NGO Observers

Guantanamo Bay case against Hadi al Iraqi case – July hearings
Guantnaamo Bay - Military Commission Seal

Seal of the Office of Military Commissions, U.S. Department of Defense.

The hearings I am scheduled to observe at Guantanamo in the case against alleged al Qaeda leader Hadi al-Iraqi are set for 10 days, 20 to 31 July 2015. Many issues are set to be litigated. This blog will introduce some of these topics:

  1. Defense motion to dismiss

The defense is asking the judge to dismiss the case as a whole, or, alternatively, to dismiss just on charge (Count V, Conspiracy).

  1. Motion to suppress defendant’s statements.

The defense is asking the court to prohibit the Government from admitting at trial many statements made by the defendant.

  1. Government motions on admissibility of certain evidence

The prosecution wants the court to determine whether the judge will permit particular pieces of evidence to be admitted at trial.

  1. Personal jurisdiction

This motion asks to judge to rule whether the court has personal jurisdiction over the defendant. The Government will have the burden to establish that the court has the authority over this particular defendant so that the court can conduct his trial. If the court does not have jurisdiction, then the trial cannot go forward.

A busy 10 days.

The prosecution and defense have submitted hundreds of pages of briefs and other documents related to these and other motions. It looks like it can be a busy 10 days for us at Guantanamo Bay.

I am excited about the opportunity to observe these proceedings. I will work hard to help keep you posted. In the meantime, please keep reading about the case!

By Greg Loyd – Guantanamo Bay, Cuba

 

 

 

My flight to Guantanamo Bay – by Greg Loyd
On my way to Guantanamo Bay: a quick meeting with George Edwards

I’m on the left, with Professor George Edwards who founded the Military Commission Observation Project at Indiana. This photo was taken in Washington, DC the day before my departure for Guantanamo.

I’m set this morning to go to Guantanamo Bay to monitor Military Commission hearings. On my plane, which leaves from Andrews Air Force Base, will be the judge, prosecution and defense lawyers, victims’ families, press, court reporters and interpreters, and other hearing observers. For 10 days we will be involved in pre-trial hearing in a case against alleged war criminal al-Hadi al-Iraqi, an alleged high-ranking al Qaeda member.

I appreciate the opportunity to represent the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law.

 My Background

I graduated from Indiana’s law school over a decade ago, and I have worked as both a defense attorney and a Deputy Prosecuting Attorney. I have worked with many categories of individuals emotionally vested in cases – criminal defendants scared for their future due to charges against them, detectives who sink their nights and days investigating a case, family members who grieve for a loved one, and fellow attorneys who spend sleepless nights worrying upcoming hearings. I hope this balanced lense will aid me in better understanding each Guantanamo Bay stakeholder’s point of view and lead to reporting that readers find helpful.

 My Role

As an Observer, I will watch, listen, and ask questions about the rights of stakeholders in the al-Hadi al-Iraqi case. Obviously, one such stakeholder is the defendant who has significant rights and interests in the matter. Yet, so too do the families of victims. The press. NGO’s. Yes, even the prosecution. When evaluating the military commissions, it is important to consider not just the rights of any one stakeholder, regardless of who or what this stakeholder is, but rather, the analysis must be global in nature. Given that much has been written about the defendant’s rights, I will try to pay close attention to another stakeholder — the rights of the Guantanamo Bay prosecution — in an effort to contribute to a full discussion.

A helpful starting point is to ensure an understanding of the charges filed against a defendant.

Abd al-Hadi al-Iraqi

Abd al-Hadi al-Iraqi

What are “Charges”?

Charges are the formal method that the government uses to accuse an individual (the defendant) with having committed a crime. The charges are not evidence and the filing of a charge does not mean that the defendant is guilty. Rather, it is the Government’s responsibility to prove at trial that the defendant is guilty. The Government filed fives charges against Hadi al-Iraqi.

Charges Against Hadi al Iraqi

Here is a brief explanation of the charges filed against the defendant.

  1. Denying Quarter

In short, the Government alleges that Hadi al Iraqi ordered his combat forces in Afghanistan and Pakistan that when they engaged in combat, they were to take no prisoners, even if the opposing forces attempted to surrender.

  1. Attacking Protected Property

Here, the Government alleges that the defendant attacked a military medical helicopter as it attempted to evacuate a U.S. military member from a battlefield and that the defendant knew the helicopter was a medical helicopter.

  1. Using Treachery or Perfidy

The Government asserts that the defendant detonated explosives in a vehicles that killed and injured German, Canadian, British, and Estonian military personnel.

  1. Attempted Use of Treachery or Perfidy

Hadi al-Iraqi is charged in this count with attempting to detonate explosives in a vehicle to kill or injure U.S. military members.

  1. Conspiracy

The Government contends that the defendant entered into an agreement with Usama bin Laden and others to commit terrorism, denying quarter, and murder (among other acts), and that he took at least one step to accomplish the purpose of the agreement.

Conclusion

I’m looking forward to monitoring the upcoming hearings. In applying my experiences, I hope to share a thoughtful analysis regarding my observations at Guantanamo Bay that contributes to the exploration of the rights of all stakeholders.

By Greg Loyd

Traveling to Guantanamo Bay for Hearings Tomorrow
George Edwards & Greg Loyd - Pre-Gitmo - DC - 18 July 2015

Mr. Greg Loyd (left) & Professor in Washington, DC on the eve of Mr. Loyd’s departure for Guantanamo Bay hearings in the case against Hadi al Iraqi. Professor Edwards will monitor the same hearings at a secure location at Ft. Meade, Maryland, beginning Monday, 20 July 2015.

Greg Loyd will fly to Guantanamo Bay, Cuba to monitor hearings in the military commission case again Hadi al Iraqi. Professor George Edwards will monitor those same hearings via a secure video-link at Ft. Meade, Maryland.

Mr. Loyd, who is a graduate of the Indiana University McKinney School of Law, is representing the law school’s Military Commission Observation Project (MCOP), founded by Professor Edwards. Three Indiana students and graduates will join Professor Edwards at Ft. Meade for the hearings, that commence Monday, 20 July 2015.

Abd al Hadi al-Iraqi

Hadi al-Iraqi

Who is the defendant?

The pre-trial hearings are in the case against Hadi al Iraqi, who is an alleged high ranking member of al Qaeda. He is charged with being an al Qaeda liaison to the Taliban, to al Qaeda in Iraq, and to other affiliated groups. Professor Edwards was in the courtroom at Guantanamo Bay in the 2014 summer when Hadi al Iraqi was arraigned on these charges.

The flight to Guantanamo Bay & drive to Ft. Meade

Mr. Loyd is scheduled to report to Andrews Air Force Base on Sunday, 19 July 2015, for his flight to Guantanamo Bay. Professor Edwards and the other Indiana monitors are scheduled to drive to Ft. Meade early Monday morning for the hearings. While Mr. Loyd will be in the Guantanamo courtroom, the Ft. Meade viewers will witness the proceedings live by video.

Blogging

All Indiana monitors will be posting blog entries about their observations. They are all using the Guantanamo Bay Fair Trial Manual to help them assess whether in their opinion, all stakeholders are receiving the fair trial to which they are entitled. The defendants are entitled to a fair trial, and so too is the prosecution. Other stakeholders with rights and interests include the media, the U.S. an international public, and the victims and victims’ families.

 

 

Guantanamo USS Cole Case Day 2 — Hearings To Resume April
USS Cole on 1st deployment after 2000 suicide bomb killed 17 US sailors and wounded dozens more

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

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

End of March USS Cole Session

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

Al Nashiri’s “grooming”

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

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

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

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

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

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

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

Sunset at Girls Cout Beach, Guantanamo Bay, Cuba

Sunset at Girls Cout Beach, Guantanamo Bay, Cuba

After hearings – The Beach & a Jamaican Dinner

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

Meeting with the Prosecution; Departure for GTMO

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

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

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

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

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

 

USS Cole Case Day 1 Wrap Up: Guantanamo Bay
From the ferry crossing Guantanamo Bay, the GTMO airport where we arrived in the background.

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

Touch Down at GTMO

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

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

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

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

Courtroom Tour

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

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

Court Session Begins – Victims & Family Join

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

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

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

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

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

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

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

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

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

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

More Motions

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

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

Meeting with Chief Prosecutor General Martins

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

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

Meeting Carol Rosenberg

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

Tuesday’s Court Schedule

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

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

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)

9/11 Hearings Misc Motions Heard

On Wednesday, February 11,  Judge Pohl called for the parties to suggest motions that could be heard outside of the 292 conflict-of-interest matter and the prior CIA black site interpreter matter (350). There was an aura that the 9/11 hearings were on life support as the prosecution and defense struggled to put motions on the table that could be argued during the remainder of this week. Mr. Walter Ruiz, Learned Counsel, proposed a number of motions that deal only with his client, Mustafa al-Hawsawi.

This morning he called to order the Military Commission to hear arguments on a variety of outstanding motions. Defendant Mr. al Baluchi chose not to attend the hearings today. As a result, the first few minutes of the proceedings dealt with an Officer of the Judge Advocate General Corp’s office testifying that he had informed Mr. al Baluchi of his rights to attend and to obtain his waiver. Typically when this happens the prosecution files a “submission of alias” because the testifying officer does not provide his name on the witness stand. Learned Counsel for Mr. al Baluchi, James Connell, noted on the record that the prosecution had not made such admission this morning.

David Nevin, Learned Counsel for Khalid Shaikh Mohammed, again went on the record to make an on the record motion (and to indicate that he will be filing a written motion) to halt all proceedings until such time as the matter of the former CIA black site interpreter issue is resolved.  Again, he was overruled.

Today’s activity focused on motions focused by Mustafa al-Hawsawi.  Mr. Walter Ruiz, Learned Counsel, argued the following motions:

  • AE192 & AE196 Motion to Seek to Disqualify Legal Adviser, Office of the Military Commission Due to the Unlawful Interference with the Professional Judgment of the Chief Defense Counsel and Detailed Learned Military Counsel. Mr. Ruiz requested that Judge Pohl go forward with an analysis of the underlying facts and law because these circumstances are representative of an instance of unlawful influence in the proceedings. The issue of unlawful influence does not resolve itself simply because those involved have left the Office of the Military Commission. Ms. Bohrmann, Learned Counsel, for Mr. Walid bin Attash, similarly urged Judge Pohl to undertake the analysis and make a ruling.
  • AE332 & AE340 Motions to compel discovery of Mr. Hawsawi’s medical records and access to medical personnel who treat Mr. Hawsawi. Mr. Ruiz requested access to medical records and medical personnel in order to judge the standard of care his client is receiving and also to help Mr. Hawsawi make medical decisions. His health has showed signs of deterioration. The prosecution challenged these motions by arguing that the medical issues are arising out of a December 2014 incident in which Mr. Hawsawi was injured while in detainment. The prosecution also stated that his medical records, which were classified, are being declassified and delivered to the defense on a rolling basis.
  •  AE303 Motions addressing conditions of confinement. Mr. Ruiz argued that the circumstances of confinement at Guantanamo Bay violate humanitarian law. He did note that there has been one change. For example, Mr. Hawsawi did not have any access to his family from 2003 through most of 2014.  In October 2014 a process was put in place to allow the defendants to record messages that will be delivered to their families. In January 2015 a process was put in place to enable the defendants to Skype with their families. His overall focus was that quality of life will equal quality of defense and that the United States has a legal duty to abide by the law. The prosecution urged Judge Pohl to stay out of the detention role and noted that the Geneva Convention does not apply to these defendants because they are “alien unprivileged enemy belligerents.”
  • AE214 & AE214A Motion to Compel Mr. Hawsawi Access to the Government of Saudi Arabia in Compliance with United States Law and Motion to Compel Prosecution to Produce Un-redacted Copies of Correspondence etc. Pertaining to Requests by Saudi Arabia to Meet With Its Citizens Held in Guantanamo Bay Mr. Ruiz urged Judge Pohl to order this discovery so that Mr. Hawsawi would have access to officials of his home state, Saudi Arabia.

At the conclusion of lengthy oral arguments, Judge Pohl asked if there was any further outstanding matters.  Again David Nevin renewed his concern that the legal proceedings were continuing in light of the 292 and 350 matters.

James Harrington, Learned Counsel for Ramzi bin al Shibh, brought up what he called a “simmering problem.” He stated that the manner in which the defendants are handcuffed/shackled has changed and that as a result the defendants are experiencing injuries.  Mr. Harrington noted that the defendants are not attending attorney-client meetings rather than suffer the injury. He asked Judge Pohl to ask the prosecution to look into the matter and see if the issue can be corrected.

The proceedings concluded with James Connell, Learned Counsel, asking Judge Pohl to issue an subpoena or other relief to provide the defense access to the former CIA black site interpreter.  Judge Pohl declined to do so and asked for a written motion.

Camp Justice Guantanamo Bay, Cuba December 2014

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

 

40 Seconds is a Long Time & Other GTMO Musings

Monday, February 9, was my first observation experience in the Guantanamo Bay courtroom. It is difficult to describe because I am prohibited from writing much of what I would like to say about the activities in the courtroom. It is a highly controlled area. A sign informs observers that among other things, sketching and even doodling, are prohibited in the gallery. After seeing the courtroom activity, I believe even more so that the courtroom proceedings should be broadcast live on C-SPAN or other network.

Observers, along with the media, are seated in a four-row gallery behind a glass window. Upon entering the gallery you are given an assigned seat number. Media representatives, along with the court sketch artist, are assigned to the front row. Media may also watch the courtroom action on a direct feed to their office/lounge. This allows them to send immediate updates. There is a special gallery section for the family members of 9/11 victims. A curtain can be drawn to protect the victim family members from view of others in the event there is a need for privacy.

The defendants are able to see into the gallery; and at one point Khalid Sheihk Mohammed looked back and acknowledged one of his pro bono attorneys who was present in the gallery.

The gallery is on a 40-second delay. It is amazing how long 40 seconds feels! The time delay gets a bit weird when the “all rise” is given when Judge Pohl leaves and the gallery is still processing the last minute of the activity. I was standing and still scribbling notes as I watched the monitor.

There are a lot of actions that seem unnecessarily proscribed at Guantanamo Bay.  For example, the NGO Observer office/lounge is in the old airport hangar, as is the media’s office/lounge. However, we enter our NGO Observer office/lounge from a door on the outside of the building and can’t go into the hangar. During General Martins’ press briefing, the NGO Observers could not go into the hangar and watch.  We had to stay in our office/lounge and watch it via a live link.

DSCN0945 NGO Observers Media

 

 

 

 

 

 

Similarly the NGO Observers had to watch the defense team press briefing in our NGO Observer lounge/office. The feed to the NGO Observer lounge/office was terminated at the end of the hour, even though the press asked the defense teams if they would continue with the briefing. The NGO Observers later learned that the questions and answers continued for some time after the feed was terminated.

After the startling allegations against the newly assigned interpreter by Ramzi bin al Shibh, one NGO observer remarked “you just can’t make this stuff up!” That about sums up the process here at Guantanamo Bay.

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

Still Awaiting A 9/11 Update

On Monday, February 9, Judge Pohl recessed the 9/11 hearings to permit General Martins’ prosecution team and the defense teams to investigate the allegations made by the 9/11 defendant, Ramzi bin al Shibh, that he recognized the new interpreter assigned to his defense team as a worker at a CIA black site. Interestingly, his statement naming the individual and directly making reference to a CIA black site was not censored by the Courtroom Security Officer. As a result, the unofficial transcript first posted to the Military Commissions site included the interpreter’s name. Later in the afternoon a redacted unofficial transcript was posted. A number of the NGO Observers felt that the inclusion of the interpreter’s name in a public document was unwise.

General Martins asked for time to discover the facts and file “papers.”  Defense teams asked that the filings be adversarial (ie., available to the defense) rather than ex parte. In addition, defense teams asked that the interpreter be made available for interviews.

There has been a good deal of going and coming of lawyers at the courtroom.  However, no news is leaking out to the NGO Observers. It is now 6:30 pm on Tuesday and the docket does not specifically reflect any filings by the prosecution or the defense on this matter. The prosecution did file an “Unclassified Notice of  Classified Filing” earlier today. The document is not available for public review.

Although there is much speculation as to whether the 9/11 hearings will move forward, there is no news as of this time.

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

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.

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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)

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)

Year End Update: More Guantanamo Detainees Released (Catherine Lemmer)

Keeping informed. 

Carol_Rosenberg,_by_Colonel_Bryan_Browles

Carol Rosenberg by Colonel Bryan Browles (from Wikipedia)

The most important thing I observed during my time at Guantanamo Bay is that the activities that occur there are far from the minds of most Americans. In my small opinion, this physical and virtual distance creates a situation ripe for abuse. On the flight home I sat across the aisle from Carol Rosenberg (Miami Herald) and plied her with questions. She is perhaps the best source of knowledge as she has been on the story since the arrival of the first detainees in 2002. During the NGO Observer Tour of the courtroom facilities, the Officer in Charge of the Office of Military Commissions, John Imhof, often looked to her for information.

I made a commitment to myself to stay informed. It shouldn’t take a lot of effort — I’ve started following Ms. Rosenberg’s twitter feed and set up an alert on my news feeds.

National Public Radio interviewed Ms. Rosenberg at 6:45 pm EST on December 31 regarding the release of an additional four detainees and the efforts to close Guantanamo Bay. As of this date, there are still 127 detainees, 59 of whom have been cleared for release. While the rest of the world prepared for year end celebrations, she maintained her vigilance on our behalf.

(Posted by Catherine Lemmer)

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…)

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

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

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

BG_Mark_Martins

Brigadier General Mark S. Martins

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

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

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