Gitmo Observer

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

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

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

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

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

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

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

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

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

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Yemeni Detainee asks Obama Administration to release him from Guantanamo

gtmo-prb-6-december-2016-mohammad-ahmad-abdallah-al-ansi

al Ansi in a Department of Defense photo.

Today, after 14 years imprisonment at Guantanamo Bay, Cuba, a Yemeni detainee named Mohammad Ahmad Abdallah al Ansi asked the U.S. Government to transfer him from Cuba to a third country. If released, 58 detainees would remain at Guantanamo, down from a record high of 780 detainees.

This parole board like hearing is called a Periodic Review Board (PRB), and was convened pursuant to President Obama’s 2011 Executive Order calling for PRBs to ascertain whether detainees pose a continuing threat to the national security of the U.S. If a detainee does not pose such a threat, he may be repatriated to his home country or transferred to a third country. It is unknown whether the next President will rescind this Executive Order and cease Period Reviews, and whether any of the 5 dozen remaining detainees will be released after January 2017.

President Obama’s 2011 Executive Order calls for three types of PRBs: (a) an Initial PRB for all detainees, involving a hearing at which the detainee may appear and speak on his own behalf; (b) a file PRB, held 6 months after a detainee is denied release following an initial PRB and which detainees are prohibited from attending; and (c) a full PRB, held if after a file review the Board finds that the detainee is a “continuing” risk to US national security.

Al Ansi, who is also known as prisoner number YM – 029, had his initial PRB in February 2016, a file PRB in September 2016, and a full PRB today. This article discusses the initial, file and full reviews.

al Ansi’s initial PRB

At al Ansi’s initial PRB on 23 February 2016, he appeared in person. On 23 March 2016, a month after the initial PRB, the Board made its final determination as follows:

The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States.

In making this determination, the Board considered the significant derogatory information regarding the detainee’s past activities in Afghanistan. Further, the Board noted the detainee’s lack of candor resulting in an inability to assess the detainee’s credibility and therefore his future intentions.

The Board looks forward to reviewing the detainee’s file in six months and encourages the detainee to continue to be compliant, continue taking advantage of educational opportunities and continue working with the doctors to maintain his health. The Board encourages the detainee to be increasingly forthcoming in communications with the Board.

al Ansi’s file review PRB

After his initial PRB, al Ansi had a file review PRB, which he was not permitted to appear, with a Board determination based only on his written “file”. His file review was held on 13 or 14 September 2016 (according to http://www.prs.mil), and on 14 September 2016 (according to the written file review final determination) the Board ruled as follows:

MEMORANDUM FOR THE RECORD

SUBJECT: Periodic Review Board File Review – Muhammad Ahmad Abdalla al-Ansi (YM- 029)

On 14 September 2016, the PRB conducted a file review for Muhammad Ahmad Abdalla al Ansi (YM-029) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.” The PRB previously conducted a full review of the detainee and on 23 March 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States. After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.0. 13567.

I watched al Ansi’s PRB broadcast live from Guantanamo Bay into a nondescript Pentagon conference room this morning, with a handful of human rights advocates and one member of the media.

al Ansi’s Full PRB

Today’s PRB (6 December 2016) as Ansi had a “full” PRB review.

Today’s full PRB, like all the other PRBs, was held at Guantanamo Bay. Today’s session was broadcast by live close circuit TV (CCTV) to a secure location at the Pentagon for viewing by non-governmental organizations and the media.

I observed the hearing in a modest Pentagon conference room, joined by representatives of non-governmental organizations (Judicial Watch, Heritage Foundation, ACLU, and Human Rights First) and the media (Courthouse News). When we watched these proceedings piped in from Guantanamo, we also had 2 to 3 military or civilian escorts or technicians in the room with us, but I will not reveal further information about the identities, ranks or affiliations of these individuals (all of whom are always very friendly and nice!).

Members of the PRB Board – which comprises one representative each from the Departments of Homeland Security, State, Justice and Defense; the Joint Chiefs of Staff; and the Office of the Director of National Security – were not physically at Guantanamo Bay, but watched the proceedings from the D.C. area, presumably from their respective offices.

It is unclear when the Board is expected to make a final determination on this full PRB, and whether that determination will be made before the Obama Administration ends on 20 January 2017.

Some of the words spoken during the hearing were in Arabic, and were spoken by an on-camera interpreter.

An off camera voice, presumably from but not necessarily from Guantanamo, advised in English on the nature of the hearing, the format, and the short agenda.

Another off camera voice read aloud the government’s “unclassified summary statement”, in English, of behavior that al Ansi allegedly engaged in, both before he arrived at Guantanamo and after he arrived.

After the government’s unclassified summary statement, the personal representative read an opening statement in English.

Then, al Ansi’s private counsel read a statement, also in English.

After the statements, an off camera voice asked if anyone had any questions. There were none.

The unclassified portion of hearing ended roughly 15 minutes after it started. Observers were invited to leave the conference room, since Observers are not permitted to observe classified portions of the PRB hearings.

Who is Mohammad Ahmad Abdallah al Ansi?

He is 40 or 41 years of age, born in Yemen. The government paints a picture of him as an avowed war criminal member of al Qaeda, as being loyal to Osama bin Laden, and as a person slated for an aborted hijacking in Asia meant to coincide with 9/11. The government has kept al Ansi in prison at Guantanamo Bay for over 14 years, and has on multiple occasions affirmatively ruled that he posed a threat to the national security of the U.S. Indeed, this same PRB ruled twice this year (February and September 2016) that al Ansi should not be released.

al Ansi’s personal representative and private counsel painted a different picture of al Ansi. The private counsel spoke about al Ansi’s suitability for release, and what he might do constructively upon release. Though the personal representative did not directly speak to the issue of whether he thought al Ansi posed a continuing threat to U.S. national security, the personal representative did not speak against release.

Today’s hearing itself

Today’s full PRB hearing commenced about 9:06 and ended 15 minutes later at about 9:21.

al Ansi sat at the head of a small white rectangular table that appeared to be in a Guantanamo Bay “trailer” (and not in a Guantanamo Bay courtroom). On the long side of the table to his left sat his personal representative in a U.S. military uniform. Directly across from him, to al Ansi right, sat the linguist. Next to the linguist was the private counsel, sitting closest to the camera.

Throughout much of the hearing, al Ansi, who was dressed in white non-descript attire, sat with his elbows resting on the table, hunched a little forward, flipping through documents in front of him, possibly reading through the documents. It was impossible for us to see on the screen what the nature was of the pages in front of al Ansi, or in what language the pages were written. At times he would rest his forearms on the table, with his hand clasped, eyes cast downward.

Government’s unclassified statement

An off-camera woman’s voice read aloud the Government’s “unclassified statement” in which the Pentagon contended that al-Ansi

traveled to Afghanistan in 1999, where he joined al-Qa’ida, swore bayat to Usama Bin Ladin, and served as Bin Ladin’s bodyguard. Judging from other detainee statements and corroborating information [al-Ansi] may have been selected to participate in an aborted hijacking plot in Asia intended to coincide with the 9/11 attacks. He was captured by Pakistani authorities after the battle of Tora Bora in 2001. [al-Ansi] has been mostly compliant with the detention staff at Guantanamo, and his last disciplinary infraction was in June 2014. He has not expressed support for extremist causes or maintained contact with terrorists at large.”

Private Counsel Arguments supporting al Ansi’s request for transfer

al-Ansi’s was represented at this PRB by private counsel Beth Jacob who is a partner at the New York law firm Kelley Drye & Warren, where she represents generic pharmaceutical companies. Before she joined Kelley Drye & Warren, she represented the Port Authority of New York & New Jersey in litigation arising out of the 9/11 attacks, representing 9/11 victims who sought compensation. She had previously been an assistant district attorney i n New York, prosecuting fraud and official corruption.

She only began representing al Ansi since after his initial PRB ruling finding that he continued to pose a threat to national security of the United States.

She pointed out that al Ansi showed her some of the artwork created at Guantanamo Bay, and she showed it to a New York-based artist, who “was struck by his ability and innate talent , as she has written in her letter to this Board”.

In arguing that al Ansi should be released from Guantanamo Bay, she noted that the New York artist and Reprieve said that. “Mr. al Ansi’s art will stand him in good stead if he is deemed transferrable” for several reasons, including: (a) ‘it will give him something to do and a means of expression, in the first days and weeks after his transfer”; (b) “he will be part of the community of artists, which will provide stability and social contacts; and (c) “there i s the possibility of earnings from his art.” She went further to state that “Mr. al Ansi is planning for more practical ways to make a living – he told me he would like a construction job, and among the many classes that he is taking here at GTMO is one about small business.”

In support of her arguments supporting al Ansi’s transfer, his private counsel argued that his: “family still has resources which they are completely willing to use to help their brother start a new life after Guantanamo , as shown by the statements the family submitted to the first board and this panel. His family will be a stabilizing force when he is transferred.

Further, she argued that his health situation supported transfer, though the details of his health situation were not revealed, as a portion of her letter was redacted. She wrote:

The second factor [supporting transfer] is his health. [Redacted] [Redacted] [Redacted] [Redacted] He knows that managing these chronic conditions takes much time, effort and attention, and that he must follow a strict diet and exercise regimen , in addition to his medications.

She argued that if released, he will also have support of the Carter Center, founded by President Carter, and Reprieve’s Life After Guantanamo project, which has helped over three dozen former detainees.

Personal Representative Statement

al Ansi’s personal representative, who was a military officer in fatigues, read a simple, prepared 1-page statement that noted that

al-Ansi has intensely participated in the PRB process”, has “maintained a record of perfect attendance for meetings with his Personal Representative (PR) and Private Counsel (PC) despite the constant change in schedulling”, and that his “professional manner throughout all engagements with his PC and PR has not wavered.

The personal representative noted that:

He continues to enthusiastically maintain his compliant behavior with the Joint Task Force (JTF) Guard Force and continues to engage with the JTF Medical Staff in order to deal with chronic health issues. In addition, Mr. Al-Ansi has not ceased to passionately take advantage of the educational opportunities to include courses in Mathematics , Science, English, Spanish, Life Skills, Computers, Art, and recently started the Arab British Academy for higher education studies. Since July of 2016, he has created an additional 150 quality works of art. Seven additional works of art are included in his case submission. Recently, he has enrolled i n Small Project Management , Business Administration, Accounting and Ledgers classes.

Unlike other personal representatives in other cases, this Personal Representative did not say whether or not he believed that al Ansi is or is not a threat to the security of the United States”.

By George Edwards,

Professor of Law, Indiana University McKinney School of Law

Faculty Director (Founding), Guantanamo Bay Periodic Review Board (PRB) Project

Faculty Director (Founding), U.S. Military Commission Observation Project

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

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

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

Well, let me start from the beginning…

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

fagundes-aline

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

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

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

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

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

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

Logistics of the mission to Guantanamo Bay

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

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

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

Guantanamo Bay Fair Trial Manual

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

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

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

Aline Fagundes (LL.M. Candidate, ’17)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

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

Guantanamo Bay Hearing for USS Cole Bombing Suspect

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

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

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

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

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

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

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

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

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

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

Courts’ jurisdiction

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

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

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

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

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

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

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

al Nashiri

Pre-trial Issues in his case

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

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

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

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

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

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

At Camp X-Ray, Guantanamo Bay — George Edwards

My four 2016 summer trips to Cuba

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

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

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

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

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

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

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

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

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

NBA law professors at Cuban lawyers collective.

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

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

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

Docketing Order – Motions on the schedule to be heard

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

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

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

At the Ft. Meade Commissary.

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

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

My trip to Maryland – Sunday

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

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

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

Closed hearing – Monday morning

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

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

What we did at Ft. Meade – hurdles & highlights

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

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

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

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

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

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

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

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

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 14^th, in which a Libyan detainee asked the Board to send him back to Libya or to a third country for resettlement. That PRB observation is through the IU McKinney Periodic Review Board Project.

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

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

Another shot in front of the Post Theater

Conclusion

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

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

By Andrew (Andy) Klein

Dean & Beam Professor of Law

Indiana University McKinney School of Law

Posted by George Edwards on behalf of Dean Klein

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Libyan Detainee Requests Release from Guantanamo

GTMO - ismael-ali-farag-al-bakush - ISN 708 -- 1

Ismael Ali Faraj Ali Bakush, Guantanamo Prision # ISN 708, asked Board to release him

This morning, Ismael Ali Faraj Ali Bakush (ISN 708), who is a Guantanamo Bay detainee from Libya, pleaded to a group of U.S. officials that he is not a threat to U.S. national security, and he should be repatriated to Libya or resettled in a 3^rd country. Bakush is around 47 or 48 years of age, and has been held at Guantanamo Bay for a month shy of 14 years. Today he argued for his freedom from the prison, where he has lived for almost a third of his life.

This hearing, which is called a Periodic Review Board (PRB), was conducted pursuant to a 2011 Executive Order which has required most detainees to have a “periodic review” of their detention status. Though Bakush has had similar reviews under now defunct processes, this is 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.

PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings.

Getting to the PRB hearing; the other observers

Bakush’s initial review today was likely similar to the 55 or so initial reviews held since the 2011 Executive Order was implemented in 2013. Today’s PRB was my first, having multiple times been denied permission to observe. I had some sense of what to expect, having read reports from media and non-media representatives who had viewed earlier PRBs, but I also believe that the more qualified people who observe the proceedings first hand, the greater the transparency.

I was up early to take the Metro from DC to the Pentagon, which is where PRB observation takes place now, rather than its earlier viewing location at a Virginia building near the Pentagon. It was suggested that we arrive at the Pentagon not long after 7:00 a.m., to be certain that all security and other formalities would be completed so we could adjourn to a special conference room before the 9:00 scheduled PRB start.

When I was at the Pentagon a few months ago, the new Visitor Entrance was under construction, and it was cramped and unwieldy to gain access to the mammoth facility. The new Visitor Entrance is markedly updated and spacious, with significantly more x-ray machines and other security measures in place. Though no clear signage instructed visitors to the appropriate queues (e.g., no sign for the uniformed military personnel line or the “other” line), it was still quite easy and quick to be processed – at least at that hour on a Thursday morning.

After clearing security, I entered into the Visitor Waiting Area (after another guard made certain that I still had the Visitors Badge that had been handed to me just a few yards before I passed through the airport-like metal detectors), where I was soon joined by what appeared to be contractors, uniformed military personnel, a high school group, an ROTC group, a group of dozens of Japanese military personnel clad in crisp white uniforms, and others – waiting to be escorted into the Pentagon proper.

Two representatives from the Periodic Review Secretariat (PRS) came to collect the 5 non-media observers, and we all processed into the main complex and walked down multiple hallways in the Pentagon maze. Though I know the names of our escorts, and the name of the offices that housed the conference room where we observed, out of an abundance of caution, I will not provide details of them.

The 4 other observers consisted of a an undergraduate intern from a different DC-based organization, a person who had graduated from law school a year or so ago and was working for a DC-based organization, an investigator from a DC-based organization along with that person’s undergraduate intern. I did ask myself about the observer selection process, taking into account the rounds of application submission / denial / application supplements I went through to get cleared for 2 specific hearings only.

Coincidentally, I knew one of the other observers from another organization with which she had been previously affiliated.

Reaching the Pentagon hearing room

We observers and our military escorts snaked our way down multiple, high-ceilinged corridors in the complex, passing pale nondescript doorways and archways that led to seemingly reinforced entry points into high-security areas. We arrived at the door of an office that looked like a typical government office like those I had seen in any number of other Departments or Agencies – standard desks and chairs, file cabinets and computers, and clutter.

Off to the side of that office was a door leading into what I would learn was the conference room where we would observe the hearings. Before reaching that conference room door, we had to relieve ourselves of our electronic devices – phones, laptops, iPad, Fitbit – anything with an on / off switch. We placed all of our items on a table.

Several of us went on a Starbucks run, down to the Pentagon’s expansive restaurant area. It was like any other Starbucks, except that while standing in line our group could not fiddle with our mobile phones, as we had already been liberated of them. It gave me a chance to become reacquainted with the young lawyer observer whom I had met before.

Getting situated in the hearing room

After refreshments, we winded our way back to the nondescript office. It was almost 9:00, the time for the PRB to begin.

We filed past the table that held our electronics, and entered the conference room. We sat around a conference room table that seemed to have just enough seats for the 5 observers, our escorts and a couple of other Department of Defense people who joined us, both uniformed and non-uniformed.

The observers all were required to sign another document (in addition to the Ground Rules we previously signed), this one swearing that we knew the rules related to SCIFs — sensitive compartmented information facilities – and that we were complying with those rules, including not having recording devices in our possession. Another reminder to us to double-check our pockets for extra mobile phones, etc.

This conference room was very small, packed with the conference table and chairs, and lots of other equipment occupying almost every square inch of the room’s real estate, including, as I recall, the walls.

There was a big screen on one wall, positioned such that almost no one in the room had a natural, straightforward view of it. I chose a seat from which at least I didn’t have to turn my body to see the screen.

As 9:00 got closer, the Observers shared small talk. Others in the room sat quietly doing their jobs related to the technical aspects of the hearing, or maybe perhaps observing the observers–I’m not sure.

The Guantanamo side of the camera – the PRB begins

Initially I sought to absorb the environment of the room, but I also focused on signing the SCIF form and exchanging pleasantries with fellow observers (Have you attended a PRB before? You’re a college junior – do you plan to go to law school? What issues are you working on as a summer intern at your organization?)

All of a sudden, we began to hear distant voices over the web-shaped speaker nestled in the center of the conference room table. Audio checks.

Almost precisely on time, the screen came to life. We could see a small, barren-walled claustrophobic room in which sat a very small rectangular table with 3 chairs, which was surrounded by 3 men.

For all PRBs the detainee is physically in Guantanamo Bay. During the hearing, he sits at the head of the rectangular table on the Guantanamo Base, flanked by a linguist who sat at a place setting on one side of the table. The linguist sits directly across from the detainee’s Government-appointed personal representative. Seated on 3 sides at the end of a rectangular table, the arrangements would have been suitable for a shared meal among the 3, or board games. Had Bakush had private counsel, perhaps that person would also have sat at the table.

A video camera is pointed towards the three sitting at the Guantanamo table. The camera faced Bakush head on, and captured the right side of the face of the linguist’s and the left side of the face of the personal representative. The linguist and the personal representative had to turn their heads slightly to see and speak directly into the camera.

At 9:08, a few minutes past the appointed hour, the hearing began.

Eyes naturally gravitated to the focus of the hearings – on Bakush. He appeared hunched forward over the stack of white papers on the table, dressed in white gown flannel-like top that may have been local to Libya. His full, long, seemingly dark beard appeared to touch the table as he leaned forward. The screen appeared to be a little fuzzy, so I cleaned my glasses. The screen was still fuzzy, with the faces a bit blurred.

Bakush’s facial expressions appeared not to change dramatically throughout the 13-minute hearing. It was impossible to know whether he understood what was being said or read, as virtually the entire hearing was conducted in English, and I do not know if he understands English. He waived reading of the unclassified government document in Arabic.

Was Bakush emotionless during the PRB? Was he detached or interested? It is impossible to know what was going on in his mind, and it does not do justice to try to read what could be made out of his expressions, his mannerisms, or his posture.

As documents were being read into the record in English, Bakush from time to time would flip through white papers sitting in front of him on the table. I do now know what, if anything, was written on those sheets, or what language any text might have been. Perhaps those pages contained his own personal statement that he would read into the record later? The observers were not permitted to stay in the room while he, through his own mouth, made his personal plea for release from Guantanamo.

A distant voice was heard listing out the titles / roles of various people who were present at the hearing, either at Guantanamo in the hearing room, or elsewhere.

Others present for the hearings 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 watched remotely in his or her office in the DC area. Also present for the hearing were the Legal Advisor to the Board; the Case Administrator; a Hearing Clerk; and a Security Officer, though it is not clear where these individuals were located at Guantanamo Bay or elsewhere.

The PRB hearing itself

The PRB hearing itself lasted a total of about 13 minutes. The clock on the wall had a time different from the time announced by the distant voice piped in through the speakers, and those times were different from the time on my watch. I didn’t catch the precise number of minutes. I thought I would be able to see the time on the transcript, but the Pentagon posted a notice indicating that Bakush requested that the public transcript of his hearing not be posted online.

Suffice it to say that the hearing was very short.

After the roll call of attendees that began the hearing, a voice said something like this — “This board is called to order. This board is convened to determine whether continued law of war detention is warranted for detainee [Ismael] in order to protect against a continuing significant threat to the security of the United States.” [Quote based on notes and was not verified as the transcript was not available on the PRS website online after the hearing.]

The first document read into the record, in English, was the Government’s Unclassified Statement. It was read by a woman who did not appear on camera. It answer the question of who does the U.S. Government believe Bakush is and what does the U.S. Government believe Bakush did. Essentially, the Statement summarized reasons that the U.S. believed that Bakush poses a continuing threat to U.S. National Security.

Government views on “Who is Bakush”?

First, it should be noted that the allegations that the government made against Bakush in its unclassified summary are not criminal charges. That is, the government has not levied any criminal charges against him in the Guantanamo Bay U.S. Military Commissions. These allegations related to the Government’s assessment as to whether Bakush is a threat to US national security and whether he should be released from detention.

The unclassified summary document alleges that Bakush alleges in definite terms that Bakush “was a Libyan Islamic Fighting Group (LIFG) explosives expert who trained al-Qaida members”, and he “developed close relationships with several al Qaida leaders and provided explosives training to LIFG and al Qaida operatives, including some who later conducted attacks in Kuwait and Morocco”.

A number of other allegations against Bakush were couched in more tentative terms, such as “probably” – he “probably” “associated with and provided operational support to” key al Qaida figures. He “probably” was in Afghanistan from 1991 – 1994, and again starting in 1998.. He “probably helped” al Qaida, and “communicated regularly with prominent” al Qaida figures, including “possibly” Abu Zubaydah and “probably” senior al Qaida leader Abu Faraj al-Libi. However, using stronger language, one allegation was that he “almost certainly” “plotted to kill Libyan leader Moammar Qadhafi”

The full text of the Government’s Unclassified Statement follows:

[office src=”https://onedrive.live.com/embed?cid=AA02978A4AC8C787&resid=AA02978A4AC8C787%21151&authkey=AGBmMjobHPhhryo&em=2″ width=”876″ height=”688″]

Bakush’s Government Appointed Opening Personal Statement

Bakush’s U.S. Government-Appointed Personal Representative, dressed in fatigues, said in his Opening Statement that he was “presenting “Bakush’s case this morning”. He said that Bakush had “been cooperative and receptive while meeting with me”, and that Bakush “is eager and excited to begin a new chapter in his life.” He said that Bakush “has learned to be more opened minded [sic], tolerant and accepting to others while living in a communal living setting”, and that Bakush “believes that his communal living arrangement allows him more opportunities to gain exposure for himself to other detainees’ cultural and religious backgrounds”, and as a result, Bakush “now respects and values the opinions of others from various cultural backgrounds”.

The Personal Representative said that he “was not able to contact [Bakush’s] family, but understand from our discussions that his mother has properties that would enable her to offer [Bakush] financial support. His cousin is employed and is also willing to help [Bakush] financially”. It was not mentioned why the Personal Representative was unable to contact Bakush’s mother, to find out firsthand about the “properties that would enable her to offer [Bakush] financial support”, or could not contact the employed cousin who “is also willing to help [Bakush] financially. Would it be practicable to release Bakush based on his being able to receive family assistance, if the Personal Representative is unable to contact these family members?

The Personal Representative spoke about how Bakush “enjoys watching and playing many sports such as soccer and swimming”, has taken classis in health and life skills, and enjoys cooking for others. Bakush “would like to work in the restaurant industry”. He looks forward to having his own family, and to raising children of his own. He would prefer to live in an Arabic speaking country, but “is willing to relocate to a country that provides him opportunities for a successful future”. He is “willing to participate in a rehabilitation or reintegration program as well”.

Then, the Bakush’s US Government-Appointed Personal Representative of Bakush read the Personal Representative’s Opening Statement, the full text of which follows:

[office src=”https://onedrive.live.com/embed?cid=AA02978A4AC8C787&resid=AA02978A4AC8C787%21148&authkey=AIRpgxkmHfAsWkY&em=2″ width=”876″ height=”688″]

The following document appeared on the PRS website following the hearing, and indicates that Bakush requested to not have his own written PRB statement published to the website:

[office src=”https://onedrive.live.com/embed?cid=AA02978A4AC8C787&resid=AA02978A4AC8C787%21150&authkey=AOOGj3FqDg3mxgw&em=2″ width=”876″ height=”688″]

The following document appeared on the PRS website following the hearing, and indicates that Bakush requested to not have the transcript of his PRB published to the website.

[office src=”https://onedrive.live.com/embed?cid=AA02978A4AC8C787&resid=AA02978A4AC8C787%21149&authkey=AOVSb2TjxjzeO_c&em=2″ width=”876″ height=”688″]

FYI, the New York Times has posted http://projects.nytimes.com/guantanamo/detainees/708-ismael-ali-farag-al-bakush/documents/115 documents related to this detainee, and prior reviews for possible release:

Combat Status Review Tribunal (CSRT) Summary
Administrative Review Board (ARBs) (3 documents)
Joint Task Force – Guantanamo (JTF-GTMO) Assessment

George Edwards

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30 May 2016 Hearing in 9/11 case — Monday at Camp Justice, Guantanamo Bay, Cuba

Leontiy Korolev at Guantanamo Bay, Cuba on Memorial Day, 30 May 2016

On Monday, 30 May 2016, the U.S. Military Commission held the first day of this week’s pre-trial hearings in the case against the 5 alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon. I was sitting in the Guantanamo Bay courtroom during today’s hearings, which were fascinating.

This post will share about the substance of today’s hearings. Near the end of this post I will share some of my personal observations and opinions about the proceedings and process.

May 30 2016 9/11 Hearing

Yes, it is Memorial Day, but the Judge made it a while ago clear that today’s hearings would take place.

The hearings started with a discussion of the schedule of motions to be argued this week. The following is a list of some of the motions that will be argued, in the order they will be argued, at least as of the end of Monday’s public hearing. Each motion is assigned an “AE number”.

AE 380: Whether or not Walid bin ‘Attash can remove his counsel.

AE 161: Defendants motion for release of unredacted copies of unclassified information.

AE 400: Defense motion for the release of full transcript of the open hearing which government redacted after the fact.

AE 018W: Defense motion to correct problems with the legal mail regime.

AE 018Y: Prosecution motion to block communications between defendants and other except through JTF-GTMO Protocol.

AE 152: bin al Shibh motion for Contempt of the Government for not stopping the “harassing noises and vibrations”.

AE 422: Prosecution motion to depose victim’s family members during October 2016 hearing.

Witnesses

As of now both the defense and prosecution will present witnesses for the 152 motion. The defense will present two current detainees, one on Thursday morning, and one on Thursday evening.

I have no doubt that both detainees will present captivating testimony, but the potential presence of one of the detainees is is particularly noteworthy.

Abu Zubaydah

Abu Zubaydah has not been seen since his 2002 capture by the CIA. http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article80052562.html

The Prosecution will present a former Camp commander on Friday morning.

Late start to hearings

There was a bit of a late start to the hearings today, in part because there were new guards assigned to secure the proceedings. This fact was brought up several times during the hearings today, most notably after the lunch break when counsel for Khalid Shaik Mohammad (“KSM”) stated that the guards would turn down the A/C in KSM’s holding cell. [Side note, I was able to go into one of the holding cells as part of the tour of Camp Justice on Sunday (he was not there).] Bin ‘Attash actually jumped into the conversation twice expressing his displeasure with the situation. This lead to a “that’s enough Mr. bin ‘Attash”, from Judge Pohl.

A Brief Overview of Some of the Hearings on the Motions

AE 380: bin ‘Attash audibly confirmed that he would like to remove his counsel and later followed up by saying that in 2013 he was able to remove an assistant D.A.G. from his team. He argued that he should be able to remove the current assistant attorney, Mr. Schwartz as well. The issue is whether or not the defendant can remove non-statutorily required counsel. The Judge gave defense 2 weeks to file a brief showing why such counsel cannot be removed from the defense team up request from bin ‘Attash.

AE 161: There are laws that allow the government to redact certain information from disclosure. The defense argues that the prosecution is overstepping its bounds because information is being withheld improperly and the redacted information makes it impossible for the defense to use some of the documents they receive. For example, in one discovery response the prosecution redacted administrative information from the provided documents, which made difficult to match up the documents with their respective attachments.

AE 400: This was a continuation of oral arguments on a motion that I heard argued when I travelled to Ft. Meade in February, 2016. The controversy revolves around an open hearing held on 30 October 2015. After the 30 October 2016 hearing, a redacted transcript was released. The Defense and media companies filed a motion to release the entire unredacted transcript. I published an earlier blog on the motion on 22 February 2016. I found it interesting that this motion may be one of the few times when news outlets such as Fox, MSNBC, and New York Times are all on the same side of an issue. In today’s hearing the parties argued weather or not the discussion of the redacted information can be had in an open session. The defense argued that it could, the prosecution argued the opposite. The Judge stated they will meet in a closed session (505 hearing) to determine if the substantive hearing (806 hearing) can be held in open session.

David Nevin and KSM

David Nevin, Learned Counsel for KSM, requested that KSM be present at both, the hearing to determine if there should be a closed hearing, and at the closed hearing if one is held. The Judge ruled that KSM cannot be present at the 505 hearing, but withheld a ruling regarding the 806. He later denied the request for KSM to be present at the 806 hearing as well.

AE 428: The defense filed a motion for a continuance because various members of the different defense teams have not received proper clearance from the government to view certain evidence. The prosecution argued that a continuance is not necessary because some of the necessary clearance forms were not filed properly. The Judge did not grant a continuance but did bring up a point worth discussing – judicial economy. If clearance is given after many issues have been litigated to conclusion, motions to reconsider will be filed for each such issue since the granted clearance would create new evidence. New evidence bolsters the case for reconsideration of a previously litigated issue.

Backs of tents where NGOs live at Camp Justice.

Tents in Camp Justice where NGOs live at Guantanamo Bay. The Defense had ordered that its lawyers and staff not live at Camp Justice due to concerns about possible carcinogens. The order was lifted prior to this week’s hearings.

AE 426: This motion dealt with the habitability of facilities at Guantanamo Bay. Specifically, this motion dealt with the presence of toxins at Camp Justice, which happens to be the place where I will be living for for the next week. Here is a Link to an article discussing various carcinogens found in the soil at Camp Justice as well as an Order forbidding defense staff from sleeping at Camp Justice.

AE 018W and AE 018Y: The hearings on these motions dealt with the transmission of communications by defendants to third parties through the defendants’ counsel. Defense argued that it should be able to transmit any unclassified documents to third parties, or alternatively there should be a specific process they can follow to determine what communications can be cleared for release.

Mustafa al-Hasawi, defendant # 5 in the 9/11 case

However, Counsel for Hawsawi (defendant # 5 in the 9/11 case) made it clear Hawsawi would not agree to any such process, they would especially not agree to any such process unless the process was transparent and those involved in any review were identified. Counsel for Hawsawi argued that the government is not releasing certain communications because it does not like the message, not because the communications are a threat to national security. The AE 018 motions dealt with a handful of communications that were provided to third parties including a defendant’s family and the White House.

AE 183: Defense argued that defendants should be able to call their attorney from Camp Justice whenever necessary, and vice versa. Currently there is no efficient way for the defense counsel to communicate with their client without being in the same location. Prosecution argued that there is no way to establish a secure connection between the detainees and their counsel. Some research into the current logistics, including any security hurdles, of the communication between defendant and counsel both in person and from the U.S. would likely lead to interesting findings.

My Personal Observations

There just is not enough time to process and report in a meaningful way my experience so soon after the end of the first day’s hearings. I feel very grateful to finally be here and have the opportunity to observe these hearings and interact with the other people here.

All five defendants were present on the first day of hearings. KSM wore his cameo jacket as a statement to show that he is a combatant. There does not seem to be a simple explanation here for anything, while KSM’s attire at first seems to be just a statement in support of the actions he has allegedly committed, there are deeper issues at play. For example, since KSM is a combatant, he, based on precedent, should be able to wear his uniform in a military trial. Denying his request to do so, may impinge on his right to a fair trial. This article briefly touches on the KSM’s attire choice. I also noticed that Hawsawi sat on his pillow, presumably to minimize discomfort caused by events occurring during his detention.

Our NGO group was able to return from lunch in time to catch the end of the defendants’ and one defense counsel’s prayer session. During the prayer, each defendant had two guards standing back to back. One in the direction of the defendant, and another facing the opposite way. My first thought was that the guards were there to protect everyone from the defendants. I quickly realized how insane that thought was. Given the circumstances, the detainees are very powerless. The main reason for the guards, in my mind, is to protect the detainees.

Unrelated Personal Observation

We have had some issues with connectivity which partly explains the reason for not posting more about my travel and arrival. There are 8 ethernet jacks in the NGO lounge for NGO observers to use to hook up to the internet. Only two of them worked over the weekend, and even those two are still very slow. There are many rights and interests that come into play with what may seem like an “inconvenience”. For example, NGOs have an interest to report the ongoings at Guantanamo Bay to the outside world. The public has an interest to know the ongoings at Guantanamo Bay. The defendants have a right to a public trial. Both the Government and the prosecution have an interest in allowing the public to be aware of the ongoings at Guantanamo Bay. All of these rights and interests are effected by a slow and inconsistent internet connection. Additional unrelated point — there is an active bee hive a few feet away from the entry to the NGO Lounge. The NGO Lounge is the only place where internet connection is available to NGO Observers at Camp Justice. Other than the internet, the experience here has been excellent. Everyone we have encountered has been pleasant including our escort, drivers, members of the media, and the attorneys for both sides.

Many of the ideas above are based on my memory and understanding of the 30 May 2016 hearing and related motions and transcripts. The foregoing is my opinion in my own personal capacity, and my blog posts and other comments are my own and do not necessarily reflect those of the Indiana University McKinney School of Law or anyone else, for that matter.

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

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

Memorial Day at Guantanamo Bay, Cuba — 9/11 Hearings

Leontiy Korolev at Guantanamo Bay, Cuba on Memorial Day, 30 May 2016

Leontiy Korolev, a graduate of Indiana University McKinney School of Law, traveled to Guantanamo Bay, Cuba on Memorial Day weekend to observe hearings in the U.S. Military Commission case against 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. He is representing the Indiana McKinney Military Commission Observation Project, which is part of the school’s Program in International Human Rights Law.

Mr. Korolev will be posting blogs on what he observes at Guantanamo Bay.

Pictured here is a photo taken of Mr. Korolev at Camp Justice, which is where Observers such as Mr. Korolev live while at the U.S. Naval base.

Traveling to Guantanamo Bay for Hadi War Crimes Hearings

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 16^th, 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)

My Scheduled Trip to Guantanamo Bay

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

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

Case Background

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

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

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

Approval Process

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

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

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

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

Conclusion

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

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

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

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 Tri al Manual, which observers and others can use to help them ascertain whether the rights and interests of all stakeholders have been afforded to them. The Manual examines rights and interests not only of the defendants, but also of the prosecution, victims and their families, the media, observers / monitors, and others.

I have also registered for multiple trips to Guantanamo Bay to view hearings live in the courtroom. However, all of those sets of hearings were cancelled in the days prior my departure. The repeated delays have given me a sense of the monumentally sluggish pace at which these trials move.

Who am I?

I am a 3L law student at IU McKinney, and am set to graduate in December 2015. Until recently I was a human rights intern with the Universal Rights Group, which is a Human Rights think tank in Geneva, Switzerland. My ongoing interest in the Guantanamo Bay is driven in large part by my passion for human rights work, combined with my ongoing interest in criminal law.

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Luke Purdy in front of the UN Building (Palais des Nations) in Geneva, Switzerland (Fall 2015).

Next week’s hearings

I am particularly excited about the fact that judge is scheduled to engage in a colloquy with the defendants on Monday morning the 7th, which will give me a chance to view and report on the spoken words of the accused.

I am also interested to hear evidence/testimony on the defendant’s request to prevent female guards from having direct contact with the defendant for religious reasons.

The hearings are scheduled to begin on Monday, December 7 and run until Friday the 11th. I will continue to blog about my observations at the base. I am expected to be joined at Ft. Meade by IU Affiliates Bob Masbaum (a J.D. graduate) and Professor George Edwards (founder of the Military Commission Observation Project). IU McKinney Professor Catherine Lemmer, who is an international librarian, is scheduled to travel to Guantanamo Bay this weekend to attend these 9/11 hearings live.

By: Luke Purdy, 3L, Indiana University Robert H. McKinney School of Law

Indiana law students and faculty at Ft. Meade’s Guantanamo hearings

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.

Mr. Tex Boonjue is a rising 2^nd year Indiana student, who is working for the Court of Appeals for the Armed Forces (CAAF) at the Washington, DC Naval Yard.

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 22^nd. 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.

George Edwards – Ft. Meade, Maryland

Hadi’s Guantanamo hearings delayed two days

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

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

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

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

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

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

Who are the Guantanamo Observers this week?

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

My third of the men’s tent.

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

Internet Access

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

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

The NGO Library

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

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

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

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

Big Day Tomorrow

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

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

Greg Loyd – Guantanamo Bay, Cuba

My arrival at Guantanamo Bay, Cuba

Greg Loyd - At Camp Justice - 21 July 2015

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

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

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

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

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

Waiting to Board

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

When did friends and Colleagues last see each other?

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

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

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

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

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

NGO Impact: A Cost – Benefit Analysis

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

A personal example

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

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

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

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

Breaking News

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

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

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

Greg Loyd – Guantanamo Bay, Cuba

Guantanamo USS Cole Case Day 2 — Hearings To Resume April

USS Cole on 1st deployment after 2000 suicide bomb killed 17 US sailors and wounded dozens more

Yesterday, Monday (March 2) was a very interesting day at the court dealing with Unlawful Influence and hearsay evidence in the al Nashiri case against the alleged mastermind of the 2000 U.S.S. Cole bombing in Yemen. Judge Spath ruled that a pentagon official (General Ary, retired) had exercised the Unlawful Influence over the case, and disqualified Ary from acting as “Convening Authority”, who is the person who organizes resources for the Military Commission case. The USS Cole case no longer has a Convening Authority, and Judge Spath declared that there would be no further evidentiary hearings this week and that court will reconvene in first week of April 2015.

End of March USS Cole Session

Judge Spath addressed the next set of hearings, which happen to be scheduled to fall on the Easter holidays (first week of April). This was initially scheduled to be for two weeks but will be a one-week hearing after the Unlawful Influence “debacle”. The judge stated that in order to show that there was no pressure on him, he would truncate this April session. There is a possibility that travel to Guantanamo may be delayed to allow people to celebrate Easter, with the hearings possibly beginning on Monday or Tuesday, and extend into Saturday.

Al Nashiri’s “grooming”

There were several motions heard today, and I mention them in a separate post. I will discuss one here, related to the defendant’s “grooming”.

Mr. Rick Kammen, who is al Nashiri’s “Learned Counsel”, brought to the attention of the court the issue of al Nashiri’s grooming. Mr. Kammen said the issue had still not been resolved and within the last 10 days, the policy had changed three times.

The prosecution said that the Joint Task Force – Guantanamo Bay (JTF-GTMO), which is responsible for the detention facilities, has endeavored to amend their Standard Operating Procedures to address this and the accused will have access to grooming before court and attorney-client meetings.

The judge added (emphasizing that this was not a ruling) that he expects that no prisoners will be in shackles in court if they don’t have to be, or in prison uniform before the members of the court, regardless of who the accused is.

It is not clear what falls into the category of “grooming”. It seems to deal with issues such as what clothes al Nashiri is able to wear to court, access to bathing facilities, haircuts, and the like. And, shackles in court also was mentioned in the context of this grooming discussion. I find myself wondering what exactly what “grooming” involves.

Whereas I am certain they must have very stringent rules on the Base, grooming to me seems a basic right, entrenched in the right to humane treatment as espoused in domestic and international law. The Guantanamo Fair Trial Manual considers the right to humane treatment and humane conditions of detention on page 114.

Furthermore, grooming ties in with the right to be presumed innocent, which is also covered in the Guantanamo Fair Trial Manual. The defendant’s physical appearance in the courtroom may affect the impressions of the jury, the press, the NGO Observers, the victims and their families, and others who may see the defendant. If he is dressed in “prison clothes”, appears to be unclean or unkempt, or is shackled at his hands and feet, an impression might be formed that is different than if he appeared clean and tidy wearing a 3-piece business suit.

Sunset at Girls Cout Beach, Guantanamo Bay, Cuba

After hearings – The Beach & a Jamaican Dinner

The NGO Observers were taken on a short tour of several beaches on the island by a logistics specialist, Petty Officer Second Class Archie, and then had dinner at the Jerk House. I had authentic Jamaican Jerk Chicken served by a Jamaican (I think), with Jamaican reggae music playing in the background. The only thing that could have made this better is if I had saved room for dessert.

Meeting with the Prosecution; Departure for GTMO

Tomorrow (Wednesday, March 4) we will meet with the prosecution team at 2:00 p.m. and the defense team at 4:30 p.m.

We will depart Guantanamo Bay for Andrews Air Force Base at 10 a.m. Thursday.

It certainly feels like we have been here longer than three days.

The next blog will be list more motions from today, and the blog after that will deal with the life of an NGO Observer at GTMO’s Camp Justice.

(Avril Rua Pitt, NGO Observer Lounge, Camp Justice, Guantanamo Bay, Cuba, Wednesday, 4 March 2015)

At Andrews Air Force Base: Ready for Guantanamo Bay, Cuba!

Sign at gate of Andrews Air Force Base.

I finally arrived at Andrews Air Force Base for my flight to Guantanamo Bay for the USS Cole Bombing hearings against al Nashiri. It is very chilly this morning (Sunday the 1^st), but I’m told that better temperatures await ahead.

Today I learned that what is now Andrews dates back to the Civil War, when the Union used a local country as its headquarters, and that church is still used by the Andrews community today, in 2015.

The base first became operational as Camp Springs on 2 May 1943, and was officially named Andrews Field in 1945. (I guess there was no Air Force during the Civil War, and no need for the word “field” to be part of the base’s name then.) In October 2009, Andrews Air Force Base and the Naval Air Facility in Washington were joined as the Joint Base Andrews Naval Air Facility Washington (or “Joint Base Andrews”) (Joint Base Andrews History Factsheets).

At Andrews Air Force Base, in front of USO sign.

At Andrews Air Force Base check in counter. IIU McKinney LL.M. graduate Avril Pitt Rua (left) with Affie Ellis from the American Bar Association (ABA).

All the NGOs representatives, except for two who cancelled at the last minute, met at the Andrews’ Gate. With us are representatives from the American Bar Association, Duke University, the National Institute of Military Justice, Pacific Council of International Policy, Georgetown University School of Law, Judicial Watch, Human Rights First and the New York City Bar Association. We all met with our escorts, did introductions and shared interesting facts about ourselves. I am excited to meet all of them individually. One of them, from Human Rights First, is so far very impressed with the Guantanamo Bay Fair Trial Manual that we in the Indiana University McKinney School of Law Military Commission Observation Project have been researching and writing. I will be chatting more with him and other on our flight.

I know that one of the sections of the Guantanamo Bay Fair Trial Manual deals with rights and interests of NGO Observers. Yes, we NGO representatives have interests too. For example, we have an interest in being able to do what we are sent to do, and that is attend, observe, analyze, critique and disseminate information about the GTMO Military Commissions. I hope that we NGOs on this trip will be permitted resources and access able to accomplish our NGO goals.

Of course, Andrews is the home of Air Force One. The plane taking us to Guantanamo Bay is a more modest than this one.

Andrews is the home of Air Force One. The plane taking us to Guantanamo Bay is a more modest than this one. Photo courtesy of U.S. Air Force photo/Staff Sgt. Amanda Savannah.(http://www.andrews.af.mil/shared/media/photodb/photos/060506-F-3568S-004.jpg)

We are about to go through security at Andrews. So, I’ll sign off for now.

Next stop, Guantanamo, Bay!

Avril Rua Pitt, Andrews Air Force Base, March 1, 2015

Going to Guantanamo – Overnight at Andrews Air Force Base

Outside Andrew Air Force Base from my hotel.

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

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

Flying to DC

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

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

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

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

Preparing for my mission to Guantanamo Bay, Cuba

Hot off the press! Guantanamo Fair Trial Manuals

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

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

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

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

March 2 – 6 Hearings

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

Retired Major General Vaughn Ary

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

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

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

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

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

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

I look forward to meeting the other NGO observers.

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

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

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

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

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

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

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

IU McKinney Gitmo Observers Illuminate Murky Proceedings in Gitmo Trials

by. Marilyn Odendahl (25 February 2015)

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

Professor George Edwards

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

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

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

Professor Catherine Lemmer

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

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

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

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

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

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

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

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

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

“It became very surreal,” she said.

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

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

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

Professor Tom Wilson

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

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

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

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

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

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

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

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