Rick Kammen

Reflections on my Previous Guantanamo Observation Trip

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.

Further Thoughts

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.

For either case, I believe it would be a great opportunity to learn more about this hybrid court-martial/federal criminal court process. I believe I would also gain insight that I could bring back to the Program in International Human Rights Law at McKinney so I can contribute to the Know Before You Go Guide and the Fair Trial Manual.

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)

Program in International Human Rights Law

Indiana University McKinney School of Law

My Scheduled Trip to Monitor Military Commissions at Guantanamo Bay, Cuba

I am scheduled to fly to Guantanamo Bay, Cuba to monitor hearings in the U.S. Military Commission case against Mr. Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri. Mr. al Nashiri is facing war crimes charges as the alleged mastermind of the October 2000

Damage to the USS Cole. Picture from CNN.

bombing of the USS Cole off the coast of Yemen, killing 17 sailors and wounding many more. I am a second-year student at Indiana University McKinney School of Law, and was nominated by our school’s Military Commission Observation Project (MCOP) and confirmed by the Pentagon’s Office of Military Commissions (OMC) for this monitoring role, from 11 to 18 November 2017.

Current Case Status

Mr. al Nashiri’s case is in a position no other Guantanamo case has been in before.

Several weeks ago, Mr. al Nashiri’s defense team consisted of Navy Lieutenant Alaric Piette, Ms. Rosa Eliades, Ms. Mary Spears, and Mr. Rick Kammen. Since Mr. al Nashiri faces the death penalty, he has, “to the extent practicable”, the statutory right to have a “Learned Counsel” — or an attorney who is qualified to serve in capital cases. Mr. Kammen served as Mr. al Nashiri’s Learned Counsel since 2008.

On 11 October 2017, Brigadier General John Baker, chief defense counsel for the Military Commissions, released Mr. Kammen, Ms. Eliades, and Ms. Spears for what he described as “good cause” due to “lack of confidence in the confidentiality of their privileged conversations with [al Nashiri] at Guantanamo” according to the release memo singed by General Baker.

Judge Spath ordered Mr. Kammen, Ms. Eliades, and Ms. Spears to appear in court at Guantanamo on 30 October 2017, however the three attorneys did not board the plane to go down there. Judge Spath said the hearings will continue and that General Baker’s release of the three attorneys was “null and void.”

On 1 November 2017, Judge Spath held General Baker in contempt for “willfully refus[ing] to obey the commission’s order to testify” and for “willfully refus[ing] to obey the commission’s order to rescind [his] excusal of [Mr. Kammen, Ms. Eliades, and Ms. Spears].” On 3 November 2017, a Defense Department lawyer agreed to defer General Baker’s punishment, and General Baker was released from confinement to his quarters.

BG Baker after being released from confinement to his quarters. Picture from Miami Herald.

Judge Spath has said that he intends on continuing with the hearings on “things that don’t relate to capital issues” through next week. It is still unclear whether the hearings will continue the week of 13 November 2017, when I am scheduled to be at Guantanamo.

Preliminary Thoughts

I am still hopeful I will have the opportunity to travel down to Guantanamo. I am currently scheduled to depart from Joint Base Andrews on 11 November. I am looking forward to attending, observing (and being observed), analyzing, critiquing, and reporting on the military commissions as a neutral stakeholder, and ultimately having this incredible potential opportunity that, unfortunately, not many people get.

Jessica Ayer (J.D. Candidate, ’19)

NGO Monitor, U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

Guantanamo Bay lawyers on all sides brief non-governmental organizations (NGOs)

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

The next lawyers’ briefing was by Chief Defense Counsel Brigadier General John Baker, joined by Deputy Chief Defense Counsel Captain Brent Filbert. General Baker is responsible for all defense counsel on all Guantanamo cases, and is not part of the al Nashiri defense team or of any other defense team. Neither he nor Captain Filbert has an attorney client privilege with any detainee.

The final lawyers’ briefing was by civilian and military attorneys for al Nashiri. These were civilian lead counsel (Learned Counsel Rick Kammen) and military co-counsel (Lt. Commander Jennifer Pollio).

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.]

Conclusion

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.

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