Program in International Human Rights Law (PIHRL)

Guantanamo Bay Hearing for USS Cole Bombing Suspect

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

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

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

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

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

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

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

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

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

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

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

Courts’ jurisdiction

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

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

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

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

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

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

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

al Nashiri

al Nashiri

Pre-trial Issues in his case

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

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

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

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

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

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

At Camp X-Ray, Guantanamo Bay

At Camp X-Ray, Guantanamo Bay — George Edwards

My four 2016 summer trips to Cuba

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

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

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

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

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

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

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

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

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

NBA - Group of law professors at end

NBA law professors at Cuban lawyers collective.

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

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

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

Docketing Order – Motions on the schedule to be heard

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

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Afghan money changer pleads for release from Guantanamo Bay

Haji Wali Mohammed, an Afghan money changer, seeks release from Guantanamo Bay

Haji Wali Mohammed, an Afghan money changer, seeks release from Guantanamo Bay

This morning an Afghan who traded currency with the Taliban formally asked the U.S. to release him from Guantanamo Bay after over 14 years of imprisonment.

Haji Wali Mohammad, who is referred to as “Wali Mohammed” or “Mr. Mohammed” by his U.S. Government personal representative and his private counsel, hopes that the PRB will find that he is not a threat to US national security, and that the U.S. Government will thus release him from Guantanamo Bay. A detainee may either be repatriated to his home country, or resettled to a third country.

There seems to be agreement across the board that Wali Mohammed operated a currency exchange business and conducted financial transactions in the 1990s, when the government of Afghanistan was under Taliban control, and that some of the transactions involved Taliban members or Taliban controlled entities, and there seems to be agreement that transactions with certain entities occurred before, during and after the Taliban was in control.

The U.S. government noted:

We assess with moderate confidence that AF-560 conducted financial transactions for Usama Bin Ladin in 1998 and 1999, either directly or through his ties to the Taliban, and was probably motivated by financial gain. We note identifying details for AF-560 have been corroborated, but there has been minimal reporting on AF-560’s transactions completed on behalf of Bin Ladin. Efforts to link AF-560 to Bin Ladin are complicated by several factors, including incomplete reporting, multiple individuals with AF-560’s name-Haji Wali Mohammad, and lack of post-capture reflections. AF-560 was captured on 24 January 2002.

The U.S. government continued:

AF-560 during his detention has never made statements clearly endorsing or supporting al·Qa’ida or other extremist ideology, but probably has a pragmatic view of the role the Taliban held in Afghanistan. He most likely judged that it was prudent to work with, rather than against, the Taliban Government in the 1990s. During his detention, AF-560 appears to have formed a more liberal view of politics in Afghanistan and has said the Taliban will have to change if they want to remain viable in the country, including changing their policy on women’s rights and education.

Countering, the Wali Mohammed’s private counsel contended:

Wali Mohammed’s business was currency exchange. He bought and sold currency in Pakistan and the UAE with the aim of capitalizing on differences in exchange rates. As he has freely admitted, in late 1997 and early 1998, he entered into a partnership to pursue such a currency arbitrage with the Central Bank of Afghanistan -then under the control of the Taliban government. As Wali Mohammed has said, and as an expert on his behalf confirmed ,such partnerships were commonplace before, during, and after the Taliban regime. Wali Mohammed described, and the expert confirms, the sudden and significant volatility in the value of the Pakistani rupee in 1998.

The result was a catastrophic loss -roughly a half-million of the $1.5 million the Central Bank had invested. After the Taliban government learned of the loss, investigators fired the head of the Central Bank, threatened Wali Mohammed with prison, actually imprisoned his cousin, and forced the entire loss on him – in violation of the terms of the deal. This is not the kind of treatment one would expect of someone who was part of or of any importance to the Taliban.

The disastrous failure of the Central Bank transaction also makes it implausible that Wali Mohammed conducted financial transactions for Osama Bin Ladin thereafter -leaving aside that Mr. Mohammed speaks little Arabic and bin Ladin spoke no Pashto. Two intelligence experts on behalf of Mr. Mohammed -one, the former Director of Human Intelligence Collection for the DIA; and the other, a former DIA intelligence analyst, identities expert, and, after the 9/11 attacks, a CIA contractor and charter member of the Terrorist Threat Integration Center, the National Counter Terrorism Center, and the Advanced Analytics Team -have shown, consistent with the Detainee Profile, that the identification of Mr. Mohammed is problematic .Even the late Taliban leader, Mullah Akhtar Mansour, reportedly carried a passport bearing the name “Wali Mohammed.”

This Periodic Review Board (PRB) was ordered pursuant to a 2-11 Executive Order for Guantanamo detainees.

Indiana McKinney involvement in this PRB

This morning’s PRB had no representation by the Periodic Review Board Project (PRBP) of the Indiana University McKinney School of Law. To date, I am the sole individual from the PRBP monitoring PRBs on site, and I have attended several PRBs over the last several months. Postings about these PRBs can be found here.

We nominated Mr. Jeffrey Meding, a McKinney Juris Doctor graduate, to attend today’s hearings, but his request to attend and monitor has not been granted. We are in discussions with the Periodic Review Secretariat (www.prs.mil) further to seek permission for Mr. Meding to attend PRBs, and for others affiliated with our PRB project (PRBP) to attend, particularly when I am not able to attend.

As it happens, in any event, I did not receive my usual clearance from the Pentagon to attend today’s PRB, though I submitted my request to attend last week. Typically, a day or so before the PRB, the Pentagon sends cleared observers an e-mail with details about permissions, logistics, and rules. I did not receive such and e-mail yesterday before this morning’s (25th) scheduled PRB.

We look forward to clarity in the process, and full opportunities to cover PRBs, under one or more of the various categories of persons / entities permitted to observe PRBs – whether media, non-media NGO, non-media individual.

As I did not attend this morning’s hearings, at this point I do not know whether Wali Mohammed actually attended his PRB this morning, or indeed whether the PRB went forward as scheduled. I cannot comment on his apparent demeanor, his looks or clothing, his interaction or non-interaction with the others in the room, whether there were any technical or other difficulties, or anything else of note regarding this PRB. I cannot comment on the efficiency of our usual Pentagon escorts this morning, though it is likely that all went like clockwork, as is typical, from pickup at the Pentagon’s Visitor Center, through badge clearances, winding-hall walking, and escort to the Pentagon’s exit post-hearing.

But as for the PRB hearings themselves, reading the text of submitted documents before the hearings does not provide a full picture of the hearing. Reading transcripts post-hearings does not provide a full picture of the hearing. Reading news reports or postings by NGOs also does not offer a full picture of the hearing. Short of being present in the PRB room at Guantanamo Bay, the best place to observe PRB hearings is in the closed, secure conference room at the Pentagon. In that room, you can see and hear in a way that is more helpful than just reading.

Standing in front of Camp Justice.

Jeff Meding in front of GTMO’s Camp Justice.

Mr. Meding was the first Indiana University McKinney Affiliate to travel to Guantanamo Bay, Cuba on behalf of the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law.

Mr. Meding’s PRB participation on behalf of the McKinney Law School’s PBRP was approved by the MCOP Advisory Council. Furthermore, the Office of General Counsel of Indiana University cleared our Pentagon travelers for PRB purposes. We now await the Pentagon’s grant of permission for us to send IU McKinney Affiliates to observe PRBs at the Pentagon.

Again, we hope that we receive permission to have full representation at the PRBs that are being broadcast to the Pentagon, typically on Tuesday and Thursday mornings.

My PRB posts

Many of my PRB postings can be found here:

https://gitmoobserver.com/blog/

Jeffrey Meding’s Guantanamo Bay posts

Following are some posts by Jeff Meding from his 2012 mission to Guantanamo Bay, Cuba to monitor U.S. Military Commission hearings on behalf of the Military Commission Observation Project of the Indiana University McKinney School of Law:

https://gitmoobserver.com/2014/03/21/gtmo-impressions-jeff-meding-2/

https://gitmoobserver.com/2014/04/12/12-april-2014/

https://gitmoobserver.com/2014/04/14/14-april-2014-1st-day-of-hearings/

https://gitmoobserver.com/2014/04/15/15-april-2014-2nd-day-of-hearings/

https://gitmoobserver.com/2014/04/17/16-april-2014-hearing-adjourned-until-thursday/

https://gitmoobserver.com/2014/04/18/17-april-2014-final-day-of-hearings-selected-pics/

Additional PRB & PRBP Information

Additional information about PRBs can be found here:

https://gitmoobserver.com/blog/

Additional Information abour the Guantanamo Bay Periodic Review Board Project can be found at:

https://gitmoobserver.com/prbs/

 

PS:  The full U.S. government unclassified statement on Wali Mohammed is here:

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The full Personal Representative Statement & Private Counsel Statement are here:

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By George Edwards

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

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

At the Ft. Meade Commissary.

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

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

My trip to Maryland – Sunday

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

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

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

Closed hearing – Monday morning

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

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

 What we did at Ft. Meade – hurdles & highlights

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

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

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

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

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

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

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

Outside the Post Theater, where "Central Intelligence" was being screened -- $6.00 for adults, and $3.50 for children.

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

Third, Professor Edwards and I went by the Post Theater, where many IU McKinney Affiliates have viewed Guantanamo proceedings. Unfortunately, the doors were locked and we couldn’t go inside. But, based on what I have heard about the actual theater – that happens to be showing the PG film “Central Intelligence” now (see photo) – it’s very much like a Broadway theater with a big screen set up on the stage to show the Guantanamo Bay feed.

Fourth, Professor Edwards was able to brief me on the status of the Khalid Shaikh Mohammad 9/11 hearings, the substance of some of the upcoming motion hearings that I had hoped to observe today, other cases pending for trial, and the one convicted detainee who is awaiting sentencing.  He also briefed me on the Periodic Review Board (PRB) that he observed at the Pentagon on Thursday the 14th, in which a Libyan detainee asked the Board to send him back to Libya or to a third country for resettlement. That PRB observation is through the IU McKinney Periodic Review Board Project.

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

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

Another shot in front of the Post Theater

Conclusion

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

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

By Andrew (Andy) Klein

Dean & Beam Professor of Law

Indiana University McKinney School of Law

Posted by George Edwards on behalf of Dean Klein

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Indiana Law Dean Travels to Ft. Meade for Guantanamo Bay, Cuba Hearings

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

Dean Klein (right) and Professor Edwards at the Ft. Meade Commissary.

Andy Klein, dean of the Indiana University McKinney School of Law, traveled to Ft. Meade, Maryland to observe war crimes hearings broadcast live from Guantanamo Bay, Cuba. Dean Klein was an official Non-Governmental Organization (NGO) Observer, sponsored by IU McKinney’s Military Commission Observation Project (MCOP), that was founded by Professor George Edwards, who joined Dean Klein on this observation mission.

The Pentagon granted the IU McKinney project permission to send IU McKinney Affiliates — students, faculty, staff, and graduates — to Guantanamo Bay to view proceedings live and to Ft. Meade to view via secure video feed. Dean Klein is the most recent of the dozens of IU McKinney Affiliates selected for observation missions, during which they attend, observe, analyze, critique and report on these hearings.

Klein & Edwards at Ft. Meade Post Theater -- 18 July 2016

Dean Klein & Professor Edwards at Ft. Meade’s Post Theater, where war crimes hearings from Guantanamo Bay are viewed during the day, and “Central Intelligence” and other movies are viewed at night.

This week’s pre-trial hearings, scheduled for 18 – 22 July, are in the criminal case against five alleged masterminds of and participants in the 9/11 attacks on the World Trade Center and Pentagon. They include Khalid Shaik Mohammed, who is the alleged chief architect of the 9/11 attacks, along with four others including alleged would-be hijackers who were prevented from participating due to visa denials and other reasons, men who allegedly transferred money for the flight training for hijackers, and men who otherwise assisted in the plot that resulted in almost 3,000 dead. Their charges include murder in violation of the laws of war and hijacking.

Typically, first time NGO Observers, such as Dean Klein, stop at the Ft. Meade Visitor Center to gain clearance and then pick up a badge to enter the base.

Dean Klein noted that though they arrived early to pick up his badge they had “quite a wait, made longer because they didn’t have my original paperwork submitted weeks ago and I had to re-register on the spot. Also, there were dozens of other people also seeking to get badges. Fortunately Professor Edwards already had his permanent Ft. Meade badge, which made it easier for me to get processed in.”

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

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

After the badging process, NGO Observers then travel to the base’s secure viewing site, which has been the Post Theater (that also shows feature films on weekends), but is shifting to the McGill Training Center, also on the base.

When Dean Klein and Professor Edwards arrived at the viewing center, it was confirmed that the military judge presiding over the 9/11 case had decided that today’s hearings would be “closed”, meaning that NGOs Observers were not permitted to observe.  Both Dean Klein and Professor Edwards noted that despite the absence of an open hearing, the pair had a productive morning at Ft. Meade.

Dean Klein said “I was disappointed that today’s hearings were closed. But, coming to Ft. Meade has offered great insights into our Military Commission Observation Project, and the contributions of IU McKinney on the topic of rights and interests of all Guantanamo Bay stakeholders. Our trip to Ft. Meade was very worthwhile.”

Professor Edwards said “If the hearings had been open, Dean Klein and I would not have been able to tour facilities that would have been unavailable during an open session, and we would not have been able to talk with people who would have been otherwise engaged during an open hearing. Our behind-the-scenes experience at Ft. Meade was enlightening, and would not have been possible had we been watching video feed from Guantanamo that day”.

All IU McKinney Observers contribute to the Guantanamo Bay Fair Trial Manual, of which Professor Edwards is the main author, that provides significant information — general and basic, as well as highly specialized information — about the military commissions. The Manual also contains information about Guantanamo Bay Periodic Review Boards, special proceedings held at Guantanamo Bay and viewable on video at the Pentagon, during which Guantanamo detainees may request repatriation to their home country or resettlement in a third country.

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

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

The Manual summarizes the applicable law, explains the charges, identifies the individuals and entities who have rights and interests associated with the tribunal, describes a plan that Observes might follow as they carry out their observation mission, and even provides a chart of a who’s who in the courtroom.

Dean Klein said: The Manual is a must read for anyone interested in Guantanamo Bay hearings, and a special must read for anyone doing an Observation mission to Ft. Meade or Guantanamo Bay.”

Dean Klein summarized his Ft. Meade experience, and his recognition of Professor Edwards and his Guantanamo Bay work:

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

Professor Edwards noted that “every IU McKinney Affiliate – faculty, staff, student, graduate — is invited to register for the possibility of undertaking an Observer mission to Ft. Meade, or to Guantanamo Bay, Cuba, itself.  Details about this process can be found on the IU McKinney website. We hope that our Affiliates may also be able to observe Periodic Review Boards at the Pentagon, and we will post notices if Pentagon observation opportunities become available to assist out Periodic Review Board Project”.

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

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

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

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

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

May 30 2016 9/11 Hearing

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

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

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

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

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

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

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

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

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

 

Witnesses

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

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

Abu Zubaydah

Abu Zubaydah

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

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

 

Late start to hearings

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

A Brief Overview of Some of the Hearings on the Motions

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

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

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

David Nevin and KSM

David Nevin and KSM

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

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

Backs of tents where NGOs live at Camp Justice.

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

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

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

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

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

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

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

My Personal Observations

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

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

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

Unrelated Personal Observation

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

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

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

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

 

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

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

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

In a few days, I will travel to Ft. Meade in Maryland to observe, analyze, and report on the upcoming hearings for Khalid Shaik Mohammad and 4 other alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. The U.S. Government has alleged that Mohammed was the “principal architect of the 9/11 attacks”, as reported by the 9/11 commission report. While at Ft. Meade, I will be viewing a secure live feed that links directly to  Guantanamo Bay, Cuba, where the defendants have been detained since at least 2006.

My role with the MCOP

I have been participating in the IU McKinney School of Law’s Military Commission Observation Project (MCOP) program for over a year now. I have had the opportunity to research on our Guantanamo Bay Fair Trial Manual which observers and others can use to help them ascertain whether the rights and interests of all stakeholders have been afforded to them. The Manual examines rights and interests not only of the defendants, but also of the prosecution,  victims and their families, the media, observers / monitors, and others.

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

Who am I?

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

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

Next week’s hearings

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

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

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

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

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

Ft. Meade # 1 of 4

Right to left — Mr. Tex Boonjue, Ms. Hee Jong Choi, and me. We’re standing in front of the Post Theater at Ft. Meade.

I was at Ft. Meade, Maryland today to monitor hearings in the Guantanamo Bay Military Commission case against an alleged high-ranking al Qaeda member, Hadi al Iraqi. Hadi faces war crimes charges in the court, located in a remote area of Cuba. The U.S. military broadcasts the hearings live to a Ft. Meade base movie theater (the Post Theater) via a secure video-link.

Indiana students at Ft. Meade

I was joined by two Indiana University McKinney School of Law students, both of whom have strong interests in human rights and international criminal law. They are both representatives of Indiana’s Military Commission Observation Project (MCOP).

Ms. Hee Jong Choi is a rising third year student who is an intern in Indiana’s Program in International Human Rights Law. She has been working on North Korean human rights issues, while she was based in South Korea for the first half of the summer, and while based in Washington, DC at an NGO (HRNK – The Committee for Human Rights in North Korea) for the second half of the summer.

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

Fort Meade's Post Theater is screening Guantanamo Bay war crimes hearings during the day, and San Andreas in the evenings.

Fort Meade’s Post Theater is screening Guantanamo Bay war crimes hearings during the day, and San Andreas in the evenings.

Defendant’s opportunity to speak today – Conflict of interest

Today’s hearings were notable, in that the defendant had an opportunity to speak more than defendants typically speak at military commission hearings. Typically, at the beginning of a hearing week, the military judge will ask the defendant whether the defendant understands his rights. The judge lists our numerous rights, and the defendant is given a chance to answer as to his understanding of those rights. Generally, after that, the lawyers do the rest of the talking, along with the judge.

Today, an issue was presented regarding the possibility that the lawyer who represented Hadi for a year may have a conflict of interest that could have a negative impact on Hadi. The judge asked Hadi series of questions, in open court on the record, and Hadi replied. Hadi and the judge entered into a discussion about these issues.

Hearings suspended, again

Ultimately, due to questions concerning the possible conflict, the judge suspended the hearings, indefinitely.

The hearings for July 2015 had been scheduled for two weeks, beginning Monday, 20 July. The night before, this conflict issue was raised in special conference, and the judge postponed the hearings until today, Wednesday the 22nd. Today, we had about 3 hours of court time, including the time that the defendant and the judge conversed, and including pauses and a long break.

The two weeks of hearings could be over as of lunch time today.

In the meantime, many dozens of people associated with the hearings boarded a plane this past Sunday at Andrews Air Force Base, bound for 2 weeks at Guantanamo Bay. The plane may be forced to return to Andrews more than a week early, with only 3 hours of court.

At the Ft. Meade Commissary today

At the Ft. Meade Commissary today

Who else was at Ft. Meade today?

Also in the Post Theater observing today’s hearings were 7 law student interns from the Office of the Chief Prosecutor of the Military Commissions, along with one of their supervisors, Major Chris Hartley (Army JAG, International Law Advisor). Two law student interns from the Human Rights First National Security section were present, as was another gentleman who did not identify himself. A DoD contractor was there to help ensure that no one brought cell phones into the Theater. And a technician and another administrator popped in from time to time to check up on things.

It was an early lunch day at Ft. Meade.

Greg Loyd, our Indiana McKinney representative who is in Guantanamo Bay this week, reported that there is plenty to keep him and observers busy down there, even with the hearings being suspended. He, and the rest of us, are spending time working on the Guantanamo Bay Fair Trial Manual.

George Edwards – Ft. Meade, Maryland

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

Stakeholders may vary across Guantanamo Bay proceedings – Hattie Harman

My upcoming mission to Guantanamo Bay

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…)

CLOSING COMMENTS – Al Nashiri – 7 AUGUST 2014 – MARGARET BAUMGARTNER (FT. MEADE)

Me (Margaret Baumgartner) and one of my favorite members of our armed services.

Me (Margaret Baumgartner) and one of my favorite members of our armed services.

Who Am I & What Did I Experience at Ft. Meade?

To put a face behind the name, I thought I’d include a picture of myself.  That handsome man beside me is my brother, who is part of the reason I’ve become interested in this project.  My other brother is still active duty but I want to preserve some of his anonymity since he is deploying again.  Thus, I didn’t include a picture of him (I’m not slighting him!!!).

With everything I’ve seen this week, I’ve gone through a wide range of emotions.  I wasn’t expecting that to occur.  I would walk into the hearing in the morning, feeling that the process in place was a fair one (I do believe in justice) and then I would leave feeling conflicted.  Nothing is black and white in this process.  For example, I expected the government would be the party slowing the process down to avoid a verdict as they’ve taken this long to bring charges.  Instead, it was the defense filing motion after motion and going off on tangents during arguments.  I also wasn’t sure what I expected in Mr. Nashiri.  From what the contractors said and my observations, he was very respectful (I’ve heard some of the 9-11 defendants are prone to outbursts).  There were no outbursts and his responses to questions were polite.  I did find it easy to keep an open mind throughout the process and I hope that in my posts, I’ve appeared neutral towards all parties and issues.

I have no career experience with international human rights law or criminal procedure.  In fact, with my career, I’ve never seen the inside of a court room (patent cases rarely, if ever, go to trial).  The only exposure I have to criminal procedure are the courses I took in law school (IU-McKinney School of Law, J.D. ’10) with Professor William Marsh.  Professor Marsh would periodically go down to Guantanamo Bay to advise detainees of their rights.  He would come back and detail his experience to us in the classroom.  This mostly included a trip down and his clients refusing to see him.  My interest was piqued by his chronicles (enough that I took two semesters of Criminal Procedure with him!).

Website Resources

The materials provided on this website have been a valuable resource to me.  Having limited knowledge of this area of law, I found myself able to get quickly up to speed.  I specifically like having everything in one place to download.  We were also provided with binders containing everything on the website.  I liked having the motions, conventions, and histories to flip through as I needed reference during the hearings.  If I found anything that might have been lacking, it would be biographies or summaries of the parties on the prosecution and the defense.

Another helpful item was a checklist that serves as a guide on what to look for and comment on during our observations.  I love lists (I get such joy from checking things off or filling out forms….that’s probably why I’m a patent attorney) and the questions in the list helped acquaint me with the defendant in greater detail.  The checklist itself is lengthy and encompasses the entire process.  I found myself flipping around to find questions relevant to the pre-trial process, but it was a fantastic resource.

Thoughts on the Process

Did I witness human rights violations?  Is the process fair?  There is no definitive answer that can be formulated with three observation days and not having access to ALL (including classified) information.  I believe that the length of time that Mr. Nashiri has had to wait to have his day in court would not be stood for if this occurred in a U.S. civilian court.  There would be all kinds of uproar in the media.  Yet, you don’t see headlines drawing attention to this. I also understand that information that is critical to our national security cannot be revealed, but conversely, defense counsel needs to be able to build an informed case.  I feel that this lack of information has contributed to the onslaught of motions and arguments (which is in turn slowing the pace).  They are trying everything they can to get something to stick given their limited resources.

I’m given the appearance that Mr. Nashiri is being treated with dignity during his detainment.  He seemed in good physical health at the trial.  He did not appear to be starving or sleep-deprived.  He seemed to be accorded his rights to attend proceedings.  I was concerned about Mr. Kammen’s comments that they are monitored by video when they meet with Mr. Nashiri.  A comment was also made that they thought the room also had audio surveillance.  A client has a right to attorney-client privilege and it makes me question if Mr. Nashiri is being given this right.  I am satisfied that Mr. Kammen is learned counsel given his experience.  He honestly seems to be giving his client his best effort and he appears genuinely concerned for his client.

Closing Thoughts

I highly encourage anyone who is qualified to attend as a representative to apply.  This program is a necessity to bring awareness to what is going on in Guantanamo Bay.  We need to keep an eye on what happens because it will affect how we are viewed by the rest of the international community.  Around D.C., there are signs posted in the metro that say “If you see something, say something”.  They are for reporting suspicious activity.  I think this phrase is pretty apt here as well.  Get the word out.

Hoosiers play integral roles in historic military commissions

gitmo-coin-15col - 4 June 2014

Indiana Justice Steven David holds a challenge coin he helped design while working at Guantanamo Bay as chief defense counsel. (IL Photo/ Marilyn Odendahl)

[This article is by Marilyn Odendahl and originally appeared on 4 June 2914 in The Indiana Lawyer at this link)]

The words Indianapolis attorney Richard Kammen used to describe the trials taking place at Guantanamo Bay are jarring – “legally grotesque situation,” “huge stain on American justice,” “secret expedient rigged justice.”

Then he noted the situation of alleged terrorists being put on trial for acts of terrorism and murder is not black and white. There is (more…)

Training to Monitor Trials at Guantanamo Bay

MCOP - Pre-Departure - 11 April 2014 - Classroom shot

IU McKinney Law Affiliates During Briefing to Monitor Guantanamo Bay trials. Some in the photo are members of Professor Edwards’ Spring 2014 International Law class that studied the international law aspects of the 9-11 attacks, other crimes, and jurisdiction to try such crimes.

Guantanamo Bay Briefing

This photo is the of  first group of Indiana University McKinney Law School Affiliates to be part of a Pre-Departure Briefing for monitoring US Military Commission hearings.

The Pentagon awarded IU McKinney’s Program in International Human Rights Law (PIHRL) special “NGO Observer Status” permitting the PIHRL (pronounced “Pearl”) to send IU McKinney Affiliates (students, faculty, staff and graduates) to monitor hearings at Guantanamo Bay, Cuba or at Ft. Meade, Maryland. The training of this first group took place in Indianapolis at the law school on Friday, 11 April 2014.

MCOP Briefing Book; Geneva Conventions

The MCOP Briefing Book — About 2000 pages on Military Commission law and practice. Participants were also provided copies of the 1949 Geneva Conventions and the Protocols Additional.

In the picture are four IU Affiliates who traveled to Ft. Meade in April for hearings in the 9-11 World Trade Center bombing case and the 2000 U.S.S. Cole bombing case. Also pictured are two IU Affiliates who traveled to Guantanamo Bay for hearings in both those cases in April.

Mr. Rick Kammen (center of photo with jeans and light top), who is a lawyer for defendant al Nashiri in the USS Cole Case, lectured on the history of U.S. Military Commissions, substantive and procedural law related to the Guantanamo Bay Military Commissions, litigation strategies, and the logistical difficulties associated with trying cases at a base on an island, away from the Mainland U.S.

Those pictured whose mission was to Ft. Meade are Jeffrey Kerner, Jeff Papa, and Hattie Harman.

Judge Pat Riley (Indiana Court of Appeals) is pictured behing Rick Kammen’s right shoulder.

Professor George Edwards (PIHRL Founding Director & MCOP Founding Director) appears at the far right of the photo.

Absent from the photo above are Jeff Meding (who was in Washington DC for his flight from Andrews Air Force Base to GTMO the next day) and Luke Bielawski, who went to Ft. Meade. Luke is in the photo below.

Briefing Book

Left to right: Luke Bielawski (Ft. Meade – USS Cole), Jeffrey Werner (Ft. Meade – 9-11), George Edwards (Ft. Meade – USS Cole; Guantanamo Bay – US v. David Hicks), Judge Patricia Riley (Guantanamo Bay – USS Cole), Jeff Papa (Ft. Meade – USS Cole) & Hattie Harman (Ft. Meade – 9-11). Absent is Jeff Meding (Guantanamo Bay – 9-11, who was en route to Andrews Air Force Base for his flight to GTMO)

Left to right: Luke Bielawski (Ft. Meade,  USS Cole), Jeffrey Werner (Ft. Meade, 9-11), George Edwards (Ft. Meade, USS Cole; Guantanamo Bay, US v David Hicks), Judge Patricia Riley (Guantanamo Bay, USS Cole), Jeff Papa (Ft. Meade, USS Cole) & Hattie Harman (Ft. Meade, 9-11). Absent is Jeff Meding (Guantanamo Bay, 9-11, who was en route to Andrews for his GTMO flight)

The  Pre-Departure Briefing Book of the MCOP was compiled by Mr. Jeff Meding, Ms. Qifan Wang, Ms. Kristin Brockett, and Professor George Edwards. For each cycle of hearings, a Supplementary Briefing Book will be prepared and distributed to all participants. A copy of our Briefing Book is now permanently housed in the NGO Observer Compound at Guantanamo Bay for subsequent McKinney Affiliates and others to use on their Missions to GTMO for hearings or trials.

Pre-Departure – Jeff Papa – Going to Ft. Meade for USS Cole Hearings

Going to Ft. Meade — USS Cole Case

I will be attending the Guantanamo Bay hearings that are being simultaneously broadcast from GTMO to at Ft. Meade, Maryland next Tuesday and Wednesday. I know very little about the details of these proceedings, other than many I learned from media reports and from good general information I learned from Andrew Northern in my National Security Law course.
Pre-Departure Briefing
Last Friday, we had the opportunity to participate in a Pre-Departure Mission before we set out for our respective sites, Guantanamo Bay for some, and for other like myself, Ft. Meade, Maryland.

We were fortunate to have as our primary Briefing Mr. Rick Kammen, who is an Indianapolis attorney, who is the death penalty counsel in the USS Cole case, which happens to be the case I will be monitorin.

Mr. Kammen described in a very compelling fashion over the course of a few hours the point of view of the defense team and many of the difficulties encountered. He also provided a great basis for critical thinking about the process, pro and con.

This opportunity was extremely valuable, and together with the very extensive briefing book prepared by Professor Edwards’ Program in International Human Rights Law (PIHRL), I believe I will have an outstanding basis from which to begin viewing and thinking about the proceedings next week.

_______