I traveled to Guantanamo Bay, Cuba from 11 to 18 November 2017 to observe military
Four other NGOs and I at Guantanamo’s Camp Justice that week
commission proceedings against Mr. al Nashiri, who is facing war crime charges as the alleged mastermind of the October 2000 bombing of the USS Cole that killed 17 U.S. sailors and wounded dozens more. I am a student at Indiana University McKinney School of Law, and I was a non-governmental organization (NGO) representative on behalf of McKinney’s Military Commission Observation Project. I was there to attend, observe, be observed, analyze, critique, and report on my experiences.
My Previous Guantanamo Observation
Lighthouse at Guantanamo
Court was in session four of the five days during my week at Guantanamo. Most of the witnesses were called by the prosecution to testify about evidence they had collected from the USS Cole after the bombing and to verify the chain of custody.
Some of the witnesses were called to testify about the ongoing professional responsibility issue in the case. The issue is complicated, and is discussed more in-depth here and here.
In brief, Mr. al Nashiri’s Learned Counsel (an attorney who is experienced in death penalty cases) and two other civilian attorneys for Mr. al Nashiri did not travel to Guantanamo Bay for hearings that week as they contended that the Chief Defense Counsel of the Military Commissions released them from representing Mr. al Nashiri for “good cause.” The Judge disagreed with the Chief Defense Counsel’s decision and held him in contempt for refusing to rescind his order to release counsel and for refusing to take the stand and testify about the issues. The Judge has asserted that these three defense counsel have “abandoned” Mr. al Nashiri.
In January 2018, the Judge ordered the prosecution to subpoena the three defense counsel and recommended that the remaining defense counsel, LT Piette, become “more comfortable handling capital matters” so that the case can continue forward. The case did arguably move forward in January, in the sense that hearings were held that month, with LT Piette sitting in the courtroom as the only lawyer representing Mr. al Nashiri.
The Judge is awaiting decisions from two federal district courts.
Now that time has passed since I observed Mr. al Nashiri’s proceedings I have had time
In front of the North East gate which separates the U.S. and Cuba
to reflect on his case, and on the military commission proceedings in general.
U.S. military commissions are not new, and in fact have been around since the Revolutionary War. Our current military commission process is guided by the Military Commission Act (MCA) of 2009, which built upon the MCA of 2006, which followed from an Executive Order signed by President Bush in 2001. The MCA of 2009 is the legal authority for this court-martial/federal criminal court hybrid, and a legal observer can see the qualities of both criminal processes present in these military commissions.
Guantanamo defendants and defendants in the U.S. are under law meant to be afforded due process, and all have the Constitutional right of habeas corpus. On the other hand, their trials are guided by two different, but similar, rules of evidence. Both courts-martial and military commissions are generally open proceedings, but both can be closed for classified sessions. Courts-martial and military commissions both have a panel of military members and are not a trial by a judge or with a civilian jury.
Reasons for Wanting to Return
Flying over Cuba
I hope to travel back to Guantanamo Bay, Cuba to either continue monitoring the commissions against Mr. al Nashiri, or to begin monitoring the commissions against Mr. Khalid Shaik Mohammad, also known as “KSM”, and his four co-defendants, also known as the “9/11 five.” I want to return to monitor the commissions against Mr. al Nashiri because I have observed his hearings in the past, and I have since been following his case.
I am also interested in observing the 9/11 five since the courtroom and military commission proceedings were designed to specifically try the 9/11 defendants. Further, I was in 2nd grade when 9/11 happened, and it is an event that I remember clearly and grew up learning about. It is an event that affected nearly everyone in the U.S. and beyond. In addition, 9/11 was a key event that changed how the U.S. combats terrorism and seeks to protect national security. I would be interested in observing and analyzing how the government is working towards those goals of counterterrorism and national security via the military commissions.
In addition to traveling to Guantanamo Bay, I would like to travel to Ft. Meade, Maryland, where the Guantanamo proceedings are broadcast by live CCTV to a secure room. This will offer me another perspective on the issue of openness and transparency of the proceedings, which is outlined in the MCA.
While I was observing the military commissions against Mr. al Nashiri in November
Camp Justice, where I lived with the other NGOs for the week
2017, I was taking courses in Counterterrorism, Evidence, Professional Responsibility, and Criminal Procedure: Investigation back at Indiana University McKinney School of Law. I found all these classes to be helpful in understanding what was happening in the courtroom. I believe I will now have an even fuller understanding of what is happening in the courtroom since I have completed those courses. I am now currently taking Military Law and Criminal Procedure: Adjudication. Considering the military commissions are essentially halfway between a court-martial and a federal criminal trial, all the mentioned classes are very helpful. I also greatly appreciate that I have the opportunity to observe what I am learning at McKinney in the real world.
Further, I would have the opportunity to achieve the goals of McKinney’s Military Commission Observation Project: to attend, observe, be observed, analyze, critique, and report on my experiences. I would be able to bring what I observed first-hand, critique and analyze it, and share it with the public via the Gitmo Observer.
Jessica Ayer (J.D. Candidate, ’19)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
The Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law nominated me, and the Pentagon confirmed me, to travel to Guantanamo Bay, Cuba to monitor U.S. Military Commission hearings in the case against Khalid Shaikh Mohammed and four other alleged masterminds of the 9/11 attacks.
This was my fourth scheduled trip as part of Indiana’s project, and my second trip to Guantanamo. I was originally scheduled to observe at the beginning of October in the case against Hadi al Iraqi, an alleged high-ranking member of al Qaeda, but as reported by Carol Rosenberg in the Miami Herald, the hearings were canceled due to a medical issue experienced by Hadi.
Breaking news concerning the case U.S. v. al Nashiri
A couple of days before we arrived at Guantanamo, we heard news that 3 members of the defense counsel for Mr. al Nashiri, who is charged in a separate death penalty case, were released from their defense roles by Brigadier General Baker, chief defense counsel. Mr. al Nashiri is accused of orchestrating the attack on the U.S.S. Cole in late 2000, killing 17 U.S. sailors.
The three members of the defense, including learned counsel Mr. Rick Kammen, quit earlier this month over a “secret ethical issue” that the defense claimed compromised attorney-client privacy. A learned counsel is an attorney with experience in capital cases, and whose representation and presence is a requirement for these proceedings. Today, judge Air Force Col. Vance Spath scheduled a contempt hearing to be held tomorrow Wednesday after the three members of the defense refused to appear at war court. Read more at the Miami Herald.
Arrival at Guantanamo
We arrived at Guantanamo on Saturday, 14 October and were immediately escorted to our lodgings where we quickly unpacked and began to settle in. That afternoon, our
Standing at the Camp Justice sign a few hours after arriving at Gitmo.
escort drove us to the Navy Exchange where we were able to stock up on snacks for the week, since our dining options are limited mostly to the galley (cafeteria food) or fast food (Subway, McDonald’s, Starbucks). We obtained our security badges and were instructed to wear any time we were home at Camp Justice.
Monday, 16 October
We entered the courtroom and were assigned seats in the gallery, which is separated from the courtroom by thick glass. There is a 40-second sound delay for the purposes of national security, where the judge is able to cut the feed to the gallery and the CCTV in case of accidental or otherwise classified discussion.
The hearings began promptly today with the defense counsel advising Judge Pohl that there were motions in the works to address the issue of possibly compromised meeting spaces after the developments concerning Mr. Kammen and the al Nashiri case came to light prior to the week’s hearings. Judge Pohl said he wasn’t certain that Brigadier General Baker has the authority to disband the trial team.
The defense also raised the issue of claims of lack of resources by the Joint Task Force (JTF) that directly affect the meetings between counsel and defendant. The Joint Task Force is in charge of the operations at Guantanamo, including detainee operation logistics and detainee transfer/supervision. Since the typical meeting spaces will likely be investigated after the developments in the al Nashiri case, the question concerned where the next most adequate space to meet with the defendants will be.
The defense raised a discovery issue — their ongoing request for Brady material. Brady refers to the case Brady v. Maryland, where the court held that the prosecution must turn over any evidence favorable to the defendant, or, exculpatory evidence (also known as “Brady material”). The Government responded that the defense has been provided with any material they (the Government) deemed relevant, and that the defense can request more discovery. The defense argued that the purpose of discovery is not to have to hunt for evidence. The Government referred to a “voluminous discovery” request by the defense, and said that the Government has no obligation to “spoon-feed” discovery to the defense.
The unofficial transcripts for Monday’s hearings may be found here.
Court recessed for lunch at around 1:00PM and the rest of the session was closed to observers.
Tuesday, 17 October
There was no court today, so the NGOs took the day to sightsee, relax, and catch up on work.
Wednesday, 18 October
The day began with news of government-seized attorney-client privileged material
The hearings resumed Wednesday morning, and started with the news that the JTF had seized the defendants’ laptops which the defense counsel argued contained attorney-client privileged material. Judge Pohl asked the Government to explain why the JTF seized the material. The Government stated that they were working on filing a response to what had occurred that morning and why.
The first motion was picked up from Monday at the end of the session concerning an issue of metadata that was brought by the defense. The defense argued that the prosecution turned over photographic evidence with all metadata stripped off. Metadata is the information that attaches to a digital photograph, including location, date, and time of the photograph, and depending on the sophistication of the equipment used, could even reveal the name of the person who took the photograph. The defense argued that such information is important to their case. The Government responded that the metadata was not relevant, and that the Government will seek to classify the information if the Judge orders that the government turn over metadata to the defense.
The defense also raised a motion to compel the Government to release information regarding certain torture sites, including information on the confinement buildings. The defense sought any architectural drawings, contracts, agreements, etc. pertaining to the buildings. The defense argued that prison architecture can typically reveal a lot about the conditions under which the detainees were held. The actual sites were destroyed or decommissioned, and the defense argued this information may help draw the picture of the conditions under which the defendants were held while at black sites around the world.
The Government responded that the defense could obtain this information from the defendants themselves, and that any information remaining on the black sites is classified “across the board”. The Government argued that while the information may be material to the defenses’ preparation, it is inapplicable to the case because the Government is not using building logistics in their case against the defendants.
The unofficial transcripts for Wednesday’s hearings may be found here.
The session ended late in the afternoon, at around 5PM. The gallery emptied at the close of session, but the NGO observers stayed behind to discuss the day’s events. During this time, we observed one of the four alleged war criminals rise and begin the Islamic Call to Prayer as the four other men stayed seated and continued discussion with their defense
Photo by Janet Hamlin of the five defendants in the KSM case in 2012. Source.
teams. Even though we had the thick glass separating us from where he was standing in the courtroom, we could still lightly hear the sound of the call. It was a surreal moment for the observers, and one I will never forget.
Thursday, 19 October
Today’s hearing was delayed by over an hour because of yesterday’s JTF seizure of the defendants’ laptops that contained attorney-client privileged material. The facts were somewhat unclear, but I believe that the laptops of four of the five defendants were seized as the defendants were on their way to court either the hearing or meeting with their counsel, and one of their materials was seized from the defendant’s cell. The Government noted that they will file notice with an explanation of why the seizure happened, and that the facts will justify the seizure.
This has been the third major seizure of attorney-client privileged material since this case started. The defense asked the judge for transparency in this process and the Government responded that they were filing a response as to what happened. Judge Pohl asked the Government to tell the courtroom what had happened, but the Government insisted that the judge would be interested in seeing the notice first.
The defense presented a list of over 100 potential witness. The defense mentioned the logistical issues that might arise with that high number of witnesses potentially coming to Guantanamo. This includes the issue of sufficient lodging, the threat to judicial independence if hearings are canceled and rescheduled, the fact that there is only one courtroom for all the current cases, scheduling conflicts for all parties involved, etc. The defense mentioned that resources are already an issue and affecting the military commission process.
Government invoked national security privilege during defense oral argument
Around half way through the defenses’ presentation on the proposed witness list, the Government quickly rose to address Judge Pohl and invoked the privilege of national security in regards to the presentation. From the observer standpoint, it seemed that the Government was invoking national security because of information found on the slides, which the judge confirmed with the defense had been sent through the appropriate review and declassification procedure prior to the hearing.
Judge Pohl issued a 10-minute recess so that the Government could figure out what the issue was. During the confusion, the obviously frustrated judge addressed the Government, “Now what do I do?”
The NGOs were allowed to remain in the gallery and we were able to observe the confusion in the courtroom.
Once court was reconvened, the Government requested more time. Judge Pohl inquired into what he deemed an arbitrary interruption to the proceedings and told the Government that there was no classified information in the presentation and therefore no reason to assert national security privilege. There was confusion because the Government did not continue to object to the defenses’ presentation, and the hearing was suddenly free to continue. Judge Pohl asked the Government if the defense was allowed to proceed, to which the Government replied that the defense may continue argument as planned.
The afternoon continued with oral argument on motions to compel the identities of witnesses who were only identified with pseudonyms, and also a motion to compel the location of black sites.
Towards the end of the day’s hearing, defense counsel brought up the seizure of the defendants’ laptops, seeking resolution. The defense claimed that there was no probable cause or even reasonable suspicion for the laptops to be seized. The Government’s position was that the laptops would not be returned and the Government would file more pleadings on the issue “in light of the circumstances described”.
Over 24 hours after the attorney-client privileged material was first seized by the JTF, Judge Pohl issued an order that the materials be secured with tamper-proof tape, and placed in a receptacle secured with the same.
The unofficial transcripts for Thursday’s hearings are not available.
A lot of questions came up during our NGO discussions throughout the week, mostly surrounding the seizure of attorney-client privileged material, the Government invoking national security privilege on declassified material, and also about the judge’s role in the
A look at the NGO Resource tent where the NGOs retreat to socialize and work after each hearing.
whole process. The defense seems to be strongly advocating for the interest of their clients, and going above and beyond in their duty to the rule of law and the constitutionally-bound process.
While I heard less from the government this week, it seems that they are ultimately interested in achieving justice, but hold a lot of control over the court (such as having the immediate ability to stop all discussion as happened at the hearing on Thursday, even though there was no classified material being discussed.)
My hope for these proceedings is that more Americans become interested and involved in something that a lot of people don’t even know is currently ongoing. Observation is difficult considering that the methods to watch these pre-trial hearings are severely limited, but there are great resources online from both media and NGO observers that members of the public may follow.
Even then, I noticed that the daily transcripts that the military commissions posts on the webpage at www.mc.mil are not complete, with some days missing hours’ worth of transcripts, and some days, such as Thursday, 19 October, missing completely from the website. Without observer and media reporting, the public would likely not know what happens are Guantanamo war court.
Sheila Willard (J.D. Candidate, ’18)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
I was selected to travel to Ft. Meade, Maryland to monitor U.S. Military Commission pre-trial hearings broadcast live via CCTV from Guantanamo Bay, Cuba to a secure Ft. Meade facility. I represented the Indiana University McKinney School of Law’s Military Commission Observation Project, which has been sending faculty, staff, students, and graduates to Guantanamo Bay and Ft. Meade to monitor these war crimes proceedings. The case I was dispatched to monitor was against Abd al-Rahim Hussein Muhammed Abdu al-Nashiri, who is alleged to have masterminded the 2000 attack on the U.S.S. Cole that killed 17 U.S. sailors, and wounded dozens more, off the coast of Yemen. I observed the hearings on October 18th and 19th.
Arriving at Ft. Meade
I arrived at Ft. Meade on Tuesday morning, October, 18 2016, and went to the base Visitor Center to pick up my badge that would permit me to enter the base. I encountered a slight delay there, as they could not locate my badge. After about fifteen minutes, one of the employees found the badge in a file on the front reception desk. She informed the other employee that all of the badges for the hearings are kept in a folder at the reception desk.
Note: If you arrive at the Ft. Meade Visitor Center and they can’t find your badge, ask if it is inside a folder at the reception desk!
After they found my badge, they took my photograph and handed me a paper badge that would allow me access to Ft. Meade for two days. The receptionist told me to exit through the left side of the parking lot and to proceed to the vehicle inspection area. After a brisk inspection of the vehicle, I was on the base and easily found the McGill Training Center, where the hearing would simultaneously broadcast from Guantanamo Bay, Cuba.
Justin at Ft. Meade Commissary
I parked in an apartment parking lot that is located across the street from the McGill Training Center. I made my way into the building and to the door of the viewing room, which was like a medium-sized high school classroom. The video feed was already being broadcast and there were four observers in the room, along with a person who I understand was a contractor hired to oversee the process.
In the back of the room is a big chest with individual small lockers where you can store cell phones. Knowing that cell phones were not allowed to be used in the room, I had left my cell phone in the rental car.
The video was clear, and the sound quality was generally good. At times the video feed or sound would cut out briefly but it was not often and generally only lasted for a couple minutes. The room was very cold both days. I would suggest that anyone observing hearings at the McGill Training Center to dress in layers and bring a light jacket.
al Nashiri Hearing Observations
I noticed that the prosecution’s military counsel, namely Chief Prosecutor Mr. Martins, wore a highly decorated uniform compared to the less decorated uniform of the Detailed Defense Counsel, Ms. Pollio. I have some concern that a jury may be influenced, whether consciously or subconsciously, into believing that Mr. Martin is more credible or knowledgeable because he is more highly decorated than Ms. Pollio. Although a jury may always form some judgment of an attorney’s capability or credibility by their appearance, attorneys in civilian courts do not display their achievements and accomplishments on their clothing. al Nashiri may be prejudiced by the prosecution counsel appearing to be a higher ranked and more qualified military member.
al Nashiri’s Presence in Court
al Nashiri was present for most of the court proceedings on October 18th and 19th.
However, al Nashiri was absent for a little over an hour of the hearing on October 18th. On October 18th, the court took a brief recess and when the court returned al Nashiri was absent. Mr. Kammen, the defendant’s civilian attorney, informed the court that al Nashiri was not feeling well and that he was in a backroom that had a video feed of the court. al Nashiri’s counsel confirmed with the court that he voluntarily absented himself from the court proceedings.
The prosecution said that there was an issue with al Nashiri’s absence because there had been no in court waiver. Specifically, Mr. Martin asked the judge to bring al Nashiri back to the courtroom until there was an in court waiver. The judge said that he was comfortable with al Nashiri’s absence from the court because al Nashiri’s counsel, Mr. Kammen, had spoken with al Nashiri and the absence was going to be brief (approximately thirty minutes). The judge made a finding that al Nashiri voluntarily removed himself from the court proceedings. The hearing went for another thirty minutes or so and then the court took recess for lunch. After the lunch recess, Al Nashiri was back in the courtroom and the judge questioned him regarding his prior absence from the court. al Nashiri confirmed that he was previously not feeling well and that he had voluntarily left the proceedings.
I felt that the judge made great strides to ensure that the record clearly reflected al Nashiri’s absence being voluntary and uncoerced. However, I do feel that the process would be more transparent if the video feed showed al Nashiri more often. Because the video was generally either showing the lectern or the judge, al Nashiri was not seen on the video very often. I would estimate that over the course of the two days I was in Ft. Meade, I saw al Nashiri on the video feed for a total of approximately ten minutes. I would have preferred a split screen that showed whoever was speaking and also showed the defense table. I think the public would benefit from being able to see that al Nashiri was present and engaged in his trial.
I hope we are not arguing about parking spaces
During most of the October 18th and 19th hearings, the days were spent hearing arguments regarding the defense’s claim that the prosecution may have attempted to unlawfully influence the Court of Military Commissions Review (“CMCR”). The defense had filed a motion to compel the prosecution to release all ex parte communications. The prosecution had put together a binder of emails, which they voluntarily provided to the judge for him to perform an in-camera review. The prosecution claimed that the emails were administrative in nature and non-discoverable. The prosecution further claimed privilege and judicial privilege for the emails. The judge informed the parties that the only emails at issue were two email chains–-exhibits 355e tabs 3 and 10. The judge stated “wouldn’t it be better for the public trust to hand them to the defense.” The judge said that he was keeping the public trust in mind. Many times throughout the hearing the judge asked if this was really something they wanted to spend time arguing about. It appeared to me that that judge thought that the two emails chains were not something that the court should be spending two days hearing arguments about.
The defense’s position was that the emails must be relevant and important because the prosecution was fighting so hard to keep them out of the defense’s hands. The prosecution seemed to be arguing that it was more about principle and that they were not legally required to turn the emails over. In this respect it appeared that the prosecution was less concerned with the public’s interest in having an open hearing. Although, the prosecution did argue that it was better for the public’s trust in the proceedings to follow the law and not turn over emails that are not discoverable. Mr. Kammen retorted by stating that secrecy destroys the public’s confidence, especially in a court where the rules are constantly changing. Mr. Kammen closed the defense’s argument by saying that he hoped that they had not spent all day arguing about emails that were related to where the prosecution was supposed to park.
The judge granted the motion, but only as to exhibit 355e tabs 3 and 10. The judge stated that one tab is about parking and the other tab is an administrative discussion about who is going to do a security review. The remainder of the discovery request was not granted and will stay under seal in the record. The judge appeared to be annoyed that two days had been spent arguing over emails that were administrative and generally unimportant. The judge stated that the emails are not privileged and not discoverable. However, because the prosecution had voluntarily provided them to the judge for an in-camera review, he was obligated to make a decision on them.
After the decision, Mr. Martin basically stated that he did not think that the judge had the authority to order the government to turn over the emails. The judge retorted that he was confident that he had the authority. The judge informed Mr. Martin that he had made a decision and had the authority to do so. He told Mr. Martin that the court was about to take a recess for lunch and that Mr. Martin should turn the emails over to the defense during the recess. The judge also told the defense counsel to think about what remedy they would ask for in case the prosecution did not turn over the emails. After the court returned from lunch, the prosecution turned over the exhibits 355e tabs 3 and 10, although Mr. Martin continued to argue that he did not believe that the government was required to do so.
I understand the need to follow the law. In this case, considering that the prosecution had voluntarily provided the emails to the court, I think it was proper to release them. If the emails were not released, it would have seriously eroded my confidence that the emails were only administrative in nature. The prosecution fought very hard to keep the emails out of the defense’s hands, and it seemed to me that the emails likely contained ex parte communication that was not just administrative. I was somewhat surprised when Mr. Martin agreed to turn over the emails after the lunch recess. However, his doing so made me feel that the proceedings were more transparent and that the prosecution was not concealing unlawful ex parte communications.
Repeated Defense Counsel Complaints
Unlike an Article Three court, the defense cannot simply call anyway witnesses that they would like to question. Mr. Kammen repeatedly stated that the prosecution must approve of any witness that the defense wishes to call. If a person’s testimony was going to be severely adverse to the prosecution, it appears, according to Mr. Kammen’s argument, that the prosecution could deny the defense the opportunity to call that person as a witness. This seems very unfair and it would certainly hinder the defense counsel’s ability to properly defend al Nashiri. Additionally, the ability to keep relevant witnesses out of the courtroom significantly hurts the transparency of the proceedings. If the Commission wishes to have transparent proceedings, all relevant witnesses should be allowed to testify. This is the only way to ensure that the proceedings will result in a just outcome.
Another claim by the defense is that al Nashiri’s housing during the hearings is inadequate. The defense wants to call two witnesses, both are employees at Guantanamo Bay, but the prosecution is not allowing them to call the witnesses. At the same time, the prosecution is stating that the defense has the burden to prove the claim. al Nashiri’s defense counsel, Mr. Kammen, complained that it is unfair for him to have the burden to prove a claim but not have the ability to call the witnesses that he needs in order to prove the claim.
At the end of the day, I feel that the judge was working hard to get past some of the petty arguments raised by both sides. He came across as being very aware that the process needed to be as transparent as possible. However, the case does not appear to be close to actually going to trial yet. Considering that this case has been going on for 16 years, there has to be a way for the Commission to act more efficiently, while also serving justice in a fair and transparent manner.
For those who are interested in being an observer, I highly encourage you to apply. The IU McKinney Military Commission Observation Project is a unique opportunity and has been designed to get observers up to speed quickly. I found that the Guantanamo Bay Fair Trial Manual was very helpful for gaining an understanding of the proceedings and the background information necessary to understand the hearings.
Justin W. Jones, J.D. Candidate (2018)
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law
Indiana University Robert H. McKinney School of Law
9 NGO representatives following briefing by Guantanamo Bay Chief Prosecutor Mark Martins
Non-governmental organizations (NGOs) fly to Guantanamo Bay, Cuba for ringside seats at U.S. Military Commission war crimes proceedings. NGOs, which tend to focus on human rights issues, attend, observe, analyze, critique and report on what they see and hear at Guantanamo. NGOs are windows to the outside world for people without Guantanamo access.
For the first time in recent memory, this week NGOs at Guantanamo had separate briefings by each of the three sets of lawyers involved with a pending case against a particular defendant.
The 9 NGO representatives present were briefed by: (a) the Chief Prosecutor; (b) the Chief Defense Lawyer; and (c) the military and civilian lawyers for al Nashiri, who is accused of masterminding the 2000 bombing of the U.S.S. Cole off the coast of Yemen, killing 17 U.S. sailors and wounding dozens. The NGOs were at Guantanamo for a week of pre-trial hearings in the case of al Nashiri, who faces the death penalty.
The first lawyers’ briefing of the week was by Chief Prosecutor Brigadier General Mark Martins, who is responsible for the prosecution of any and all Guantanamo Bay detainees. He is formally part of the prosecution team against all defendants, including al Nashiri, and he actively participated at the prosecution table in this week’s hearings.
9 NGO representatives following briefing by Guantanamo Bay Chief Defense Counsel John Baker and Deputy Chief Defense Counsel Brent Filbert
NGOs with al Nashiri’s Learned Counsel Rick Kammen and military co-counsel Lt. Commander Jennifer Pollio.
These briefings offered the 9 NGOs insights into a range of perspectives on Guantanamo law and practice. The NGOs on this mission, who agreed that these briefings were insightful and very helpful, expressed hope that the NGO briefings would continue when future NGO representatives travel to Guantanamo for future hearings.
Substance of the briefings
Predictably, the three briefings focused on similar issues. Military Commission fairness (or not). Compliance with U.S. and international law (or not). Transparency of the process (or not). Rights afforded to all stakeholders (or not). Comparisons among U.S. federal criminal law and criminal procedure, the Uniform Code of Military Justice (UCMJ), and the Military Commission substantive and procedural statute, regulations and rules (favorable / unfavorable comparisons).
The lawyers expressed different perspectives on the pace of the proceedings, to whom delays should be attributable, and logistical and other issues regarding trials at Guantanamo Bay versus on the U.S. mainland. They also shared on more personal issues, such as their careers and families, and possibilities for life for the lawyers after Guantanamo. And yes, the topics of Guantanamo iguanas, banana rats, gnats and mosquitos came up.
None of the briefings was on the record, and of course none included any classified information. All the briefings helped NGOs understand critically important matters related to the case at bar – against al Nashiri – and about larger Guantanamo-related issues.
Briefing Style; Briefing Tools
Each of the briefings differed from the others. Each lawyer had a unique personal style, had particular messages they apparently wanted to convey, and used different means to communicate with the NGOS — including visual aids.
Briefing tools used during the week included (without disclosing which lawyers used which briefing tools!): CDs that contain papers for motions on the week’s docket; basic Military Commission instruments and other information projected onto a screen and a staffer to navigate such; CD readers for NGOs whose new generation laptops lack CD drives; prepared remarks; a scribe to record briefing notes; e-mail addresses and invitations for further NGO communication; a follow-up invitation to a bar-b-que (that served Subway sandwiches!); and a staffer who served as photographer for group and individual shots of the lawyers and the NGO representatives.
[Sidebar – The NGO representatives came into contact with various members of the lawyers’ staffs. In every instance those staff members were helpful, informative, and genuinely interested in assisting the NGOs. And, without exception, each staffer was friendly, pleasant, and just nice — both formally during the briefing, and informally when we would bump into them around the Guantanamo Bay Naval Station, whether at Subway or another restaurant, the gym, the bowling alley, or the Guantanamo airport or Andrews Air Force Base.]
NGOs huddled during the week seeking to think of ways that the lawyers might further enhance the NGO experiences. Among the NGO suggestions were for the lawyers to provide NGOs — before the NGOs depart for Guantanamo Bay — a short summary of the week’s expected motions, the statutory and other information on the CD that was provided, statements / remarks to be presented by the lawyers to the media (if available), and confirmation that the briefing will take place (to prevent NGOs from having to inquire as to whether a particular briefing will occur).
Some of the NGOs wondered about the venues of the different briefings, and who decided which briefings were held in which venue.
Venue 1: The Media Operations Center (MOC), in a room with cushioned chairs, a blue velvet stage curtain, high tech audio / visual equipment, and parasol shades for camera lighting.
Venue 2: The NGO Resource Center, barren, with the lawyers sitting on folding card-table chairs.
The NGOs unanimously agreed that the NGO briefings by all sets of lawyers were very helpful to the NGOs as they seek to fulfill their remit of attending, observing, analyzing, critiquing and reporting on the U.S. Military Commissions.
If NGOs are to be the eyes and ears to the outside world, they should be able to see and hear from the lawyers who are most intimately involved with the Guantanamo Bay cases. The NGOs all hope that briefings by all sets of lawyers will become routine at Guantanamo Bay during weeks when hearings or trials are held.
Full NGO briefings by Guantanamo Bay lawyers promote transparency, human rights, and the rule of law.
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)
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.
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.
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 — 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, 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 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 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.
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.
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
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)
Military tribunals for some accused of terrorist attacks on the United States are held at Camp Justice at Guantanamo Bay. (Photo by Catherine Lemmer, IU McKinney School of Law)
The Indiana Lawyer published the following article by Marilyn Odendahl on 25 February 2015. Text and photos are in the original article.
IU McKinney Gitmo Observers Illuminate Murky Proceedings in Gitmo Trials
by. Marilyn Odendahl (25 February 2015)
The U.S. Military Commission Observation Project overseen by Indiana University Robert H. McKinney School of Law is continuing to send individuals to watch and report on the accused terrorists’ trials being held at Guantanamo Bay. Blog posts and articles from the observers chronicle the glacial pace of the proceedings, the unexpected courtroom twists and the nagging constitutional questions.
Professor George Edwards
The project regularly sends faculty, students and alumni to either Guantanamo Bay or Fort Meade in Maryland to observe the tribunals. Professor George Edwards, founder and director of the project, explained the work of the observers is not to address the political issues or comment on the substance of the military commissions.
“We’re interested in seeking to assess whether the stakeholders are receiving the rights and interests that are afforded to them,” Edwards said. “(Those rights) include the right to a fair hearing, the right to an independent tribunal, the right to trial without undue delay.”
He pointed out the observers also are looking at the stakes that the victims of the terrorists attacks and their families have in the proceedings. What about their rights to have access to the trials, to make statements, to confront and to have closure?
Professor Catherine Lemmer
IU McKinney librarian Catherine Lemmer, who Edwards described as instrumental in helping to build the observation program, heard some victims’ voices when she traveled to Guantanamo Bay for the hearings of the alleged co-conspirators of the Sept. 11, 2001, attacks.
One man said he was attending the proceedings to remind the judge and attorneys that planes had flown into the twin towers of the World Trade Center and the Pentagon. A mother of a fallen firefighter said she was struggling to hang on to her opposition to the death penalty, but she believed the trials had to be fair because the United States would be judged by how it handles the detainees.
The project drew praise from panelists who participated in a recent forum at the law school examining the tribunals. Hosted by the Indiana International & Comparative Law Review, the symposium brought together legal scholars from IU McKinney and around the country to discuss whether the end is coming for Guantanamo Bay or if the practice of international criminal law has reached a turning point.
An IU McKinney symposium examined trials at Guantanamo Bay. Panelists included (from left): Richard Kammen, Kammen & Moudy; Shahram Dana, The John Marshall Law School; George Edwards, IU McKinney; and Paul Babcock, editor-in-chief of the Indiana International & Comparative Law Review. Chris Jenks of Southern Methodist University Dedman School of Law participated via video link. (Photo by Dave Jaynes, courtesy of IU McKinney Law)
Two participants – Shahram Dana, associate professor at The John Marshall Law School and Chris Jenks, assistant professor at Southern Methodist University Dedman School of Law – on the second panel discussion both noted IU McKinney’s effort in documenting the proceedings at Guantanamo Bay is shining a light on America’s response to terrorism and will be an invaluable resource for history.
Lemmer advocates for the proceedings to be shown on C-SPAN. The American public should see for themselves, she said, so they form their own opinions. By seeing what is happening in that courtroom, she said it is easy to realize how things could go wrong.
“The role of the attorneys, our role (as citizens) is to hold fast to the Constitution when really bad things happen and everybody wants to step over it,” Lemmer said. “Ultimately, the price we pay for not doing it right is incredible. This is our Constitution and it is getting overwhelmed, which should not happen.”
Lemmer took her first trip to Guantanamo Bay in December 2014. However, the proceedings were derailed by the ongoing revelations that the Federal Bureau of Investigation may have infiltrated the defense teams. The FBI is accused of listening to defense attorneys’ meetings with their clients and reviewing their correspondence as well as attempting to turn legal team members into informants.
When she returned in early February 2015, the FBI conflict-of-interest issue was still being argued. Then unexpectedly, Ramzi Bin al-Shibh, one of the defendants in the courtroom, said he recognized his interpreter as someone he encountered during the period he was held at one of the Central Intelligence Agency’s secret prisons. Another defendant told his attorney he also remembered the interpreter from the black site.
“It became very surreal,” she said.
To Indianapolis defense attorney Richard Kammen, the confusion and conundrums that swirl around Guantanamo Bay could be resolved by moving the proceedings to federal court. Kammen, lead counsel for USS Cole bombing suspect Abd al-Rahmin al-Nashiri, pointed to the hearings of accused Boston Marathon bomber Dzhokhar Tsarnaev as an example that U.S. courts can handle high-profile terrorism cases.
“There’re so many more moving parts down there than there would be in federal court, so things just get more messed up,” he said.
Currently, Kammen and his defense team are tangling with the federal government to release the details of the treatment of al-Nashiri while he was kept in a black site. The release of the CIA Torture Report publicly confirmed that the defendant had been physically, psychologically and sexually tortured, but Kammen said the defense still needs details of what was done and when.
Professor Tom Wilson
IU McKinney professor Lloyd “Tom” Wilson is scheduled to observe the al-Nashiri proceedings during his first trip to Guantanamo Bay. The task of watching and relaying what is happening will be difficult, he said, because he will be seeing just a snapshot of a long, complex and secretive process.
Wilson was careful in his preparation for the trip, not wanting to form any preconceived ideas or prejudices before he arrived in the courtroom. He is going out of a sense of civic duty and to understand the situation better than he does now.
Still, the proceedings are not easy to comprehend and continue to spark debate many miles away from the detention camp.
As part of his remarks during the IU McKinney symposium, Kammen described Guantanamo Bay as a “law-free zone.”
Co-panelist Jenks countered that characterization, arguing traditional rules governing the treatment of prisoners of war have been upended by terrorism. In previous conflicts, nation states battled each other but now the United States is fighting against groups that are unconnected with any organized government or country. Even so, he continued, the detainees at Guantanamo Bay have a right to counsel and are being given a trial.
Kammen responded that even if his client is acquitted, he will not be released.
“That,” Kammen said, “is a law-free zone.”
The original Indiana Lawyer article can be found here: http://www.theindianalawyer.com/iu-mckinney-gitmo-observers-illuminate-murky-proceedings-in-gitmo-trials/PARAMS/article/36436
9/11 lead defendant Khalid Shaik Mohammad (KSM), in the Guantanamo Bay courtroom. KSM was waterboarded 183 times in 2003.* (Sketch by Janet Hamlin)
I am scheduled to monitor Guantanamo Bay military commission proceedings 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).
First, I will travel to Ft. Meade, Maryland, where Guantanamo Bay courtroom proceedings are simultaneously transmitted by secure video link. Then, I will travel to Guantanamo Bay, Cuba, where I will be in the courtroom itself, with the judges, defense, prosecutors, media, victims and their families, and the 5 defendants. These hearings, scheduled for 9 – 21 February 2014, will address pre-trial legal issues. The trials may not begin until 2016 or later.
Monitoring Guantanamo Bay trials
The Pentagon has said it wants military commissions to be open and transparent. They want Guantanamo Bay trials to be fair, and they want independent outsiders to monitor the proceedings and assess this fairness. This is consistent with the U.S. statutory requirement that these proceedings shall be publicly held, and that they operate in accordance with international and domestic law mandates for open and fair trials.
The Pentagon selected a handful of non-governmental organizations to send monitors to Guantanamo Bay. In 2014, the Pentagon granted NGO Observer status to the human rights program I had founded at Indiana University McKinney School of Law. I then founded our Military Commission Observation Project (MCOP), which has morphed into The Gitmo Observer.
Gitmo Observermissions include to attend, observer, analyze, critique and report on Guantanamo Bay proceedings. Numerous IU McKinney observers have traveled to Ft. Meade and Guantanamo Bay to monitor proceedings, and have published on their observations. Also we are publishing the Guantanamo Bay Fair Trial Manual, which examines rights and interests of all stakeholders of the proceedings. The Guantanamo defendants have rights and interests. But other stakeholders also have rights and interests. These stakeholders include the prosecution, victims and their families, witnesses, and the press. The Guantanamo Bay Fair Trial Manualidentifies the binding international and domestic law that provides for these rights and interests, and guides stakeholders as to which rights and interests they are entitled, and discusses enforcement and remedies.
Issues February 9/11 hearing
All the issues docketed for the February 9/11 hearings deal with stakeholder rights, principally pre-trial and trial rights of the defendants. They also include U.S. government rights related to national security, rights of female Guantanamo Bay guards to freedom from employment discrimination based on sex, and rights of the international community regarding U.S. compliance with international law.
Right to trial without undue delay (“inordinate” delays of the proceedings)
Rights related to mental competency of a defendant to stand trial
The right to counsel (right to not have the FBI interfere with a defendant’s defense team)
Conflict of interest rights
U.S. national security rights and interests
Access to information (discovery, classified information rights, use of information from undisclosed sources)
Rights of female guards to perform same duties as male guards regarding, for example, shackling and escorting defendants (employment discrimination)
Right to free exercise of religion (male Muslim defendants being touched by female guards)
Right to counsel (defendants not meeting with lawyers because of female guards touching them)
Right to trial by an independent tribunal (with no unlawful interference or influence)
Right to non-interference with professional judgment of the defense lawyers (right to counsel)
Rights related to torture and access to information (Senate report on torture)
Right to conditions of pre-trial confinement (including privacy rights, intrusive searches)
Right to access to the outside world (defendants’ telephonic access to families)
Right to facilities to prepare a defense (including access to computers)
Right to access to witnesses
A defendant’s right to access representatives of his government
Rights under the Geneva Conventions
Rights under the U.S. Constitution
The 26 January 2015 docketing order can be found here.
IU McKinney Affiliates traveling to Guantanamo Bay in February 2015
Professor Catherine Lemmer, IU McKinney School of Law
Catherine Lemmer, who is a lawyer and international librarian at the faculty of Indiana University McKinney School of Law and who has played instrumental roles in the development of the Gitmo Observer, 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 played instrumental roles as library liaison to the Gitmo Observer, and as a 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.
Tom Wilson, who is a lawyer and law professor at the IU McKinney School of Law, 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?
IU 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.
IU McKinney Law School Dean Andy Klein is expected to travel to Ft. Meade, Maryland to monitor military commission trials during the Spring 2015.
*Khalid Shaik Mohammad’s waterboarding is widely reported, including in the Miami Herald, which cites Justice Department and CIA reports
Professor George Edwards (left) with Chuck Dunlap, and IU McKinney graduate who traveled to Guantanamo Bay and Ft. Meade, sitting behind Guantanamo Bay Fair Trial Manuals Mr. Dunlap delivered to Guantanamo Bay (Fall 2014)
I begin assisting Professor George Edwards and the MCOP upon my return from South Africa in April 2014. I spent six months (September 2013 – April 2014) in Johannesburg as a Senior Fellow at the Legal Resources Centre of South Africa (LRC). The LRC is South Africa’s largest and oldest national public interest law organization. Established in 1979, the LRC lawyers challenged apartheid and played important roles in drafting the South African Constitution. In 1994, Nelson Mandela appointed LRC’s founder, Arthur Chaskalson, to serve as the first President of South Africa’s Constitutional Court. The LRC advances research and provides free legal services to the poor and vulnerable in the areas of land and housing rights, children’s rights and education, environmental justice, HIV/AIDS, health and social services, refugee matters, and women’s equality.
During my time with the LRC, I enjoyed many a brown bag lunch with George Bizos, an LRC lawyer. An internationally renowned South African human rights lawyer, George Bizos is credited with crafting the three words in Nelson Mandela’s statement during his 1964 treason trial which resulted in the imposition of life imprisonment rather than the death sentence. Upon learning that an American sat across the tea table from him the first time we met, George looked at me and said, “I have sympathy with his position but your President Obama has to shut down Guantanamo Bay.” The topic of Guantanamo Bay would come up often during the six months I spent at the LRC and my knowledge of what was happening and why at Guantanamo Bay would prove woeful in comparison to that of George Bizos. The MCOP provided a fortuitous opportunity to learn more about the military commission process at Guantanamo Bay upon my return to the States.
The 9-11 case / Khalid Shaik Mohammed case that I will monitor next week
I will be observing hearings with respect to the five 9-11 defendants: Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi.
Earlier this week Professor Edwards was able to confirm that the hearings will involve matters of guard gender, the FBI probe/conflict of counsel, and the hearing schedule for 2015.
My preparation for the hearings
Even though I have been involved with the MCOP project, I had and still have lots of preparation to do. I’ve reread parts of the Guantanamo Bay Fair Trial Observation Manual to better understand my obligations to observe and analyze the proceedings. I am also reading the many documents related to this matter that are hosted on the U.S. Office of Military Commissions website. This is a complex case with five defendants and five separate defense teams. As a result, I have also been reading biographical information on the Human Rights Watch and other sites to help me identify and keep separate each of the defendants. Later this week I am meeting with two other observers, Hattie Harmon and Chuck Dunlap, who have recently observed proceedings at Guantanamo Bay for advice and information.
Lecture by Gitmo Defense Counsel – Rick Kammen
I recently attended a lecture by Rick Kammen, the lead lawyer for al Nashiri in the USS Cole case. His presentation focused on the many systemic problems of the Guantanamo Bay military commissions. What was readily apparent from his presentation is that Americans as a whole don’t pay much attention to the activities of the military commissions. In addition to its critically important work to ensure fair and transparent trials for all the stakeholders, MCOP is equally important in that it offers opportunities for many of us to become involved and expand awareness in others.
Watching the press conference from the NGO lounge. Note the picture is of the GTMO courtroom that was used for the hearings.
After the hearings were over for the week in the al Nashiri case (4 – 7 November 2014), the prosecution and the defense teams held a brief press conference with the four media representatives who were with us at GTMO for the week.
Victims and Victims’ Families
During the press conference, the victims and their families had an opportunity to also speak to the media. When the victims and their families spoke it was a reminder of what this trial is all about and the 17 people that died on the USS Cole and the 39 wounded. During the hearings it is easy to get caught up in the “legal arguments” and the various details and tactics and lose sight of why we are here. For me, hearing the victims and their families at the press conference really made me re-focus on them and their experiences. In addition to the overall suffering that they have been through, the main point that they expressed was their frustration with the slowness of this process and their desire for there to be an end to this and to see justice done.
Last Days Events
NGO’s gather for a farewell cookout and a chance to reflect on the weeks events.
On the last days of the trip, we had an opportunity to do several things.
Time with Defense Team – Rick Kammen and defense lawyers
The NGOs spent an hour and a half with Rick Kammen and the defense team. They were extremely generous with their time and were able to answer many questions about the hearings we had observed.
Again, some of the overall themes from that meeting were similar to others; the incredibly difficult logistics and the high costs that result; the complicated issues associated with the case which are compounded with the issue of classified information; and also how politics at the highest levels impacts the trials. Speaking specifically to this last point, Rick talked about a time when the former leader of Yemen was in the United States to receive medical care and the defense team tried to depose him. The US State Department denied it due to their policy of not wanting to impose on foreign leaders in the US who are here for medical treatment.
Visit to Camp X-Ray
The NGOs also had an opportunity to visit Camp X-Ray, which is the outdoor detention facility where they held the detainees when they first arrived. We were not able to take photos of the site but we were able to see it. It is abandoned now but there is a federal court order in place to preserve it as evidence in some of these proceedings. Camp X-Ray was only used to house the detainees for a few months when they first arrived on the base because they didn’t have any other facilities to house them in at the time. Within a few months they were moved to more permanent structures indoors.
Another place NGOs were able to visit and tour was radio GTMO. The base has a radio station that broadcasts 3 channels on the base. They have an arrangement with Cuba so the signal is not broadcast into mainland Cuba. The radio station has one of the largest collections of vinyl records in the world with many being extremely rare and limited editions. The stations still plays the records on the air. One unfortunate fact is that due to the licensing rights from the record companies, if the records are taken out of circulation they must be sent back to the record companies where they would be destroyed. It’s crazy to think that some of these one of a kind records made especially for the military would be lost forever and destroyed but that is what is required due to the licensing rights.
Some of the one of a kind vinyl albums that Radio GITMO still plays
One of the last few stops was to the abandoned lighthouse on the edge of the base. One of the interesting things was the collection of old boats that was in the area which were used by people who fled Cuba or other areas to try and immigrate to the United States.
The abandoned lighthouse with some of the old boats that people used to defect to the base.
I want to thank Professor George Edwards and the Indiana University McKinney School of Law for allowing me to participate in this incredible experience. It is something I will remember forever and a trip that has given me so much information. There are so many things that I was not able to include in this blog but that I will try and address in other forums since one of the goals of the NGO program is for those that witness the process to tell others.
Chuck Dunlap lectures in Professor George Edwards’ International Criminal Law class. Students in the class have conducted research on fair trial rights to incorporate into the Guantanamo Bay Fair Trial Manual.
Days before his mission to the Guantanamo Bay Naval Station (GTMO), Charles (Chuck) Dunlap lectured about the Military Commission hearings he will monitor at the remote military outpost on behalf of the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law. Mr. Dunlap is scheduled to observe pre-trial hearings in the case against Abd al-Rahim al Nashiri, who is alleged to be a mastermind of the 2000 suicide attack on the U.S.S. Cole off the coast of Yemen. The attack killed 17 U.S. sailors and wounded several dozen.
The Military Commission Observation Program has been sending Indiana McKinney School of Law to monitor hearings at Guantanamo Bay and at Ft. Meade, Maryland, where the GTMO hearings are simultaneously video-cast on secure lines. The MCOP mission is for IU McKinney students, faculty, staff and graduates to attend, observer, analyze, critique, and report on pre-trial hearings and trials.
MCOP monitors are expected to use the Guantanamo Bay Fair Trial Manualas a tool to help them ascertain whether they believe that all Guantanamo Bay Stakeholders are receiving a fair trail. the Manual lists dozens of fair trial rights that are to be afforded to the prosecution, victims and victims families, the defendants, the press, security and other personnel who work with the prisoners and with the court, the U.S. public, and others.
IU McKinney Law Students Assist in Fair Trial Project
IU McKinney law students enrolled in Professor George Edwards’ International Criminal Law class have been conducting legal research that is being incorporated into the Guantanamo Bay Fair Trial Manuals. Mr. Duncan met with students in the class, lectured on issues to be raised during the al Nashiri hearings during his mission, and discussed with the students their research. Each student in the class has been assigned one or more specific fair trial rights to explore, and the students are examining the international law and domestic U.S. law that define the rights in the Guantanamo Bay context.
Mr. Dunlap traveled to Ft. Meade several months ago to monitor Guantanamo Bay hearings. The MCOP, which is also known as The Gitmo Observer, is part of the Indiana University McKinney School of Law Program in International Human Rights Law. Professor Edwards is the founder of the Program in International Human Rights Law, and the MCOP / Gitmo Observer.
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!).
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.
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.
Judge Spath presides over the al Nashiri USS Cole case.
After the NGO Observers had a quick lunch in the NGO Lounge, we returned to the courtroom for the continuation of the case against al Nashiri, an alleged mastermind of the USS Cole attack off the coast of Yemen that killed 17 U.S. Sailors and injured dozens more.
Judge fails to recuse himself.
Unsurprisingly, the first thing in the afternoon is Judge Spath’s denying the motion of recusal.
How many judges are on the case? Who is in charge?
The court move to motion AE305 dealing with another very strange situation.
Chief Judge Pohl presided over the al Nashiri case from its beginning, until last month when he detailed a successor, Judge Spath, to handle the case.
But Judge Pohl reserved his authority regarding some al Nashiri motions. The result is at this specific time, there are two military judges in charge.
The defense makes a textual interpretation of the Military Commission Act, which consistently use the singular form (‘a military judge’ and then ‘the military judge’). The defense wants Judge Spath to reconsider some prior motions Judge Pohl had ruled upon.
On the other side, the government does not have much trouble with that. The government is arguing that there is no actual overlap between the authority of Judge Pohl and Judge Spath.
Chief Judge Pohl originally presided over al Nashiri case.
Judge Spath asked whether he can issue order in contradiction with Judge Pohl’s former rulings. The answer would be yes. Then it just becomes more confusing since what would be the actual point for Judge Pohl to preserve this authority? The defense labels the potential impact on the court as ‘unlawful influence’, while the government rebuts as there is no prejudice shown.
It is somehow difficult for me to comment on this motion and these arguments. Just like lots of other motions or procedures, this is a unique situation and it’s foreseeably hard to find any reference or precedents. I agree that if any new fact or law occurred, a motion for reconsideration (more…)
al Nashiri, the alleged USS Cole attack mastermind, in the GTMO courtroom
My First GTMO Hearing
This is the very first hearing I’m participating in as an NGO Observer at GTMO. It is for the al Nashiri case against the person charged with being mastermind of the attack on the USS Cole in Yemen in 2000.
Moving to the GTMO Courtroom; Prosecutor Statement
We walked from our tents to the court. After strict security checks, the NGO team entered the gallery. The seats are assigned and we all sit on the left end of the room. It is said the families of the victims are on the left side. While we are waiting for the hearing, we learn that the Chief Prosecutor Brigadier General Mark Martins gave a statement yesterday afternoon. He made some brief remarks about the recent decision by the Court of Appeals for the DC Circuit, al Bahlul v. United States, upholding the conspiracy conviction and vacating the material support for terrorism and solicitation convictions. Also, he mentioned about the upcoming discussions about motions and orders around AE120AA. This is also among the main issues for this week’s hearings.
Inside the Court — The Hearings Begin
Before the hearing starts, the staff in the courtroom check with the interpreters whether the system works. The interpreters are obviously in another room, rather than being present in the courtroom. At about 9 a.m., the hearing starts on time. This is the first time that the Air Force Col. Judge Vance Spath appears for the week. The defendant, Mr. Al Nashiri is sitting in the courtroom, physically close to his learned counsel, Mr. Kammen. There is only one person sitting between them. I’m not sure who this person in the middle is, and suspect that he is the interpreter on the defense team. Mr. al Nashiri is wearing a white T shirt and looks in an (more…)
Sign at the GTMO Office of the Military Commissions Expeditionary Legal Complex
Arrival — NGO Observers Meet
Our flight from Andrews Air Force Base was delayed and we finally arrived at Guantanamo Bay around 2:45 p.m. on Sunday.
Soon the NGOs all met and we got familiar with each other and shared some ideas about the upcoming hearings in the al Nashiri case which we will be observing.
Motions of the Week
We have a copy of the docketing order and it lists some motions that will be heard. One of the emotions is about the issue of ex post facto. That is a defendant cannot be charged for behavior that happened before there was a law against it. Crimes cannot be made up and charged after the behavior happens. If the logic stands, all defendant’s conduct shall be barred from prosecution. On the government’s side there may be a necessity argument considering the gravity of the crime, the difficulties for investigation and collection of evidence, and so on.
At this moment I could not predict how the judge would rule or even explain this issue. The only impression I’m having is that it’s another hard decision to be made. We’ll see soon.
It was really easy to get onto base. Make sure that you veer off to the right at the main gate to the vehicle inspection station if you don’t have a DoD sticker. If you mess up and go straight, they are nice and just send you off a quick side ramp to the inspection station. Allow plenty of time for DC traffic if you are coming from town. It was terrible, even at 6 am. There are a couple of Starbucks within a short drive of the main gate off base. I’m a coffee nut and need my java in the mornings, so of course, I would figure out where the locations are.
Logistics: Post Theatre
There is parking at the Post Theatre (the Ft. Meade website said to park at Smallwood Hall and walk over, but it’s a distance in heels). I was an hour early. I had plenty of time to talk with the contractors working the Satellite feed. They are really friendly once they were confident I wasn’t a member of the media out to mis-quote them.
Tidbits from the Contractors
Apparently, the Court Room at GTMO is the most hi-tech in the world. I also learned that Mr. Kammen (defense counsel for al Nashiri) wears a kangaroo pin on his lapel as a protest to the court. A kangaroo court, for those unfamiliar with the term, is “a mock court in (more…)
The USS Cole after it was attacked by suicide bombers in October 2000 in Yemen. (Photo courtesy of United States Marine Corps)
(This article by Marilyn Odendahl was originally published on 4 June 2014 in The Indiana Lawyer at this link) Sitting in a hotel room, preparing to watch a video cast of a hearing with Abd al-Rahim al-Nashiri, one of the alleged masterminds behind the bombing of the USS Cole, Whitney Coffin considered the process of using military commissions to try suspected terrorists. “Before I actually see the hearing, my pre-impression is this is the best way to do it,” Coffin, a 2014 graduate of Indiana University Robert H. McKinney School of Law, said. “Some push to put this in federal courts, but what state is (more…)
Today’s hearing starts at approximately the same time as yesterday. Again, the court staff checks with the interpreter during preparation.
The first thing in the morning is Judge Spath commenting on AE305. He agrees that he would be the one ruling on the open motions. While he is going to do it on existing records, without extra hearings, unless the records are not enough to give a ruling. Then he mentions that the defense may file motions for reconsideration if there is any new fact occurrs. Next he comments on the resource issue discussed yesterday. Since there is no motion for that particularly, Judge Spath notices the defense that if they fail to get assistance from the Convening Authority, they may file motions to request in the court and the court would issue orders if necessary.
AE278 – Protocol for the Procedure of Execution
Then we move on to AE278, the defense’s motion to compel the Secretary of Defense to publish protocol for the procedure of execution. Recognizing the case is still in constructive/evidentiary phase, Mr. Kammen focuses on the impact of protocol upon the jury. He mentions that the jurors are military members, and ‘killing people is part of the bill’ for them. Thus it is highly possible that the way of execution, rather than execution itself would be determinative to the jurors’ decision. If the way is cruel, the jurors may consider that ‘this is not the right way since we are not in battlefield’. Besides, Mr. Kammen argues that it is not rare that the rules are changing all the time. He mentions the security policy regarding cuff links again. Thus to get a settled protocol in writing, a court order would be necessary. On the other side, the government argues that the protocol is a matter of law, and not a mitigation element (not unique to the defendant). Thus it is not appropriate to talk about it to the commission members. Also, if the defendant is found guilty and subject to execution, that would be years later. It is not ripe to discuss this issue at this point. The discussion for this motion does not last long.
AE279 – Additional Funding for Mitigation Investigator
Next motion is AE279, resource again. The defense is requesting additional funding for a mitigation investigator Mr. Assed to continue his work in Saudi Arabia, communicating with Mr. al Nashiri’s family and neighborhood. As the only person speaks Arabic and is Muslim (only Muslims can travel in Mecca, the home city of Mr. al Nashiri), Mr. Assed’s participation is essential for the mitigation investigation. The defense establishes their argument based on the cultural background, the language barrier, the social atmosphere in Saudi Arabia and argues that the additional 175 hours of work is necessary. Dealing with the fact that Mr. Assed has already been working on this issue for 400 hours, defense mentions that it’s not enough to a large extent due to the lack of proper resource. For example, their request for a female interpreter has been denied, thus they have to go on the trip without one, and later make another travel in order to fulfill the purpose. The government argues that it’s already 400 hours spent on one single person, and the resource provided to the mitigation team is considerable. Besides, the specifities provided by the defense is not enough to articulate the actual needs. It is noticeable that Judge Spath interrupts the government’s counsel several times, mentioning that this is related to the direct communication with defendant’s family. I think that Judge Spath is more with the defense for this motion. At the very end, he comments that since it’s a capital case, there will be more cost incurred. If the government chooses to go for it, those costs have to be accepted. I would not be surprised that Judge Spath rules for the defense. Again, I’m not able to assess the allocation of resource from a comprehensive point of view. But that female interpreter example is impressive. At least in that circumstance, it is indeed a difficult situation the defense is facing.
The next two motions, AE280 and AE281 all deal with classified information. In AE280, the defense is requesting the government to provide more specific markings in the classified document summaries, indicating what is classified and what is not, rather than marking the whole document as classified. The government argues that there is no legal authority to impose this duty, either in the DoD Mannual or in the Executive Order. And as a practical matter, if there is any inconsistency regarding the classification level between the summaries and the subsequent materials, a lot of more litigations will be followed. In AE281, the defense is requesting a guidance of how to handle those classified information to the defendant, Mr. al Nashiri himself. The defense concerns that without a clear and stable secrecy policy dealing with Mr. al Nashiri getting access to the classified information, it is practically difficult to predict what kind of behavior would be considered as leaking information. For example, what if Mr. al Nashiri goes back to his cell and tell other people about the information? In fact, no documents or agreement is for him to sign relating with his security clearance. The government argues that it has been confirmed that Mr. al Nashiri can use the summaries, and other materials. There should be no worries from the defense.
I could see that it’s a matter of trust at issue here again. The defense feels insecure and untrusted, that the government may use any behavior to preclude an defense attorney, to continue detaining Mr. al Nashiri and to impose negative impact upon the defense. Thus they are trying to get as much clear policy or guideline as possible, to ensure that they are complying with everything. In my view this concern is not unreasonable in circumstance. While the production for such document or policy is determined by the OCA, which is not subject to the direction from the government. Thus it is another thing we never know whether the defendant can get or not.
AE283 – Admissibility of Evidence
In the afternoon, the first motion is AE283. The government is requesting a hearing to determine the admissibility of photograph and video taken near the site of bombing as evidence. The defense is not objecting for such hearing, while emphasis that the government must establish solid ground for the admissibility. Being less complex, the discussion of this motion does not last long.
Yemen Friendship Agreement
Next, the court moves on to AE285 and AE306. These two motions are filed by the defense, arguing that applying MCA to Mr. al Nashiri (holding dual citizenship of Saudi Arabia and Yemen) violates the Yemen Friendship Agreement. Under the agreement, Mr. al Nashiri as a citizen of Yemen shall enjoy the full protection of laws and authorities of United States, according to the defense. The Yemen Friendship Agreement is a treaty and shall be the law of the land under the Supremacy Clause of the Constitution. And the Congress cannot pass law (MCA in this circumstance) to alter or limit it. Also, United States is exercising de facto control of Guantanamo Bay, thus the Constitution applies geographically. As for MCA, it limits several fundamental rights and only applies to non citizens. Thus, applying MCA to the defendant constitutes a violation of the Agreement. Judge Spath raises the question that is the Agreement made with a consideration, or applicable to the enemy combatants. In my view this is a question of whether there has been a fundamental change of circumstance which may invalidate the treaty in certain circumstance. Defense counsel argues that the Agreement is reaffirmed in 2004, and if then the President want to change or limit it, he should have done so. The government cites several prior motions and argues that this issue has been discussed. And the law controlling and protecting Mr. al Nashiri is MCA. Besides, the Agreement itself, as an international treaty, does not create private right, or private cause of action.
In fact I have been expecting more robust arguments for this motion. While the defense to some extent focuses on the different treatment Mr. al Nashiri is receiving, rather than bouncing back to the treaty law rebuttal the government made. Noticeably, this motion is one of those the defense trying to make constitutional challenges and get rid of MCA as a whole, followed by AE295 and AE296 – 301.
AE295 challenges MCA’s constitutionality base on its selective targets towards Muslim. The government rebuts that it is not the case. MCA deals with those who violate the law of war. And it’s not targeting any religion particularly. Thus it is facially neutral. AE296 – 301 raises the ex post facto argument that the statute of limitation, which is five years, provided by Article 43 of the Uniform Code of Military Justice has passed, thus all the charges against Mr. al Nashiri shall be dropped. The government argues that MCA does not provide a statute of limitation, and the provision of UCMJ does not automatically apply. In addition, having no statute of limitation is consistent to the international criminal law practice.
These two sets of motions, especially the ex post facto arguments, are significantly shorter than I have expected. These questions touch the basis of legacy/constitutionality of the MCA, as the controlling legal instrument here. Ironically, these motions seem to be less developed comparing with others. Maybe it is just acknowledged that these motions are less likely to work in the Military Commission anyway.
The court recesses. Tomorrow morning would be the end of this weeks’ hearings.