I just received my DoD orders via e-mail today. Preparation for this trip has been a whirl-wind. I’m almost done meeting next week’s deadlines for work, since I will be out of the office (I should be careful, they might expect this type of productivity from me on a regular basis!). My state-side brother and I were talking logistics and he laughed at me for getting excited about the mess hall. I always have enjoyed the food in the messes and I think it annoyed my brother that I would insist on eating there when I would visit. In his words, the mess hall only has good food when a General visits. It’s a lucky week for me then, since there will be a General in camp!
Late night at the office, trying to get through some items in preparation for Sunday’s trip!
On Tuesday, I had breakfast with former rep (and fellow 2010 graduate) Hattie Harman. She highly recommended the book “The Terror Courts” by Jess Bravin. I plan to dig into that book before getting down to GTMO as it mentions several people who are involved in the proceedings. I hope this will give me a better sense of who I am talking to when I meet people. The book should also give me some talking points to pass time while we wait in the lines.
I have also started my refresher with “the Manual” in preparation and I also went to the GTMO website for information. I am not myself until I’ve had coffee in the morning (see my prior Fort Meade postings describing said addiction), so I was scouring the site for information of a rumored cafe. I will also have my own trusty stash, just in case.
On Friday, I will be attending Professor Edwards’ class as a guest to field questions, talk about the project, and meet other participants. That is the extent of my preparation outside of the mandatory paperwork to date, however, that will increase as Sunday approaches.
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.
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 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…)
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.
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…)
Breaking in the media today was news of the release and transfer abroad of five long-term Guantanamo Bay detainees. Five Yemeni detainees deemed of low threat to the U.S. were released last night and accepted today for resettlement in Georgia and Slovakia. The Department of Defense confirmed the transfer Thursday afternoon, and Carol Rosenberg of the Miami Herald was following the story as it broke. And without realizing at the time what I was observing, I watched last night around 8:00 p.m. as a plane departed Guantanamo Bay Naval Station, apparently carrying the transferees. As the NGOs sat around the tents last night discussing yesterday’s observations, the sound of an aircraft departing disturbed our conversation and we all looked up into the night sky. Not accustomed to observing nighttime plane departures at Guantanamo, one of the group remarked, “I wonder who is on that plane.” Now we know.
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.
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
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.
Hattie Harman at Camp Justice, Guantanamo Bay, Cuba.
This morning proceedings commenced in the pre-trial hearings in the government’s case against accused war criminal Hadi al-Iraqi. Hadi is charged in a non-capital case with several crimes arising out of his alleged involvement as an al-Qaeda commander in Afghanistan.
Courtroom Facility/Personnel and Rights Implications
Hadi entered the courtroom unassisted and unrestrained and greeted his counsel in what appeared to be a congenial, even warm, exchange. At Hadi’s defense table sat Hadi, his interpreter, and two military defense counsel. Hadi was escorted by three uniformed (in fatigues) guards. These guards sat within 12 feet of Hadi through the entirety of the proceedings. There were from two to four other guards in the courtroom during the proceedings. A fellow observer who had worked on the UN International Criminal Tribunal for the former Yugoslavia (ICTY) case of Radovan Karadžić (an alleged genocidaire) told me that there was not near the security presence around the defendant in that case as there was in the Hadi al Iraqi case. [Eds. The Guantanamo Bay Fair Trial Manualaddresses security personnel in the court and the issue of a defendant’s presumption of innocence.*]
I watched the proceedings from an observation gallery at the rear of the courtroom which was separate from the main courtroom, but allowed clear visual observation of the entire courtroom through thick glass windows. Audio speakers in the observation gallery conveyed the sound of the proceedings to the observers, with a 40-second delay to allow for censorship of any unintentionally disclosed classified information in the courtroom. No such censorship occurred today. But we thirteen NGO observers were “joined” in the gallery by six uniformed military security persons.
Courtroom Proceedings and Rights Implications
Today’s hearing focused on three defense motions. These motions implicated issues of
Whether the executive branch or the DoD exerted any “unlawful command influence” regarding the timing of the referral of charges against Hadi. Curiously, in the view of the defense, Hadi was charged on the Monday after the Friday, May 31, 2014 media coverage of the release of Bowe Bergdahl in exchange for five Guantanamo detainees.
Whether Hadi’s charging document properly included numerous “common allegations” preceding the charges themselves. These allegations, the defense argues, are simply another mechanism to try to get unproven “facts” before the Commission (MCA equivalent of a jury) before the commencement of proceedings which could prejudice Hadi’s right to be presumed innocent until proven guilty.
Whether Hadi is entitled to a status determination pursuant to Article 5 of the 3rd Geneva Convention as to whether he is actually an “unlawful enemy belligerent” to whom the MCA applies. If Hadi were determined to be a POW rather an unlawful enemy belligerent, the MCA would not provide personal jurisdiction over him, which in theory would mean he would have to be tried in a different tribunal which presumably would afford him more expansive procedural rights.
[Eds.] *The Guantanamo Bay Fair Trial Manual identifies the right to be presumed innocent as a fundamental right that should be afforded to all criminal defendants at Guantanamo Bay and elsewhere. The Guantanamo Bay Fair Trial Manual suggests that when assessing whether the defendant is being afforded a fair trial, NGO observers might consider whether, among other things, the level security personnel surrounding the defendant might be more in line with a presumption of guilt rather than a presumption of innocence.]
My Air Miami plane parked at Guantanamo Bay air field after arriving from Andrews Air Force Base.
[Gitmo Observer staff posted this item for Ms. Hattie Harman because she had no internet access at Guantanamo Bay to post this herself.]
After a very pleasant flight, I arrived at GTMO a little after 1:00 p.m. today (Sunday). In addition to the contingent of NGO observers, press, and defense, prosecution, and judicial personnel, passengers on the flight included several “regular” military travelers to the Naval Station (i.e., military personnel with no involvement in the legal proceedings against the detainees but traveling to GTMO on other military business). The flight included a movie (Spiderman 2), a hot meal (choice of lasagna or chicken), and hot towel service. It was reminiscent of air travel in the 1980s!
We were busy all afternoon getting badges for access to the court areas, obtaining supplies at the Naval Exchange, and doing a lot of waiting. Despite the warnings of recent Gitmo Observer travelers, I expected more from the Internet here. My attempt to purchase (at the cost of $150.00) wired Internet access from the NGO “internet cafe” was foiled for my lack of a proper adapter.
I was able to make it into “town” at 7:00 p.m. to a location that reportedly had wireless Internet access only to find it was not functioning. Not only am I presently unable to post to the Gitmo Observer Blog, I am without any access to email or any other Internet-dependent mode of communication. There is of course no cell phone service either. We’ll see what tomorrow brings on the communication front.
Hearings Commence Tomorrow, Monday, November 17
In the morning, I expect to be escorted along with the other NGO observers to the courtroom in advance of the 9:00 a.m. commencement of this set of pretrial hearings in the United States’ prosecution of 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. Four motions are scheduled to be heard in this three-day session.
I flew from Indianapolis to Washington National Airport yesterday afternoon, in preparation for this morning’s departure to GTMO. Through the gracious hospitality of old friends, I had a lovely place to stay for the night and was driven to the Andrews Air Force Base Visitor’s Center at 5:30 A.M. Non-governmental organizations (NGOs) such as the Gitmo Observer (of Indiana University McKinney School of Law) tend to have very meager budgets, thus most – if not all – of our representatives’ travel expenses are borne by the individual observer. I must thank Spike Bradford, Jill Keesbury, and their son Angus for picking me up at National Airport, putting me up for the night, and driving me to Andrews at the crack of dawn. They are true friends indeed.
In addition, my hosts provided very stimulating pre-trip conversation. Spike works for the D.C. area-based Pretrial Justice Institute, a nonprofit organization promoting safe, fair, and effective pretrial practices nationwide.
As the proceedings I will be observing this week at GTMO – those of Abd al Hadi al-Iraqi – are in the early pretrial stages, Spike offered me some perspective for comparison to U.S. domestic criminal courts. To me, the most stark comparison was between the different lengths of pretrial detention. In typical domestic United States criminal jurisdictions, the accused must be charged with a crime within 48-72 hours of arrest or detention, and then has the right (which he or she may choose to waive) to be brought to trial within a particular time limit. See, e.g., Ind. Rule Crim. Procedure 4(B) (affording accused the right to move for a trial within 70 days). In addition, the U.S. Constitution guarantees the right of the accused “to be informed of the nature and cause of the accusation” and importantly provides that “the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amd. VI (emphasis added). The accused al Qaeda commander Hadi al Iraqi, whose proceedings I will observe next week, was first brought to GTMO in 2007 after being held by the CIA. Hadi was first charged with a crime in 2013.
Andrews Air Force Base
Arrival at Andrews
When I arrvied this morning at Andrews Air Force Base, I met several other NGO observers who will be attending this week’s hearings. One, a representative of the American Bar Association Criminal Justice Section, was already familiar with the work of The Gitmo Observer. I distributed copies of the Guantanamo Bay Fair Trial Manual to the NGOs and it was well received. Many other passengers continue to arrive at the Andrews terminal and are checking in for today’s flight, which is scheduled to depart for GTMO at 10:00 a.m.
Tomorrow (Sunday) I will fly from Andrews Air Force Base to Guantanamo Bay Naval Station, Cuba to observer next week’s pretrial hearings in the U.S. prosecution of alleged al Qaeda commander Abd al Hadi al-Iraqi (17 – 20 November 2014). I will be transporting several updated draft copies of the Guantanamo Bay Fair Trial Manualto distribute to other non-governmental observers (NGOs).
Visit to International Criminal Law Class
Last evening, I had the good fortune to be a guest in Professor George Edwards’ class in International Criminal Law at the Indiana University McKinney School of Law. Professor Edwards, with help from students and others, has drafted the Guantanamo Bay Fair Trial Manual for use NGO observers and anyone else interested in determining whether stakeholders are getting a fair trial. I cannot thank Professor Edwards and his students enough for preparing the Manual and for welcoming me to their class. The Manual has been an indispensible part of my preparation, as it contains a trove of information about the treaties, U.S. laws, and regulations governing proceedings under the law of war, and international human rights law, and it also identifies the various stakeholder groups in these proceedings, all of whom have rights under these laws, treaties, and regulations.
Making Connections – Theory to Practice
I am an attorney by profession, and my work involves primarily appellate review of both criminal and civil substantive law issues. Issues of procedure and particular rights arise from time to time but are by far most of my work involves more substantive questions such as, “Was a particular piece of evidence properly admitted?” and “Did the trial court properly apply the existing case law in instructing the jury?”. The rights issues I deal with are typically secondary to the substantive law questions. Further, to the extent I deal with rights issues in practice, these issues relate almost invariably to the rights of the criminal defendant. Therefore, participation in this MCOP project requires me to shift my legal mindset and approach the proceedings from a very different perspective.
I have no previous experience in international law so of course the Guantanamo Bay Fair Trial Manualis extremely informative. But I found my visit to last night’s class was absolutely essential in helping me to make connections between the Manual’s exposition of human rights law procedures and the application of these rights to the stakeholders in practice. The students and Professor Edwards were able to help me focus on my role to assess whether the proceedings are delivering the rights to which each stakeholder is entitled, not what substantive law is at issue in the particular case.
Today is Veteran’s Day and I am spending my day off from work preparing to attend next week’s pretrial hearings at Guantanamo Bay, Cuba. Next Monday, Tuesday and Wednesday (November 17, 18, and 19, 2014) proceedings will resume in the case United States v. Abd al Hadi al-Iraqi. Abd al Hadi was brought to Guantanamo in 2007 after detention by the CIA. Abd al Hadi is charged with several war crimes arising out of his alleged role as an al Qaeda commander in Afghanistan during the years following the September 11th attacks.
The military judge’s order AE022 (corrected) enumerates the pretrial motions on the agenda for next week’s hearings. Prior to the hearings, the parties and judge will meet for a pretrial conference on Sunday afternoon, November 16 at 5:00 p.m. The hearings are scheduled to begin at 9:00 a.m. on Monday and will include discussion and argument regarding four pending motions:
AE 018 – Defense Motion to Compel Discovery
AE 019 – Defense Motion to Strike Common Allegations
AE 020 – Defense Motion to Dismiss for Lack of Subject Matter Jurisdiction and to Compel a Status Determination pursuant to Article 5 of the Geneva Convention
AE 021 – Emergency Defense Motion for Appropriate Relief to Cease Physical Contact with [Female] Guards
With regard to the last item, the judge issued an order on November 7 (AE021B) which has been reported to temporarily grant Abd al Hadi’s request for cessation of physical contact with female guards.
My Role at the Proceedings
As a non-governmental observer (NGO) attending the hearings under the auspices of the Military Commissions Observation Project (MCOP) of the Indiana University McKinney School of Law Program in International Human Rights Law (PIHRL), I am tasked with the following duties:
Attend the hearings each day as an informed observer.
This requires a substantial commitment in terms of personal time and resources, including arranging for travel to Andrews Air Force Base, completing numerous government and MCOP documents, researching the status of the case and the motions to be heard next week, and reading and studying the Guantanamo Bay Fair Trial Manual prepared by MCOP.
Objectively and with an open mind observe the proceedings and interact with stakeholders present on site (including prosecutors, defense counsel, press, and other NGOs) to glean as much information as possible about the experiences of all stakeholders holding rights to fair proceedings at Guantanamo.
Analyze the hearings.
My observer’s role on behalf of MCOP is to analyze to proceedings not so much from a substantive legal perspective, but rather to focus on the various fair trial rights of all stakeholders to the proceedings.
Critique the hearings.
This includes identifying both positive and negative aspects of the process, both in the abstract (e.g., as compared to other judicial processes) and in practice at the hearing site. Where possible, assess the fairness of the proceedings with regard to the various stakeholders.
Report on the hearings.
Disseminate, through the Gitmo Observer and otherwise, information about the hearing process and the fairness of the proceedings. Prepare a report for MCOP upon my return.
I will depart Indianapolis for Washington, D.C. on Saturday and am ordered to arrive at Andrews Air Force Base (more…)
Hattie Harman and Traci Cosby — Both going to Cuba this month
As I read Chuck Dunlap’s blog posts this week, I find myself looking more and more forward to my upcoming trip to Guantanamo for the next round of hearings (Nov. 17-19, 2014). Chuck is an Indiana University McKinney School of Law graduate who works at the Indiana Bar Foundation, and he is at Guantanamo Bay this week monitoring the hearings in the case of al Nashiri, who allegedly masterminded the 2000 attack on the USS Cole that killed 17 sailors off the coast of Yemen.
I will be monitoring a different case, that of Hadi al Iraqi, who was alleged to have run al Qaeda’s army in Afghanistan, was arraigned this past summer, and his pre-trial hearings are at an early stage.
Yesterday I received instructions from the Pentagon to help me prepare for my mission, including information about the logistics of eating, sleeping, and – most importantly – viewing the proceedings. Reading Chuck’s posts and seeing his photos makes it seem more real all the time!
And I have been especially fortunate this past week to have had short conversation with Indiana Supreme Court Justice Steven David about the Naval Station itself and his experiences there. Justice David, is his position as an Army Colonel, previously served as chief defense counsel. Of course, our conversation was quite limited due to the nature of the subject but it was nonetheless very helpful and exciting to meet with someone who has had his “boots on the ground” at Guantanamo.
Two Views of Cuba
Although I won’t be leaving for Cuba for another week, my good friend and co-worker Traci Cosby is leaving tomorrow for Havana. Traci will be part of a delegation from the American Bar Association Section of Dispute Resolution spending several days in Havana meeting Cuban dignitaries and learning about the Cuban legal system.
How strange it is that two friends and close co-workers would end up – entirely independently – traveling to Cuba in the same month! Obviously, Traci’s and my experiences of Cuba will be very different. But I look forward to swapping stories with her when we both return.
Late last week I was honored to learn I have been nominated by Indiana’s Military Commission Observation Project (MCOP) and approved by the Office of Military Commissions to travel to Guantanamo Bay to observe the November 17-21 pretrial hearings in the case against Hadi al Iraqi. I had the good fortune to travel to Fort Meade in April of this year to observe via secure video link a set of hearings in the case against Khalid Shaikh Mohammad (KSM) and his co-conspirators in the planning and execution of the 9/11 attacks. I am very much looking forward to observing more hearings in person at Guantanamo Bay.
Guantanamo Bay Fair Trial Manual
In preparation for my upcoming trip to GTMO I have begun studying MCOP’s indispensible Guantanamo Bay Fair Trial Manual. The Fair Trial Manual focuses on assisting observers in assessing whether the rights of all stakeholders in the Military Commission proceedings are adequately protected. And while one frequently thinks of the right to a “fair trial” as belonging only to the accused person, I recognize now that this is too narrow an understanding of the concept. As the Fair Trial Manual makes apparent, a somewhat disparate set of individuals and organizations have an interest in the outcome of Military Commission proceedings, and, concomitantly, in their fairness. Just as in traditional criminal trials, the crime victims and their families have an interest in a fair proceeding with a just outcome. A conviction which is later reversed due to a faulty proceeding serves no one, including (and perhaps especially) the victims. (more…)
The USS Cole after it was attacked by suicide bombers in October 2000 in Yemen. (Photo courtesy of United States Marine Corps)
(This article by Marilyn Odendahl was originally published on 4 June 2014 in The Indiana Lawyer at this link) Sitting in a hotel room, preparing to watch a video cast of a hearing with Abd al-Rahim al-Nashiri, one of the alleged masterminds behind the bombing of the USS Cole, Whitney Coffin considered the process of using military commissions to try suspected terrorists. “Before I actually see the hearing, my pre-impression is this is the best way to do it,” Coffin, a 2014 graduate of Indiana University Robert H. McKinney School of Law, said. “Some push to put this in federal courts, but what state is (more…)
Special Counsel Appointed to Investigate FBI Infiltration of 9-11 Defendant’s Defense Team As Jeff Meding posted earlier, the main event of Thursday’s short hearing was the government counsel acknowledging that special counsel Fernando Campoamor-Sanchez has been appointed to represent the government on the issue of the alleged FBI infiltration of Binalshibh’s defense team (seeking information about Mohammad’s defense team) (AE292). Campoamor-Sanchez is best known for his role in prosecuting the Chandra Levy murder in 2011 when he was an Assistant United States Attorney (AUSA).
After today’s hearing, the Miami Herald reported that by Thursday evening, the 9-11 case Judge Pohl had “appointed two unnamed independent defense counsel” to advise Mohammad and Binalshibh with regard to the potential conflict of interest that may arise within their defense teams stemming from the FBI investigation. And at Thursday’s hearing, Judge Pohl left open the possibility that, depending upon what is revealed in discovery into the FBI investigation, the other defendants may also need separate counsel for this purpose.
Can Defense Counsel Bring Back to GTMO Defendant’s Notes Written at GTMO? Another interesting issue addressed Thursday was defense counsel Cheryl Bormann’s request that Judge Pohl issue an order from the bench allowing her to bring writings made by her client Bin Attash back to him at Guantanamo. Apparently counsel had been permitted access to writings her client made that related to his defense, and was permitted to take them from Guantanamo in order to use them in the development of the defense. But when she attempted to bring them back to discuss in conference with Bin Attash, the “Privilege Review Team” (PRT) refused to allow it. Judge Pohn granted Bormann’s request.
Khalid Shaik Mohammad’s Defense Counsel to Leave Finally, Army Major Jason Wright, one of Mohammad’s defense counsel, informed the court that he likely will be leaving the defense team this summer. As an Army JAG officer, Wright is required to complete his LLM degree after attaining the rank of Major. This would require him to leave his present assignment as counsel for Mohammad. Wright’s deferral request was denied, and he has been ordered to report for his LLM assignment in July. Major Wright informed Judge Pohl that he determined that his obligation to his client must take precedence and for that reason he has resigned his commission and will be separated from the Army on August 26. This will allow Wright to represent Mohammad through the June hearings and hopefully at the August hearings as well.
No luck visiting the NSA!
Post-Hearing on Thursday After Thursday’s hearings adjourned, I took a quick tour of the base on my way to the airport.
I was unable to see the National Security Agency (NSA) headquarters, though, as I was confronted by signs as pictured at right. And while I was unsuccessful at convincing Military Police Officer Robinson to take my photograph by the main gate, I was able to convince him to allow me to take his photo by his police vehicle. I must say that everyone I encountered at Fort Meade was most gracious and helpful.
Fort Meade Main Gate
Touch Down at Indianapolis Airport–Met by police, fire trucks, sniffer dogs! Things got even more interesting on my return trip to Indianapolis, when the Southwest flight on which I was traveling landed on time and then taxied into what seemed like the middle of nowhere! The plane was surrounded by police and fire trucks. Passengers were deplaned by stairway onto the tarmac where we and our carry-on luggage were sniffed dogs handled by TSA agents. We were then bussed nonchalantly to the terminal to continue on our way.
I later read news reports that my flight had requested an “emergency landing” after having received a “threat.” Precisely what the threat was, I still do not know! But I arrived home from Fort Meade safe and grateful for the wonderful experience of serving as an observer on behalf of McKinney’s MCOP team.
As Jeff shared yesterday, there were no hearings today and the defense was given the day to prepare proposed orders for discovery related to the FBI’s alleged questioning of the Defense Security Officer on Ramzi Binalshibh’s defense team. And indeed, an ex parte, under seal document was filed today on the issue by counsel for Binalshibh.
Pedestrian entrance to U.S. Naval Academy at Annapolis
As there was no courtroom activity today, I used the free day to make the 25-minute drive to Annapolis to tour the United States Naval Academy. Aside from my personal interest in the facility, I confess I hope to some day interest my 8th grade son in touring the campus as well!
I elected to take the guided walking tour which lasted about an hour and a half and contained a wealth of information about the academy. The grounds are absolutely beautiful and the facilities shown on the tour were state-of-the art. For me, however, the highlight was viewing the crypt where Scotsman and Revolutionary War naval hero John Paul Jones is entombed. Commanding the Bon Homme Richard, the severely out-gunned Jones uttered the famous words “I have not yet begun to fight!” and ultimately captured the British ship HMS Serapis in the battle.
Sarcophagus of John Paul Jones
As the United States had not yet formed an organized navy, after the Revolution Jones sought work elsewhere in the world, and for a time served as an admiral in the Russian navy under Catherine the Great. He later moved the France, where he died in 1792 of complications from an earlier bout with malaria. The French had preserved and buried Jones’ body in a royal cemetery, but the location of the cemetery was lost after the French Revolution. After a six-year search, Jones’ grave was discovered and his remains were repatriated to the United States. He has been interred at the Naval Academy ever since.
After an interesting day learning new things, I’m ready for more hearings! Hopefully we will hear from Judge Pohl tomorrow. In the meantime, I expect Jeff will update us on his adventures in Cuba!
I’ll let Jeff provide the update on the courtroom events of the day – stay tuned for some interesting information! In the meantime, I thought I’d give a little background on the setup here at Fort Meade.
According to (the dreaded) Wikipedia: “Fort George G. Meade is a United States Army installation that includes the Defense Information School, the United States Army Field Band, and the headquarters of United States Cyber Command, the National Security Agency, the Defense Courier Service, and Defense Information Systems Agency headquarters. It is named for George G. Meade, a general from the U.S. Civil War, who served as commander of the Army of the Potomac.”
The base is located southwest of Baltimore and is a short drive from BWI airport. Entry to the base for NGOs is easy; I simply proceed through the main gate (which is probably six miles from my hotel) and to a vehicle inspection checkpoint where uniformed men check my driver’s license and car registration. They ask my business on the base send me on my way. It is a short drive to Smallwood Hall, past the impressive-looking headquarters of the Defense Information Systems Agency, which provides IT and communications support to the President, Vice President, Secretary of Defense, and military services.
Entrance to Smallwood Hall, where we view the hearings via secure video link.
Smallwood Hall is a small, house-like building. In front of the building are two large satellite dishes. I spoke with an IT contractor for the Office of Military Commissions who is on site and operates the system while we are here. He informed me the dishes receive the video and audio from Guantánamo through two satellites, a KU band and a C band. The satellites reside in a geosynchronous orbit in what is commonly referred to as the “Clarke orbit” 36,000 miles above the equator. The dual signals provide complete redundancy in the event of an interruption in the signal from one of the two satellites. In the event of heavy rain, which we are experiencing at Fort Meade today, the KU band is often interrupted and the C band is used. Interestingly, the satellites are owned by a Canadian and a Belgian firm, from whom the government leases bandwidth.
Notice the two large satellite dishes in the right of the photo.
After the IT contractor, I have been the first to arrive each day, a little after 8:00 a.m. There is no particular protocol for entering the Post Theater; the door is unlocked and I just walk in and select a seat in a small auditorium similar to a classroom at our law school. A large screen fronts the room flanked by a United States flag and a U.S. Army flag. Around 8:35 a group of reporters and bloggers arrives together. They are required to meet at the main base entrance and their vehicles undergo a bomb sniff before proceeding to the theater with an escort. They also must be escorted off the post. Present today were representatives from Reuters, Huffington Post, New York Daily News, and Agence France-Presse, and a blogger/reporter from the Brookings Institution. Yesterday an L.A. Times reporter was also here. In addition, there is a reporter from the Armed Forces Press Service (of the Department of Defense) and also an observer from the “OSD” – Office of the Secretary of Defense. He described himself as a “media analyst” for the DOD and was very personable and helpful. Today he provided the media escort off the base.
Auditorium in Smallwood Hall
The family members watch at another location on base; I’m told by one of the press here that some NGOs may be at that location as well, and when Smallwood Hall is occupied with another event, the press may view the proceedings from that location also.
We are permitted to bring cell phones and laptops into the theater. In fact, a white board at the front of the room provides the WiFi password for the building. The reporters are thus able to post reports in real time as court is in session. I would be interested to know what (if any) monitoring is done by DOD of this connection.
Another nice amenity is that someone from a canteen on base is here every morning to take our lunch orders. For a not terribly unreasonable price (e.g., $8.00 club sandwich; $2.50 piece of pizza) we can order lunch which is delivered to us at midday. And finally, on the first day of the hearings we were provided with a CD-ROM containing PDFs of what appear to be all the public filings in the case to date. This is all very helpful but I also suspect it is aimed at limiting the media’s exposure to the base and exercising some control over what documents are “officially” provided.
The atmosphere is congenial; the other attendees were happy to answer my questions and discuss issues. While the hearings are ongoing there is not a lot of discussion, but during breaks and after adjournment they ask each other questions and confirm certain details of the hearings with each other as they prepare to post their stories for the day.
We adjourned early again today – Jeff will have more later on all the excitement!!
Today marked the beginning of a planned four-day set of pre-trial hearings for five alleged 9/11 conspirators being held at Guantánamo Bay. I viewed this morning’s court session remotely at Fort Meade, Maryland. Jeff Meding is on site in Cuba and has previously posted information about the motions scheduled to be argued. Among these is AE152J in which the government requests Judge Pohl to make a determination pursuant to Military Commission Rule 909 of Ramzi bin al Shibh’s competency.
Judge Pohl called the hearing to order at 09:15 EDT. He then advised each accused (all of whom were present in the courtroom) of his right to be present throughout the hearings, and through an interpreter, each accused responded that he understood.
Counsel for the government then addressed the judge, requesting the he grant an ex parte motion apparently filed by the government on Sunday. The only information available in open court was that the motion was numbered 152V and related to the RMC 909 competency issue. Judge Pohl refused the government’s request to grant the motion without a hearing and expressed concern about derailing the week’s schedule over the issue. The government then indicated it felt an ex parte hearing on the issue would take no longer than an hour.
When James Harrington, counsel for bin al Shibh, responded, he stated the defense objects to an ex parte order and would like to brief in opposition and could do so within the hour. However, Harrington objected to a continuance on the ex parte motion issue because of another pending motion, namely, a joint defense “emergency motion to abate” the proceedings which he and the other defense attorneys had filed around 10:00 p.m. Sunday. According to Harrington’s argument, a member of the bin al Shibh defense team was approached on Sunday, April 6 (last week) by two FBI agents and questioned regarding the defense teams in this case. Apparently the motion attaches what purports to be a non-disclosure agreement the FBI required this team member to sign. Harrington asked for abatement of the proceedings pending investigation into the incident and proper advisement of the five accused of any potential conflict of interest. bin Attash’s lawyer also addressed the judge and represented that the content of the FBI conversation is not yet known and without such knowledge her client will not be able to determine if he has conflict-free counsel. The attorneys for the other accused also addressed the court and described efforts to draft the motion.
The government then argued against abatement and also requested the judge proceed with the ex parte hearing on the RMC 909 issue.
The judge determined that he would go ahead with an ex parte hearing on the government’s motion at 1:00 p.m. Monday and would otherwise adjourn for the day, to reconvene Tuesday at 9:00 a.m.
I suspect that Jeff will hear more talk on the ground at GTMO and hopefully we will hear from him!
In the meantime, I spoke with an L.A. Times reporter at Fort Meade, and he indicated that Carol Rosenberg of the Miami Herald is a highly respected press reporter on these hearings. Carol has posted a story about today’s events from her perspective on the Miami Herald website.