Left to right: Professor Edwards (Gitmo Observer Founder); Mr. Leontiy Korolev; Mr. Matt Kubal. Korolev & Kubal are new members of the Gitmo Observer Advisory Council. Professor Edwards is an ex oficio member. The photo was taken in the International Human Rights Law Academic Center at Indiana University McKinney School of Law.
Professor George Edwards, who founded the project, said “our Gitmo Observer Advisory Council is a very important part of our overall Project, as it helps us carry out our mandates.”
Regarding the project missions, Professor Edwards said: “Our Military Commission Observation Project’s missions include sending our members to Guantanamo Ba, Cuba (Gitmo) to attend, observe, analyze, critique and report on war crimes tribunals held there. Our Indiana University McKinney School of Law students, faculty, staff and graduates travel to Guantanamo Bay, Cuba, and play important roles related to rights and interests of all stakeholders in the process.”
The Advisory Council guides the Gitmo Observer in fulfilling the project’s responsibilities under the Pentagon’s Convening Authority grant of NGO Observation Status for the Guantanamo Bay U.S. Military Commission hearings. The Advisory Council helps manage The Gitmo Observer site and related social media, screens and selects observers for travel to hearings at Guantanamo Bay & Ft. Meade, and develops resources to educate and train selected observers and others.
Professor Edwards, Mr. Korolev, and Mr. Kubal each recently traveled to Guantanamo Bay, Cuba to monitor hearings. Edwards and Korolev each also recently traveled to Ft. Meade, Maryland to monitor Guantanamo Bay hearings that were simultaneously video-cast by secure link from the Guantanamo Bay courtroom to the Post Theater at Ft. Meade.
The other NGO Observers and I met with several members of the defense team for Mr. Hawasawi, defendant in Guantanamo’s 9/11 case, at around 5:30 pm Thursday, 25 February 2016. This was shortly after the court hearings let out for the day. Observers are not permitted to attend closed hearings.
Rather than summarize solely what we were told from Team Hawasawi, I will take this opportunity to provide a brief summary of several points we heard again and again when we spoke with defense counsel at the barbecue earlier this week, at the meeting this evening with Team Hawasawi and in court over the past week. Following is a collection of my impressions and is not a direct quotation of any single member of the defense counsel.
Classification and National Security Issues Concerning the Dissemination of Classified Information vs. The Government’s Desire For and Constitutional Requirements For Transparency, a Full, Fair and Transparent Discovery Process :
Security clearance issues and access to information has been a recurring theme
throughout this week. The prosecution alleges that they are seeking to protect classified information which if released could damage national security, while the defense claims that the prosecution is hiding the ball by unnecessarily redacting documents, not doing all they can to assist the defense in obtaining security clearances (and actively standing in their way in some cases) and the defense alleges that the prosecutions claims of protecting national security are a impenetrable blanket excuse to not provide near the items requested in discovery that the defense claims they are entitled to. The prosecution argued generally against the judge being involved as the arbiter of disputes regarding the decision to or to not release classified documents to the defense and asserted they are turning over documents as fast as they can.
Each defense team has between 15-16 persons on that team at any given time. However, we learned via oral argument in court that each team is limited to 10 person with the clearance required to view many classified documents at any given time. During the hearings this week all of the teams had a clearance issue with one or more of their team members access classified evidence and there were several members of the defense teams that were not allowed in the courtroom (they sat in the gallery with the observers, victim’s family members and others without clearance). The defense argues that delays in processing classification reviews of current and future team members are preventing them from providing adequate representation and that the prosecutions effectively has veto power on what evidence they believe the defense should be entitled to. Furthermore, the defense argues that the prosecution has shown that when it serves their interests, they are able to obtain security clearances for defense team members in a very short amount of time (a clearance was obtained Thursday in 29 minutes with help of a phone call from Chief Prosecutor General Martins after a defense team member’s lack of clearance would have delayed the hearing).
According to the defense, the prosecution’s redactions and refusal to provide documents based on national security concerns are an impenetrable blanket excuse to not provide discovery. The prosecution has argued that the judge is not equipped to make classification decisions and would, in some cases, cut the judge out of objections to over-classification in the discovery process (this would potentially allow the prosecution to be the final arbiter in some discovery issues and provide a fraction of the documents requested).
Chief Prosecutor Brig. General Mark Martins
For the prosecutions part on nearly all of these issues, they argued that they are satisfying their duties under the discovery rules while taking the steps they are required to take to protect classified information that, if released inappropriately to the wrong people, could damage national security.
Issues of security and transparency arose several times this week regarding transcripts of public hearings that were redacted after the fact to remove some of the statements that were publicly made, but were later decided to contain classified information. Members of the Press and the defense moved in AE 900 on Monday for the court to release the full unredacted transcript on grounds that not doing so violated the 1st Amendment and 6th amendment. Tuesday, the day after the defense and members of the press made this argument, the Military Commission’s website failed to post the unofficial, unauthenticated transcript that is normally posted the same day of the hearings here. The next day the prosecution moved to seal several exhibits discussed and the defense pre-preemptively objected to an after the fact redaction. Mr. Connell, learned counsel for al Baluchi objected immediately. I have not heard yet whether members of the press or the defense has filed any motions regarding this issue, but unless it was worked out in the closed session on Thursday, I expect another motion along the same lines of AE 900 will be filed in the upcoming weeks regarding this new after the expected retroactive redaction.
Chief Judge Pohl originally presided over both the al Nashiri case and the 9/11 case.
A New Judicial System: Several defense members mentioned that there are inherent challenges in the military commissions system because it is such a new judicial system and because it was created after the crimes took place and after the accused were captured. They also mentioned that, from the defendant’s perspective, the Military Commission system appears to be a judicial system created and designed specifically to lead to their conviction and eventual execution (rather than an independent arbiter to reach a determination of guilt or innocence and, if guilt is found, to mete out an appropriate punishment).
Ideal Choice of Law/Forum? When asked, in a perfect world, what forum and/or choice of law would the members of the defense choose for their defendants, none of them suggested the military commissions or in Guantanamo Bay. Their answers were generally that they would choose a U.S. Federal Court on the east coast in the USA (New York and the Washington D C. area were both brought up, but a couple of the attorneys chose a military court in the USA (at Quantico and in New York). One of the attorneys added that, in that ideal world, they would want a separate trial for their defendant divorced from the other four current defendants.
Ramzi Bin al Shibh, a defendant in the 9/11 case, testified Wednesday about conditions of his detention at Guantanamo Bay, Cuba
Conditions of Confinement: Defendants have asked their attorneys to seek relief that will address their current condition of detainment and health. In some cases, the attorneys suggested these were their primary concerns. For example, defendants sought the return of their laptop computers, none of the defendants want to have female guards touch them, the defendants and defense attorneys would like to have more freedom to transmit legal and non-legal mail to and from their client and to third parties, Mr. Hawasawi is in need of surgery & medical care, Mr. Bin al Shibh wishes the judge to stop alleged vibrations and noises in his cell and Mr. al Baluchi would like to have post-torture/PTSD counseling.
Ethical Obligations: The attorneys each have different ethical obligations depending on the agency that is licensing them. For example, learned counsel for Attash, Cheryl Bormann, is licensed by the Illinois State Bar Association and so her ethical rules are different than her co-counsel Army Maj. Matthew Seeger who is bound by the the Army’s Rules of Professional Conduct for Lawyers.
When Will it End?: Estimates of when this case would go to trial varied from 5 years to not in this decade to not anytime soon. No one seemed to think this case would be moving to trial in a speedy fashion (though the right to a speedy trial is expressly not awarded to these defendants via the Military Commissions Act of 2009).
On a personal note, I fly from Guantanamo Bay to Andrews Air Force Base tomorrow morning early and I will drive back to Indianapolis soon thereafter. I hope to post a few more times in the next week or so.
Allow me to take this opportunity to thank the Program in International Human Rights Law’s Military Commission Observation Project at Robert H. Kinney School of Law and Professor George Edwards for allowing me to spend the last week viewing the 9/11 hearings at Guantanamo Bay, Cuba. Over the past week I was able to explore many of the issues surrounding the Military Commissions, the Guantanamo Bay facility from the perspective of an observer and to report to you my findings. I found the experience engaging and though-provoking. I am quite happy that I was selected and that I agreed to participate.
By Matt Kubal, JD, Indiana University McKinney School of Law
Camp Justice where we live in tents next to the Guantanamo Bay courtroom complex
This evening (23 February) I have for you a correction from my last post, a few notes about the hearing in the 9/11 case today, some thoughts regarding a missing transcript from today (perhaps temporarily), a clarification of a comment I made in my last post and a preview of what we have to look forward to tomorrow and the rest of the week.
Also of note is that, as of 11:30 pm on February 23rd, the daily unofficial/unauthenticated transcript from the hearings today have not been posted. This is interesting as the transcript is usually posted very soon after the hearings are completed for the day. The AE 400 motion filed by the press and argued on Monday was in response to a similar scenario on October 30, 2015, where the government failed to immediately provide the unofficial/unauthenticated transcript and, when they did provide it, redacted a significant portion of the transcript from the hearing that, on the day of the hearing, had been heard by observers, members of the press, victims family members, others in the gallery at the court room and by those watching via the video feed at Ft. Meade. This very well may be a technical error of some kind, but if the transcript for the hearing today (February 23rd) is posted in a redacted form at a later date, I suspect the press would file another motion objecting to the redactions making the similar argument as they made for AE 400. The judge has not yet ruled on AE 400. You can read the arguments made in support of AE 400 made Monday morning by Mr. Schulz on behalf of the press (February 22nd) here
A Clarification and al Shibh’s Expected to Testify
Ramzi Bin al Shibh, a 9/11 case defendant, is scheduled to testify about the his detention conditions at Guantanamo
My clarification from my last post is that, if Ramzi Bin al Shibh (al Shibh) testifies tomorrow (and i suggest that is still an if), it will be the first time a defendant has taken the stand to testify in this case. At the end of the hearing today the judge advised the court that al Shibh would not be shackled or physically restrained while testifying and his testimony would be limited to the issue of external sounds and vibrations while detained pertaining to AE 152LL only. The reason why I say if he testifies is because at the end of the hearing al Shibh’s attorney requested that he be able to testify from the chair where he normally sits, next to his counsel, during the proceedings. Judge Pohl denied the request and said he will be required to take the stand like any witness. If the request to speak at his usual seat in the courtroom is based on any hesitance by al Shibh to testify, then it is possible that he will have cold feet and will not take the stand.
Here is the summary for AE 152LL from the public Motions Hearing Summary:
AE 152LL; Filed by the Defense
Title: Emergency Motion for Show Cause Why The Government, JTF Camp Commander and JTF Guard Force Members Should Not Be Held In Contempt
Brief Summary: Mr. Bin al Shibh continues to be subject to external sounds and vibrations while detained, despite order from the Military Judge prohibiting such actions by Joint Detention Group and Joint Task Force staff. As a result, Mr. Bin al Shibh requests the Military Judge order the relevant staff to show cause why they should not be held in contempt.
After Bin al Shibh’s Testimony Tomorrow (Wednesday, February 24th)
The remainder of the day tomorrow, February 24th, will likely be spent continuing the AE 018 series of motions which we started at the end of today with arguments on AE 018Y. The judge indicated that after Mr. Bin al Shibh’s testimony tomorrow, the court would continue with AE 018Y and then move to AE 018W.
Towards the end of the hearing today Chief Prosecutor General Martins, Mr. Connell (attorney for Mr. Ali Abd Al-Aziz) and Mr. Nevin (attorney for Khalid Sheikh Mohammed) presented oral argument on AE 018Y, Government Emergency Motion for Interim Order and Clarification that the Commission’s Order in AE018U Does Not Create a Means for Non-Privileged Communications to Circumvent the Joint Task Force Mail System. Here is the brief summary from the Motions Hearing Summary document we were provided:
The Government seeks an Emergency Motion for an Interim Order following accusations of unauthorized distribution of materials that did not receive sanctioned review by JTF-GTMO.
On AE 018Y today, the Government claimed the defense facilitated unauthorized distribution of materials that did not receive sanctioned review by prison officials (Joint Task Force – Guantanamo). The defense argued that the Government’s characterization is incorrect, that the mail was reviewed and determined not classified prior to being sent, that they were not restricted from sending it.
Up third tomorrow will be AE 018W. Here’s the summary from the Motions Hearing Summary document we were provided:
Filed by: Defense
Brief Summary: Joint Defense Motion to Amend AE 18U, Privileged Written Communications Order
The Defense seeks an order from the Military Commission amending the Privileged Written Communications Order (AE018U), which governs how defense counsel and the accused can communicate in writing.
There are several other motions outstanding in the AE018 series (11 total in the Motions Hearing Summary document we were provided). Per Judge Pohl at the end of the day on Monday, next up in open session after the AE 018 series of motions is AE 391:
Here’s the summary from the Motions Hearing Summary document were provided
Filed by: Government
Brief Sumary: Government Motion For the Admission of Death Certificates Into Evidence
The Government requests the admission in evidence now, in advance of the as yet unscheduled trial, of the death certificates of the victims listed in the charge sheet.
Thursday, February 25th, remains scheduled as a closed hearing, so if the court either doesn’t finish AE 018 and/or get to AE 391 tomorrow, I expect those motions will be addressed on Friday.
Options Other Than The Military Commission?
Finally, I have had a few people e-mail me asking what judicial forum might be preferable to the Military Commissions. I would preface my opinion with a caveat that the it is clear from watching the attorneys, judge and court staff operating in the Military Commission in this case are incredibly talented and dedicated professionals. I and my fellow observers have been nothing but impressed with their ability to excel in a very difficult situation.
I touched on some of the theories for what causes delays and challenges in the Military Commission hearings in a previous post. To answer the question, my personal opinion would be to move the hearings to a federal criminal court or a military court in the USA. Another alternative would be for the USA set up a military or special US District court down here. Capital cases take a long time in the USA as well, but trying this case in a judicial system with more established rules, legal precedents and procedures without the need to transplant all of the members of the court to Cuba for each hearing should be significantly faster and more efficient than trying the case in the Military Commission at Guantanamo Bay. This is also the suggestion that several of the attorneys practicing in the Military Commissions attorneys offered when asked a similar question.
On a personal note, I enjoyed some tasty jerk jerk chicken from a little outdoor restaurant by the water. It was ~75 degrees this evening with a nice breeze. Before I returned to the NGO lounge to write this post, several of my fellow observers and I spent the rest of the evening enjoying the lovely weather at a picnic bench in front of our tents in Camp Justice.
By Matt Kubal, JD, Indiana University McKinney School of Law