Guantanamo Bay Fair Trial Manual

My Morning at Guantanamo Bay Hearings at Ft. Meade
In front of the Post Theater at Ft. Meade.

In front of the Post Theater at Ft. Meade.

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

What, Guantanamo Bay proceedings in Maryland?

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

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

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

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

Al Nashiri’s February 2015 hearings

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

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

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

Driving to Ft. Meade

Getting to Ft. Meade is not easy.

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

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

Photo courtesy of CNN

Photo courtesy of CNN

Arriving at Ft. Meade

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

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

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

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

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

Drug sniffing dog Axa and her handler

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

Canine Patrol

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

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

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

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

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

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

Fram - A drug sniffing dog and his handler.

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

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

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

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

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

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

Dog Handlers are gone — What Next?

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

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

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

Thoughts on My 23-27 March Mission to Guantanamo Bay
Abd al Hadi al-Iraqi

Abd al Hadi al-Iraqi

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

 

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

General Preparation for the Project and my Guantanamo Bay travel

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

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

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

My Indiana McKinney Law School Career

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

My Military Service

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

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

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

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

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

Guantanamo Bay Conviction of Australian David Hicks Overturned
David Hicks after learning that his Guantanamo Bay conviction was overturned on 18 February 2015. (From Sky Sydney news.)

David Hicks after learning that his Guantanamo Bay conviction was overturned on 18 February 2015. (Sky Sydney / The Guardian.)

A U.S. military appellate court overturned Australian David Hicks’ 2007 Guantanamo Bay conviction on charges of “material support for terrorism”. On 18 February 2014, the U.S. Court of Military Commission Review ruled that the crime Hicks was convicted of did not exist as a matter of law before 2006. The alleged criminal acts occurred in or before 2001, before “material support for terrorism” was criminalized. A copy of the court’s ruling is below in full text or here:  Hicks v. United States (CMCR 2015).

David Hicks' Defense Team returns to Andrews Air Force Base after his conviction in March 2007 for material support for terrorism. His conviction was overturned on 18 February 2015. Left to right – Professor Tim McCormack (Australian Expert Witness), Professor George Edwards (U.S. Expert Witness), Major Michael “Dan” Mori (Hicks’ Detailed Military Counsel), (Sarah Finnin, Australian civilian volunteer), Rebecca Snyder (Military Counsel Detailed as Civilian Counsel), Mick Griffith (Australian Civilian Counsel), Sergeant Rios (Team Assistant), Dave McCleod (Australian Civilian Defense Counsel).

Hicks’ Defense Team at Andrews Air Force Base after his conviction for material support for terrorism, which was overturned on 18 February 2015. Left to right – Professor Tim McCormack (Australian Expert Witness), Professor George Edwards (U.S. Expert Witness), Major Michael “Dan” Mori (Hicks’ Detailed Military Counsel), (Sarah Finnin, Australian civilian volunteer), Rebecca Snyder (Military Counsel Detailed as Civilian Counsel), Mick Griffith (Australian Civilian Counsel), Sergeant Rios (Team Assistant), Dave McCleod (Australian Civilian Defense Counsel).

Professor George Edwards and his students from the Indiana University McKinney School of Law provided pro bono legal research for Hicks’ defense team from 2004 until Hicks’ 2007 guilty plea. Professor Edwards was also tendered as an expert witness on the Hicks case, along with Professor Cherif Bassiouni, Professor Tim McCormack, and the late Judge Antonio Cassese. The Military Commission prohibited the experts from testifying live, and in lieu of live testimony, the experts provided affidavits. Professor Edwards’ two affidavits were on the right to a fair trial under international humanitarian law (the law of war / law of armed conflict), international criminal law, and international human rights law.

During Hicks’ 2007 guilty plea, Professor Edwards (from the U.S.) and Professor McCormick (from Australia) were in the Guantanamo Bay courtroom, and are believed to be the first expert witnesses permitted to travel to Guantanamo Bay for a U.S. Military Commission.

Hicks was sentenced to 7 years in prison, with most suspended. He remained at Guantanamo for two months after pleading guilty, and then after 5 ½ years at the remote island prison was returned to Australia, where he spent an additional 7 months in prison before being released.

George Edwards, Tim McCormack & David McCleod on Airplane to GTMO - March 2007

Expert witnesses George Edwards and Tim McCormack, and  Hicks’ civilian attorney David McCleod on a U.S. military aircraft from Andrews Air Force Base Airplane to Guantanamo Bay, Cuba for David Hicks’ U.S. Military Commission & guilty plea. (March 2007)

According to Military Commission spokesperson Myles Caggins, the U.S. government will not appeal the appellate court’s ruling.

Hicks’ military lawyer for his initial Guantanamo Bay proceedings, Lt. Col. Michael Dan Mori (ret.) (then Major Mori) was not available for comment. He is pictured above with the Hicks defense team as they arrived back at Andrews Air Force Base after the March 2007 guilty plea. Pictured also in this post are Professor George Edwards (Indiana University McKinney School of Law) and Professor Tim McCormack (University of Melbourne Faculty of Law), on a military aircraft traveling from Andrews Air Force Base outside Washington, DC to Guantanamo Bay, Cuba for the U.S. Military Commission proceeding during which Hicks pleaded guilty in March 2007. Seated next to them is David McCleod, an Australian lawyer who served as Hicks’ civilian defense counsel.

A copy of the court’s ruling is here:  Hicks v. United States, 13-004 Decision (Feb 18 2015) – US Court of Military Commission Review

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A copy of the Indiana University’s Guantanamo Bay Fair Trial Manual can be found here. 

Gitmo Observer Provides NGO Observer Resource Centre

The remaining copies of the Guantanamo Bay Fair Trial Manual and other resources and supplies are set up in the NGO Observer lounge and ready for use by the NGO Observers.

DSCN0936

Gitmo Observer NGO Resource Centre

This trip has nine NGO Observers.  The NGO Observers represent the law schools of Duke University, Seton Hall, and Georgetown University. The other NGO Observers represent Amnesty International, National Institute for Military Justice, New York City Bar Association, Judicial Watch, and Pacific Council on International Policy.  Everyone has been uniformly impressed by the Guantanamo Bay Fair Trial Manual. Hopefully we will get some good feedback!

Earlier today the prosecutor provided the updated 9/11 court filings on cds. They also provided two dvd/cd drives for those NGO Observers whose laptops no longer have dvd/cd drives!  Technology sure has a way of complicating things on days.

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

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

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

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

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

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

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

The matters scheduled on the docket include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What’s Really at Issue with Female Guards touching #Guantanamo Bay Detainees

Camp signThe main issue that was argued the last week of January was whether or not a female guard should be permitted to have contact with a detainee.  Practical concerns were raised in regards to religion.  With Islam, it is taboo to be touched by a female that a man is not related to or married to.  Several witnesses were called, including the female guard at issue.  Steps were taken to preserve her anonymity and there was no personally identifiable information that was given about her.  She testified as to how her job required her to handle the detainee.  Arguments were made that went to whether or not allowing females to touch detainees would hinder that females’ advancement in her career, whether or not the defendant’s religious views were being violated, whether or not suitable male replacements could easily be found, etc.

I think the real issue, that was never broached, is whether the commission actually has the jurisdiction to rule on this matter with regards to general handling while in custody down at Gitmo.  This hinges on how broadly the court interprets the defense’s request for touching to cease.  Defense tried to argue for all touching, period, to cease.  The judge cannot rule on what happens outside of court related proceedings, and even then, how far does his authority reach?  Does it apply to court related medical exams?  Transfers from the detention facility to the court holding facilities prior to coming into the court room?  Anything further is speculation and a ruling has not been handed down yet by the judge, but I will definitely be interested to see how this comes out.

(Margaret Baumgartner, Hadi al Iraqi Hearings, January 25-31, 2015) 

Stakeholder Rights – The Prosecution

I am scheduled to leave for Guantanamo Bay on February 7 to obusbaseserve the Guantanamo Bay military commission pre-trial proceedings in the case against the five 9/11 defendants. The flight is a little longer than necessary because the plane is prohibited from crossing Cuban air space. In addition to the NGO Observers, the plane to Guantanamo Bay will carry many of the other players, including the defense teams, prosecutors, media, and victim family members.

As an NGO Observer, it is my role to attend, observe, analyze, critique, and report back on the Guantanamo Bay proceedings to help ensure that the proceedings are fair and transparent for all of the stakeholders. The Guantanamo Bay Fair Trial Manual sets out the rights and interests of the many stakeholders: the defendants, prosecution, victims and their families, press, witnesses, Joint-Task Force-GTMO, U.S. citizens, international community, and NGO observers.

general martins
Brigadier General Mark Martins (Harvard University)

Since my December 2014 Guantanamo Bay mission I have given a good deal of thought to the rights of one stakeholder group in particular: the prosecution. I met Brigadier General Martins, the chief prosecutor, and some members of his team in December during the NGO observer briefing. During the briefing he was asked the “How did you get here question?” In his response he described his past military service, conversations with family, and his legal education and training.

At the conclusion of our meeting, I thanked him for taking on the role of chief prosecutor. Many might wonder why. The short answer is that the prosecutor represents the rights and interests of society as a whole. The guarantee of a fair and transparent trial is as dependent on the prosecution upholding its duty to all of the stakeholders as it is on the defense teams zealously working on behalf of their clients and the judges engaging in thoughtful and insightful legal analysis when rendering rulings.

Standard 1.1 of the National Prosecution Standards of the National District Attorney’s Association states that “the primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth.” Standard 3-1.2(c) of the ABA Standards for Criminal Justice further notes that it is the duty of the prosecutor to “seek justice, not merely to convict.”  10 USC §949(b) (2014) prohibits the coercion or influence of military commission prosecutors. As a stakeholder entitled to a fair trial the prosecution in fulfilling its duty to seek justice has the right to operate with sufficient resources, without judicial prejudice, and free from outside influence.

The duty to seek justice through the representation and presentation of the truth is not necessarily inconsistent with a military commission proceeding. General Martins has indicated that the prosecution is bringing only those charges it believes it can prove; and that no classified information will be used as evidence as it is important for all the stakeholders to be able to evaluate the merits of the evidence. In short, he has advocated for justice with an open and transparent proceeding. However, General Martins and his team are in the challenging position of bearing the burden of illegal and unethical actions by governmental units over which he has no authority (e.g., the FBI and CIA). It may not be possible to counter the taint of these actions on the military commission proceedings. It remains to be seen how he and his team will balance the consequences of these actions while upholding the duty to seek justice.

He is an equally delicate balance with respect to the families of the victims. General Martins often speaks of justice for the victims. The voice of the victims and their families is a strong and compelling voice and the jury (panel) when finally selected and sitting will undoubtedly empathize with it.  As the proceedings progress, those interested in a fair and open process will need to be attentive to ensure that the prosecution serves justice by remaining neutral to and independent of each individual stakeholder group.

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

Three Indiana McKinney Law Professors Travel to Guantanamo Bay, Cuba
Professor Lemmer to return to Guantanamo Bay to monitor the 9/11 case against Khalid Shaik Mohammad and 4 co-defendants

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

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

Professors Edwards & Lemmer – The 9/11 case

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

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

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

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

 

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

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

Professor Wilson — The USS Cole / al Nashiri case

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

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

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

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

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

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

Dean Andy Klein - in front of building

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

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

(Post by by George Edwards)

By the Numbers: An Observation on 9/11 Transparency

Saturday, February 7, will find me again in the departure lounge at Andrews Air Force Base awaiting my departure to Guantanamo Bay to observe the 9/11 hearings scheduled to take place the week of February 9.  The military commission made the 6-page amended docket available on January 26, 2015.  The docket lists over 30 motions; and notes that counsel should be prepared to argue any other motion for which the briefing schedule has concluded.

KSM II Docket February 2015

 

In an effort to prepare for the upcoming hearings, I went to the military commission website to review the relevant documents. Whenever I go to the case site I am reminded of the overwhelming complexity of these hearings. Here are just a few numbers I noted:

  • 2959 documents listed on the docket (269 webpages)
  • 55 documents filed in January 2015
    • 32 documents filed by the defense teams
    • 4 documents files by the prosecution
    • 19 documents filed by the commission

Of the 55 documents filed in January 2015, three are available for public review. One of these three is the amended docket.

Transparency is one key to making sure there are fair and open trials afforded to the defendants held at Guantanamo Bay. The inability to review court filings casts an interesting shadow on the goal of transparency.  Other key elements of fair and open trials are detailed in the Guantanamo Bay Fair Trial Manual that I will be taking and distributing to NGO Observers and other interested persons next week.

(Catherine Lemmer, 9/11 Hearings GTMO, February 2015)

From the Guantanamo defense: “This is Not What America is About”

Not What America is About – Meeting with Defense Teams

“This is Not What America is About” was the consistent theme of the nearly two-hour session NGO Observers had with defense teams for three of the 9/11 defendants: Mr. Mustafa Ahmed Al Hawsawi, Mr. Mubarak Bin ‘Attash, and Mr. Ramzi Bin Al Shibh. Held in the NGO Lounge, a one-window room carved out of metal hangar and filled with mis-matched 1980’s college dorm and office furniture, we listened as the legal teams told of FBI spying on privileged attorney-client meetings with the use of listening devices designed to look like smoke detectors, FBI attempts to use members of the legal teams as informants, Joint-Task Force seizure and review of attorney-client correspondence, CIA control of the courtroom that lead to monitoring of conversation at the defense tables (ironically the $12 million courtroom was designed to prevent this kind of activity), and trial delay tactics. In short, as James Harrington, Learned Counsel for Ramzi Bin Al Shibh, said,  “this is not what America is about.”

Judge Pohl

Judge Pohl

Questions and answers were traded with the defense teams about the Military Commission and the process itself. Unlike the established U.S. federal court system, the Military Commission is a new process and every issue is subject to briefing and arguments; and a ruling by Colonel Judge James L. Pohl. James Harrington described the situation as such, it is a “process set up for a particular goal, when rules don’t achieve [that] goal, the rules are changed.” Despite evidence that terrorists can successfully be tried in Federal courts (e.g.,  Sulieman Abu Ghaith, Osama bin Laden’s son-in-law) the Military Commission process appears at this point in time to be what we stuck with.

Defense Counsel Wearing Hijab

Learned Counsel Cheryl Bormann, who represents Mubarak Bin ‘Attash, also noted the disparate resources made available to the defense teams. For example, her team has not been assigned an investigator. Ms. Bormann wears a hijab during meetings with her client and court proceedings. She explained that she wears hijab to establish rapport with her client. There was a definite undercurrent of a difference of opinion among the defense teams as to whether the wearing of the hijab will create an unfavorable impact with the judge and jury (panel) when and if the 9/11 case ever gets to trial. (more…)

An illusion of transparency

 Camp X-Ray Experience

The cancellation of today’s hearings left the NGO observers at loose ends.  A few of us asked if we were permitted to visit Camp X-Ray. A van and driver were arranged and we headed out late morning for the 15-minute drive to the no-longer used facility.

There is a strange juxtaposition of life here on the base. On our way to Camp X-ray we drove through military family housing–many of the houses are decorated with festive Christmas decorations–and just as we made the last turn out of the neighborhood there was a woman walking her dog and another woman jogging while pushing children in a double stroller. We could have been in any middle class suburb in America!

Within minutes of the neighborhood we pulled over & viewed Camp X-Ray. 

GBay X ray

Camp X-Ray (detainees were held here from January to April 2002)

Camp X-Ray was the temporary detention facility at Guantanamo Bay. The first detainees arrived in January 2002. In April 2002 Camp X-Ray was closed and the detainees transferred to the permanent prison camp–Camp Delta.  It is estimated that Camp X-Ray housed 800 men and teens during its use. Carol Rosenberg (Miami Herald) reported that in 2009 the FBI photographed and documented the camp.  U.S. courts have ordered the preservation of Camp X-Ray facilities where detainees were held at the request of defense lawyers who want it kept intact as a crime scene.

Camp X-Ray, Guantanamo Bay

Camp X-Ray, Guantanamo Bay

Although media representatives and others have toured Camp X-Ray, we were only permitted to view it from the road. Similarly NGO observers are not given access to the detainee facilities and other facilities used by the military commission process. The government challenges the credibility of the NGO observers by limiting our access while demanding that we report that all is well here with the Military Commissions in Guantanamo Bay.

 

Guantanamo Bay – Arrival and Defense Counsel

Flight to Guantanamo

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

G Bay 044

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

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

Arrival

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

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

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

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

Andrews Air Force Base – Ready to Depart
Boarding Pass - Andrews to GTMO - Catherine Lemmer - 12 December 2014

My Boarding Pass for the Andrews to Guantanamo Bay flight.

Sunrise at Andrews Air Force Base

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

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

Coffee & Guantanamo Bay Fair Trial Manual Distribution

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

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

(Posted by Catherine Lemmer)

Preparing for Guantanamo Bay 9-11 Hearings
Our plane to Guantanamo Bay is scheduled to depart from Andrews Air Force Base on Saturday morning, 13 December 2014.

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

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

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

 

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

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

The hearings for 15 – 16 December 2014

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

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

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

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

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

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

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

Indiana Law Affiliate Traveling to GTMO this weekend

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

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

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

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

Wonderful  Hosts

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

18 and 19 November Military Commissions Events at Guantanamo Bay – Hattie Harman

The Military Commission hearing pre-trial motions in the U.S. government’s case against Abd al Hadi al-Iraqi reconvened Wednesday, November 18 at 1:00 p.m.  Hadi is accused of several crimes arising out of his alleged role as an al Qaeda commander in Afghanistan during the post-9/11 period.  Before convening today, Commission Judge Captain Kirk Waits conducted conferences with the parties on various issues including some anticipated to arise on Wednesday.

Defense Motion AE 21 – Contact with Female Guards

The first issue addressed was the status of defense motion AE 21 requesting that female guards cease certain physical contact with Hadi.  The Commission previously granted Hadi’s motion on a temporary basis and the motion was expected to be argued on the merits in this week’s session.  But apparently at Tuesday’s conference it became apparent that Hadi’s defense team had been unable access certain evidence that it intended to use in support of its motion.  Specifically, Hadi objects to being touched by unrelated females based on his religious beliefs.  The government argues that the operational security needs of the detention facility require the use of some female guards. The offensive touch typically occurs during the shackling process when Hadi is being moved from his cell to another location.  Apparently in October when Hadi so objected to being shackled by female guards, he was “forcibly removed” from his cell over his objection.  A video of this forcible removal exists and has been in the possession of the prosecution team for over two weeks.  However, due to problems with the security process (due to the highly classified nature of the video), the defense team was unable to view this evidence until just before Tuesday’s hearing.  Additionally, the defense has not yet been provided access to witnesses to the touching and to evidence and/or witnesses confirming the security needs of the detention facility.  While the government argued vigorously against extending the time for argument on this issue, the Commission seemed to recognize that the defense could not present a viable substantive argument on the issue without more discovery.  The Commission noted that if Hadi is presented with the choice of being shackled by a female or forgoing a meeting with his defense counsel, Hadi’s beliefs apparently prevent him from meeting with counsel or attending his own proceedings.  “That is the most basic of due process,” said Judge Waits.  And in addition to these rights being recognized under the United States Constitution, they are recognized under numerous internationally binding treaties as well as the Military Commissions Act itself.  But also seemingly recognizing that the government has an interest in operating its corrections facilities in a safe, effective, and efficient manner respecting the rights of all genders to equal employment opportunities, the Commission ordered the parties to submit additional briefing on the issue prior to the next scheduled set of hearings in late January.

Defense Motion AE 20 – Article 5 Status Hearing or Dismissal for Lack of Personal Jurisdiction

After wrapping up the briefing schedule for the access to witnesses issue, the Commission issued an oral ruling on one of the motions argued Monday, AE 20.  Readers may recall that this motion concerned the defense’s request that Hadi is entitled to a hearing pursuant to Article 5 of the Geneva Conventions in order to determine his status and thus what type of tribunal may try him for the alleged war crimes.  Hadi contends that he should be presumed a prisoner of war (POW) and thus may not be tried by a Military Commission.  He asked for a determination be made pursuant to Article 5 which provides a particular procedure with a specially constituted panel for determining status.  The government argued that Hadi is clearly an unlawful enemy belligerent subject to the jurisdiction of the MCA and no further status determination is needed.  Rejecting both parties’ positions, Judge Waits on Wednesday granted the defense’s alternative request, which was that the Commission itself make a determination as to Hadi’s status for purposes of jurisdiction.

Rule 802 Scheduling Conference, Courtroom Tour, and Visit to Camp X-Ray

No open courtroom proceedings occurred on Wednesday, but the parties and the Commission held a Rule 802 scheduling conference to hammer out the way forward and to prepare a plan for the next set of hearings which will occur in late January.  The non-governmental observers (NGOs) of the hearings thus had a day devoted to learning more about the facilities associated with the hearings and the detainees.  First we were given a detailed tour of the courtroom complex and its related facilities, including the cells used to house detainees on days when they make an appearance in court.  Next, the Joint Task Force Public Affairs Office graciously led the NGO observers on a tour of now-closed Camp X-ray.

NGOs being led through Camp X ray by Army personnel.

NGOs being led through Camp X ray by Army personnel.

This area was used in the 1990s to temporarily house the large influx of Haitians arriving at Guantanamo seeking refuge in the United States.  For a period of spanning late 2001 and early 2002, Camp X-ray was used to house detainees who were captured in conjunction with the U.S. actions in Afghanistan and elsewhere after the 9/11 attacks.  The conditions were quite primitive, and essentially consisted of a small, covered area enclosed by chain link fence for each detainee.

View of a row of detainee housing at now-closed Camp X ray

View of a row of detainee housing at now-closed Camp X ray

The entire camp was of course heavily guarded and surrounded by concertina wire, most of which still appears to be in place.  Fortunately, the government constructed a series of newer, more humane detention areas to house the detainees when it became apparent the situation was not going to be temporary.  Camp X-ray is being conserved in its present state for historical and legal purposes.