins. From left: Abburi Harshavardhan (Univ. of Toledo law student), Robert Kerrigan (Human Rights First), Gina Moon (American Bar Assoc.), Emily Finsterwald (U. of New Mexico law student), Sean Murphy (Duke Univ. law student), Adam Adler (Yale law student/Nat’l Institute for Military Justice), General Mark Martins, Anna Kent (Georgetown Univ. law student), Eva Nudd (NYC Bar Assoc.), Charles Gillig (Pacific Council on Int’l Policy), Justin McCarthy (Judicial Watch), Hattie Harman (Indiana Univ. Law School MCOP), Brendan Kelly (Nat’l District Attorneys Assoc.), Ghalib Mahmoud (Seton Hall law student)

As part of a group of non-governmental organization (NGO) observers from across the United States, I spent the past five days, November 16-20, at the U.S. Naval Station in Guantanamo Bay, Cuba (GTMO). My mission as an NGO observer was to attend, observe, analyze, critique, and report on the week’s pretrial proceedings in the government’s case against Abd al Hadi al-Iraqi. Hadi is accused of several crimes arising out of his alleged role as an al Qaeda commander in Afghanistan during the post-9/11 period. I returned home late last night (Thursday, Nov. 20) to Indianapolis via Andrews Air Force Base.

Wonderful  Hosts

I cannot say enough about the wonderful reception the NGOs received from everyone we came into contact with at GTMO. All of them — including General Mark Martins and his staff, Hadi al-Iraqi’s defense team, our NGO escorts Mark Gordon and Darryl Roberson, the numerous members of the JTF Public Affairs Office, and many more — were exceptionally gracious and accommodating of our questions and requests to see and learn as much as possible about GTMO and the Commissions during our trip.  (more…)

Meeting with Chief Prosecutor – Part II – Wednesday

The NGO Lounge at GITMO where NGO's have a place to work (without Wi Fi though)

The “NGO Lounge” at GITMO where NGO’s have a place to work (without Wi Fi though)

More on the NGO meeting with the Chief Prosecutor General Martins

To conclude a summary of our meeting with General Martins, Chief Prosecutor for the Military Commissions, here are several other topics we discussed in our meeting:

No Miranda warnings required

• One of the primary differences with the Military Commissions and traditional Article III Courts are the different standards regarding Miranda Rights and the admission of hearsay evidence. Generally the standards for admission of hearsay evidence and evidence gathered without first issuing a Miranda warning is less strict. Gen. Martins stressed that due to the nature of the environment where the evidence is collected (often in a theatre of war) there are not always trained law enforcement personnel available and therefore the standard should be different than in a traditional civilian law enforcement/Court setting. That being said, he reiterated that even though the standards may be “lower” there is still a threshold that must be met and not just anything can be admitted. There is still a need for the prosecution to prove that the evidence being proffered is reliable through a “totally of the circumstances” analysis and the defense has an opportunity to counter that through cross examination etc. which is all set forth in the MCA of 2009.

Timetable for al Nashiri trial

• One specific question from the group was when he thought the actual trial would begin for Al-Nashiri. Gen. Martins indicated that he anticipated that at the current pace and posture of the case, the trial could begin in the fall of 2015.

Evidence generated from “enhanced interrogation”?

• In addition, he also noted that for the government’s case it will use no testimony generated from any enhanced interrogation procedures.

Declassifying information

• Gen. Martins also indicated that the government is under an obligation to declassify as much information as possible under the MCROE 505 and that they have been striving to meet that obligation. He also pointed to the volume of materials and direct resources and documents from the proceedings that are available for anyone to ready and review on the internet, and that they strive to make the entire process extremely open and public as the MCA requires.

Listening device disguised as smoke detector in attorney / client meeting room; FBI investigating defense team members

Some of the aL-Nashiri hearing NGO Observers at a table outside our tents.  They stopped letting NGOs have wifi access at this location.

Some of the aL-Nashiri hearing NGO Observers at a table outside our tents. They stopped letting NGOs have wifi access at this location.

• In response to a question from the group, Gen. Martins discussed some of the particularly troublesome issue that some observers of the process have mentioned concerning the revelations of a listening device concealed in a smoke detector in a room where attorneys met and conferred with their clients at GITMO, as well as the FBI interviewing members of the defense team and having nondisclosure statements about the interviews so other members of the defense team would not know of the interviews occurring. The FBI issue is currently being litigated in the 911 case and Gen. Martins has walled himself off from that case so he wasn’t able to comment very much on that other to say that it was a legitimate issue from both sides and the judge is currently hearing arguments on it. Regarding the smoke detector issue, he indicated that the facts presented showed that the room was a multi-purpose room used for other detainee procedures where surveillance was necessary and the listening devices were not operative during the attorney client meetings.

ISIS / ISIL — Captured taken to GTMO?

• An additional question raised by the group concerned the current conflict with ISIS/ISIL in the middle-east and whether or not in the event any of their members were captured, would they potentially be transferred to GITMO to face a military commission. The General responded that it is an open question (and theoretical at this point) on how that would be handled. There are several issues associated with that question that all have to do with the limited jurisdiction of the military commissions based on the MCA of 2009. You would need to explore if they are affiliated with Al Qaeda, are they foreign nationals, are they unlawful enemy belligerents etc.

Future Updates

I will also be posting future updates from the subsequent day’s activities of this trip.

Hadi al Iraqi’s First Guantanamo Bay Pre-Trial Hearing – Jeff Papa

Jeff Papa at Camp Justice, holding Indiana folder.

Jeff Papa at Guantanamo Bay’s Camp Justice, before hearings opened today in the war crimes case against Hadi al Iraqi.

Hadi al Iraqi was arraigned at Guantanamo Bay on 18 June 2014 for war crimes allegedly perpetrated in Iraq and other countries when he was a senior member of al Qaeda Iraq and liaison with the Taliban.

Hadi’s first pre-trial hearing was set to begin today at 9:00 a.m., but was delayed until 1:30 p.m. The judge noted that in conference the previous afternoon, the defense had asked for a delay until 1:00 for Hadi to meet his new counsel, whom Hadi would have met for the first time.  Defense had then asked for an additional 30 minutes to accommodate prayers.

Hadi

Just before the hearing began, I could see Hadi and his defense team through the soundproof window that separates the inner courtroom from the public gallery, where the NGOs sit in assigned seats. In addition to myself, 8 other NGOs representatives were present for today’s (more…)

Hadi al Iraqi Hearing commences at GTMO – Jeff Papa

Jeff Papa at Camp Justice, holding Indiana folder.

Jeff Papa at Camp Justice, holding folder with an Indiana logo.

Jeff Papa reported that the Hadi al Iraqi hearing commenced today at 1330 (Monday, 15 September 2014). Due to erratic internet connections, he could not send in his commentary on the hearing. He was able to send this photo. He promises more later.

Gitmo NGO Observers With Chief Prosecutor General Mark Martins

Chief Prosecutor Gerneral Mark Martins and NGO Observers - GTMO - 16 June 2014

Left to right: Professor Andrew Clapham, Mr. Jason Aldrich (Judicial Watch), Mr. Mark Sorsaia, Professor George Edwards (Founder, The Gitmo Observer), Brigadier General Mark Martins (Military Commissions Chief Prosecutor), Ms. Kate Rocco (Cravath, Swaine & Moore), Mr. Evan Matheney, Lt. Col. Dru Brenner-Beck (Ret.), Dr. Jerry Green.

Guantanamo Bay Military Commissions Chief Prosecutor Brigadier General Mark Martins met with 8 NGO Observers who traveled to Guantanamo Bay for hearings in the 9-11 case and for the arraignment in the case against Abd al Hadi al-Iraqi. These proceedings occurred at Gitmo during the week of 16 – 20 June 2014. At the meeting with the NGOs, General Martins discussed a wide range of issues related to the Military Commissions, including the range of charges brought against various accused, the suitability of these cases being tried at Guantanamo Bay (more…)

Al Nashiri Hearings – August 5 2014 – GTMO – Qifan Wang

Today’s hearing starts at approximately the same time as yesterday. Again, the court staff checks with the interpreter during preparation.

Judge’s Comments

The first thing in the morning is Judge Spath commenting on AE305. He agrees that he would be the one ruling on the open motions. While he is going to do it on existing records, without extra hearings, unless the records are not enough to give a ruling. Then he mentions that the defense may file motions for reconsideration if there is any new fact occurrs. Next he comments on the resource issue discussed yesterday. Since there is no motion for that particularly, Judge Spath notices the defense that if they fail to get assistance from the Convening Authority, they may file motions to request in the court and the court would issue orders if necessary.

AE278 – Protocol for the Procedure of Execution

Then we move on to AE278, the defense’s motion to compel the Secretary of Defense to  publish protocol for the procedure of execution. Recognizing the case is still in constructive/evidentiary phase, Mr. Kammen focuses on the impact of protocol upon the jury. He mentions that the jurors are military members, and ‘killing people is part of the bill’ for them. Thus it is highly possible that the way of execution, rather than execution itself would be determinative to the jurors’ decision. If the way is cruel, the jurors may consider that ‘this is not the right way since we are not in battlefield’. Besides, Mr. Kammen argues that it is not rare that the rules are changing all the time. He mentions the security policy regarding cuff links again. Thus to get a settled protocol in writing, a court order would be necessary. On the other side, the government argues that the protocol is a matter of law, and not a mitigation element (not unique to the defendant). Thus it is not appropriate to talk about it to the commission members. Also, if the defendant is found guilty and subject to execution, that would be years later. It is not ripe to discuss this issue at this point. The discussion for this motion does not last long. 

AE279 – Additional Funding for Mitigation Investigator

Next motion is AE279, resource again. The defense is requesting additional funding for a mitigation investigator Mr. Assed to continue his work in Saudi Arabia, communicating with Mr. al Nashiri’s family and neighborhood. As the only person speaks Arabic and is Muslim (only Muslims can travel in Mecca, the home city of Mr. al Nashiri), Mr. Assed’s participation is essential for the mitigation investigation. The defense establishes their argument based on the cultural background, the language barrier, the social atmosphere in Saudi Arabia and argues that the additional 175 hours of work is necessary. Dealing with the fact that Mr. Assed has already been working on this issue for 400 hours, defense mentions that it’s not enough to a large extent due to the lack of proper resource. For example, their request for a female interpreter has been denied, thus they have to go on the trip without one, and later make another travel in order to fulfill the purpose. The government argues that it’s already 400 hours spent on one single person, and the resource provided to the mitigation team is considerable. Besides, the specifities provided by the defense is not enough to articulate the actual needs. It is noticeable that Judge Spath interrupts the government’s counsel several times, mentioning that this is related to the direct communication with defendant’s family. I think that Judge Spath is more with the defense for this motion. At the very end, he comments that since it’s a capital case, there will be more cost incurred. If the government chooses to go for it, those costs have to be accepted. I would not be surprised that Judge Spath rules for the defense. Again, I’m not able to assess the allocation of resource from a comprehensive point of view. But that female interpreter example is impressive. At least in that circumstance, it is indeed a difficult situation the defense is facing.

Classified Information

The next two motions, AE280 and AE281 all deal with classified information. In AE280, the defense is requesting the government to provide more specific markings in the classified document summaries, indicating what is classified and what is not, rather than marking the whole document as classified. The government argues that there is no legal authority to impose this duty, either in the DoD Mannual or in the Executive Order. And as a practical matter, if there is any inconsistency regarding the classification level between the summaries and the subsequent materials, a lot of more litigations will be followed. In AE281, the defense is requesting a guidance of how to handle those classified information to the defendant, Mr. al Nashiri himself. The defense concerns that without a clear and stable secrecy policy dealing with Mr. al Nashiri getting access to the classified information, it is practically difficult to predict what kind of behavior would be considered as leaking information. For example, what if Mr. al Nashiri goes back to his cell and tell other people about the information? In fact, no documents or agreement is for him to sign relating with his security clearance. The government argues that it has been confirmed that Mr. al Nashiri can use the summaries, and other materials. There should be no worries from the defense.

I could see that it’s a matter of trust at issue here again. The defense feels insecure and untrusted, that the government may use any behavior to preclude an defense attorney, to continue detaining Mr. al Nashiri and to impose negative impact upon the defense. Thus they are trying to get as much clear policy or guideline as possible, to ensure that they are complying with everything. In my view this concern is not unreasonable in circumstance. While the production for such document or policy is determined by the OCA, which is not subject to the direction from the government. Thus it is another thing we never know whether the defendant can get or not.

AE283 – Admissibility of Evidence

In the afternoon, the first motion is AE283. The government is requesting a hearing to determine the admissibility of photograph and video taken near the site of bombing as evidence. The defense is not objecting for such hearing, while emphasis that the government must establish solid ground for the admissibility. Being less complex, the discussion of this motion does not last long.

Yemen Friendship Agreement

Next, the court moves on to AE285 and AE306. These two motions are filed by the defense, arguing that applying MCA to Mr. al Nashiri (holding dual citizenship of Saudi Arabia and Yemen) violates the Yemen Friendship Agreement. Under the agreement, Mr. al Nashiri as a citizen of Yemen shall enjoy the full protection of laws and authorities of United States, according to the defense. The Yemen Friendship Agreement is a treaty and shall be the law of the land under the Supremacy Clause of the Constitution. And the Congress cannot pass law (MCA in this circumstance) to alter or limit it. Also, United States is exercising de facto control of Guantanamo Bay, thus the Constitution applies geographically. As for MCA, it limits several fundamental rights and only applies to non citizens. Thus, applying MCA to the defendant constitutes a violation of the Agreement. Judge Spath raises the question that is the Agreement made with a consideration, or applicable to the enemy combatants. In my view this is a question of whether there has been a fundamental change of circumstance which may invalidate the treaty in certain circumstance. Defense counsel argues that the Agreement is reaffirmed in 2004, and if then the President want to change or limit it, he should have done so. The government cites several prior motions and argues that this issue has been discussed. And the law controlling and protecting Mr. al Nashiri is MCA. Besides, the Agreement itself, as an international treaty, does not create private right, or private cause of action.

In fact I have been expecting more robust arguments for this motion. While the defense to some extent focuses on the different treatment Mr. al Nashiri is receiving, rather than bouncing back to the treaty law rebuttal the government made. Noticeably, this motion is one of those the defense trying to make constitutional challenges and get rid of MCA as a whole, followed by AE295 and AE296 – 301.

Constitutional Arguments

AE295 challenges MCA’s constitutionality base on its selective targets towards Muslim. The government rebuts that it is not the case.  MCA deals with those who violate the law of war. And it’s not targeting any religion particularly. Thus it is facially neutral. AE296 – 301 raises the ex post facto argument that the statute of limitation, which is five years, provided by Article 43 of the Uniform Code of Military Justice has passed, thus all the charges against Mr. al Nashiri shall be dropped. The government argues that MCA does not provide a statute of limitation, and the provision of UCMJ does not automatically apply. In addition, having no statute of limitation is consistent to the international criminal law practice.

These two sets of motions, especially the ex post facto arguments, are significantly shorter than I have expected.  These questions touch the basis of legacy/constitutionality of the MCA, as the controlling legal instrument here. Ironically, these motions seem to be less developed comparing with others. Maybe it is just acknowledged that these motions are less likely to work in the Military Commission anyway.

The court recesses. Tomorrow morning would be the end of this weeks’ hearings.