Stakeholders’ Rights

At Andrews Air Force Base: Ready for Guantanamo Bay, Cuba!

Sign at gate of Andrews Air Force Base.

I finally arrived at Andrews Air Force Base for my flight to Guantanamo Bay for the USS Cole Bombing hearings against al Nashiri. It is very chilly this morning (Sunday the 1^st), but I’m told that better temperatures await ahead.

Today I learned that what is now Andrews dates back to the Civil War, when the Union used a local country as its headquarters, and that church is still used by the Andrews community today, in 2015.

The base first became operational as Camp Springs on 2 May 1943, and was officially named Andrews Field in 1945. (I guess there was no Air Force during the Civil War, and no need for the word “field” to be part of the base’s name then.) In October 2009, Andrews Air Force Base and the Naval Air Facility in Washington were joined as the Joint Base Andrews Naval Air Facility Washington (or “Joint Base Andrews”) (Joint Base Andrews History Factsheets).

At Andrews Air Force Base, in front of USO sign.

At Andrews Air Force Base check in counter. IIU McKinney LL.M. graduate Avril Pitt Rua (left) with Affie Ellis from the American Bar Association (ABA).

All the NGOs representatives, except for two who cancelled at the last minute, met at the Andrews’ Gate. With us are representatives from the American Bar Association, Duke University, the National Institute of Military Justice, Pacific Council of International Policy, Georgetown University School of Law, Judicial Watch, Human Rights First and the New York City Bar Association. We all met with our escorts, did introductions and shared interesting facts about ourselves. I am excited to meet all of them individually. One of them, from Human Rights First, is so far very impressed with the Guantanamo Bay Fair Trial Manual that we in the Indiana University McKinney School of Law Military Commission Observation Project have been researching and writing. I will be chatting more with him and other on our flight.

I know that one of the sections of the Guantanamo Bay Fair Trial Manual deals with rights and interests of NGO Observers. Yes, we NGO representatives have interests too. For example, we have an interest in being able to do what we are sent to do, and that is attend, observe, analyze, critique and disseminate information about the GTMO Military Commissions. I hope that we NGOs on this trip will be permitted resources and access able to accomplish our NGO goals.

Of course, Andrews is the home of Air Force One. The plane taking us to Guantanamo Bay is a more modest than this one.

Andrews is the home of Air Force One. The plane taking us to Guantanamo Bay is a more modest than this one. Photo courtesy of U.S. Air Force photo/Staff Sgt. Amanda Savannah.(http://www.andrews.af.mil/shared/media/photodb/photos/060506-F-3568S-004.jpg)

We are about to go through security at Andrews. So, I’ll sign off for now.

Next stop, Guantanamo, Bay!

Avril Rua Pitt, Andrews Air Force Base, March 1, 2015

Three Indiana McKinney Law Professors Travel to Guantanamo Bay, Cuba

IU McKinney Professor Lemmer to return to Guantanamo Bay to monitor the 9/11 case against Khalid Shaik Mohammad and 4 co-defendants

Indiana University McKinney School of Law will send three law professors to Guantanamo Bay, Cuba to monitor U.S. Military Commission hearings in February 2015. They represent the law school’s Military Commission Observation Project, also known as the Gitmo Observer, that was selected by the Pentagon to observe, analyze and report on war crimes trials at the Guantanamo Bay Naval Station.

Professors Edwards & Lemmer – The 9/11 case

Professors George Edwards and Professor Lemmer will monitor pre-trial hearings in the case against five alleged masterminds of the 9/11 airplane attacks on the World Trade Center and the Pentagon. The lead 9/11 case defendant is Khalid Shaik Mohammad (KSM).

Professor George Edwards on a US Military C-17 flight from Andrews Air Force Base to Guantanamo Bay, Cuba (June 2014)

Professors Edwards, who is founding director of Gitmo Observer, said “The IU McKinney School of Law is fortunate that we can help promote transparency at the Guantanamo Bay war crimes trials, and that we can observe, analyze and form conclusions about whether Guantanamo Bay stakeholders are being afforded all rights to which they are entitled. In the Guantanamo Bay Fair Trial Manual we are publishing, we examine rights of the defendants, as well as rights of victims and their families, rights of the prosecution, rights of witnesses, rights of the U.S. military personnel who provide Guantanamo Bay security, and rights and interests of all other stakeholders”.

Professor Edwards is scheduled to return to Guantanamo Bay from 14 – 21 February 2015. Professor Edwards’ first visit to Guantanamo Bay was in 2007, when he was an expert witness in the case against Australian David Hicks, who at Guantanamo Bay became the first person since World War II to be convicted by a U.S. Military Commission.

Professor Lemmer, who is a lawyer and international librarian, has played instrumental roles in the development of the Gitmo Observer. She is scheduled to travel to Guantanamo Bay for 9 -13 February hearings. She was at Guantanamo Bay in December 2014 for hearings in that same case. Professor Lemmer has been library liaison to the Gitmo Observer, and a key developer of the Gitmo Observer website, briefing materials, and project policies. She has also undertaken to help develop the NGO Observer Library, which will be a functioning resource center for NGO Observers to use while they are on missions to Guantanamo Bay to monitor hearings.

Professor Wilson — The USS Cole / al Nashiri case

Professor Wilson is scheduled for Guantanamo Bay travel to monitor the USS al Nashiri case.

Professor Wilson, is scheduled to travel to Guantanamo Bay during the week of 23 – 27 February 2015 to monitor the case against al Nashiri, who is alleged to have masterminded the 2000 suicide attack against the USS Cole, a U.S. Naval ship that was docked off the coast of Yemen, and that killed and wounded numerous U.S. sailors.

Professor Wilson, in preparing for his first mission, will be posting his preliminary observations on the Gitmo Observer blog very soon!

Are you interested in travel to Ft. Meade or Guantanamo Bay?

Indian McKinney School of Law students, faculty, staff and graduates are eligible to be considered for travel to Ft. Meade and Guantanamo Bay through the Gitmo Observer. Registration forms are available on our website.

In 2014, Dean Andy Klein was scheduled to travel to Ft. Meade, Maryland to observe Guantanamo Bay courtroom proceedings simultaneously video-cast by secure link. The hearings were cancelled, and Dean Klein is expected to reschedule in the near future.

IU McKinney Law School Dean Andy Klein is expected to travel to Ft. Meade, Maryland to monitor military commission trials during the Spring 2015.

(Post by by George Edwards)

18 and 19 November Military Commissions Events at Guantanamo Bay – Hattie Harman

The Military Commission hearing pre-trial motions in the U.S. government’s case against Abd al Hadi al-Iraqi reconvened Wednesday, November 18 at 1:00 p.m. Hadi is accused of several crimes arising out of his alleged role as an al Qaeda commander in Afghanistan during the post-9/11 period. Before convening today, Commission Judge Captain Kirk Waits conducted conferences with the parties on various issues including some anticipated to arise on Wednesday.

Defense Motion AE 21 – Contact with Female Guards

The first issue addressed was the status of defense motion AE 21 requesting that female guards cease certain physical contact with Hadi. The Commission previously granted Hadi’s motion on a temporary basis and the motion was expected to be argued on the merits in this week’s session. But apparently at Tuesday’s conference it became apparent that Hadi’s defense team had been unable access certain evidence that it intended to use in support of its motion. Specifically, Hadi objects to being touched by unrelated females based on his religious beliefs. The government argues that the operational security needs of the detention facility require the use of some female guards. The offensive touch typically occurs during the shackling process when Hadi is being moved from his cell to another location. Apparently in October when Hadi so objected to being shackled by female guards, he was “forcibly removed” from his cell over his objection. A video of this forcible removal exists and has been in the possession of the prosecution team for over two weeks. However, due to problems with the security process (due to the highly classified nature of the video), the defense team was unable to view this evidence until just before Tuesday’s hearing. Additionally, the defense has not yet been provided access to witnesses to the touching and to evidence and/or witnesses confirming the security needs of the detention facility. While the government argued vigorously against extending the time for argument on this issue, the Commission seemed to recognize that the defense could not present a viable substantive argument on the issue without more discovery. The Commission noted that if Hadi is presented with the choice of being shackled by a female or forgoing a meeting with his defense counsel, Hadi’s beliefs apparently prevent him from meeting with counsel or attending his own proceedings. “That is the most basic of due process,” said Judge Waits. And in addition to these rights being recognized under the United States Constitution, they are recognized under numerous internationally binding treaties as well as the Military Commissions Act itself. But also seemingly recognizing that the government has an interest in operating its corrections facilities in a safe, effective, and efficient manner respecting the rights of all genders to equal employment opportunities, the Commission ordered the parties to submit additional briefing on the issue prior to the next scheduled set of hearings in late January.

Defense Motion AE 20 – Article 5 Status Hearing or Dismissal for Lack of Personal Jurisdiction

After wrapping up the briefing schedule for the access to witnesses issue, the Commission issued an oral ruling on one of the motions argued Monday, AE 20. Readers may recall that this motion concerned the defense’s request that Hadi is entitled to a hearing pursuant to Article 5 of the Geneva Conventions in order to determine his status and thus what type of tribunal may try him for the alleged war crimes. Hadi contends that he should be presumed a prisoner of war (POW) and thus may not be tried by a Military Commission. He asked for a determination be made pursuant to Article 5 which provides a particular procedure with a specially constituted panel for determining status. The government argued that Hadi is clearly an unlawful enemy belligerent subject to the jurisdiction of the MCA and no further status determination is needed. Rejecting both parties’ positions, Judge Waits on Wednesday granted the defense’s alternative request, which was that the Commission itself make a determination as to Hadi’s status for purposes of jurisdiction.

Rule 802 Scheduling Conference, Courtroom Tour, and Visit to Camp X-Ray

No open courtroom proceedings occurred on Wednesday, but the parties and the Commission held a Rule 802 scheduling conference to hammer out the way forward and to prepare a plan for the next set of hearings which will occur in late January. The non-governmental observers (NGOs) of the hearings thus had a day devoted to learning more about the facilities associated with the hearings and the detainees. First we were given a detailed tour of the courtroom complex and its related facilities, including the cells used to house detainees on days when they make an appearance in court. Next, the Joint Task Force Public Affairs Office graciously led the NGO observers on a tour of now-closed Camp X-ray.

NGOs being led through Camp X ray by Army personnel.

This area was used in the 1990s to temporarily house the large influx of Haitians arriving at Guantanamo seeking refuge in the United States. For a period of spanning late 2001 and early 2002, Camp X-ray was used to house detainees who were captured in conjunction with the U.S. actions in Afghanistan and elsewhere after the 9/11 attacks. The conditions were quite primitive, and essentially consisted of a small, covered area enclosed by chain link fence for each detainee.

View of a row of detainee housing at now-closed Camp X ray

The entire camp was of course heavily guarded and surrounded by concertina wire, most of which still appears to be in place. Fortunately, the government constructed a series of newer, more humane detention areas to house the detainees when it became apparent the situation was not going to be temporary. Camp X-ray is being conserved in its present state for historical and legal purposes.

17 November Hadi al-Iraqi Hearings at Guantanamo Bay – Hattie Harman

Hattie Harman - at GTMO - Camp Justice - 17 June 2014 - IMG_1097

Hattie Harman at Camp Justice, Guantanamo Bay, Cuba.

This morning proceedings commenced in the pre-trial hearings in the government’s case against accused war criminal Hadi al-Iraqi. Hadi is charged in a non-capital case with several crimes arising out of his alleged involvement as an al-Qaeda commander in Afghanistan.

Courtroom Facility/Personnel and Rights Implications

Hadi entered the courtroom unassisted and unrestrained and greeted his counsel in what appeared to be a congenial, even warm, exchange. At Hadi’s defense table sat Hadi, his interpreter, and two military defense counsel. Hadi was escorted by three uniformed (in fatigues) guards. These guards sat within 12 feet of Hadi through the entirety of the proceedings. There were from two to four other guards in the courtroom during the proceedings. A fellow observer who had worked on the UN International Criminal Tribunal for the former Yugoslavia (ICTY) case of Radovan Karadžić (an alleged genocidaire) told me that there was not near the security presence around the defendant in that case as there was in the Hadi al Iraqi case. [Eds. The Guantanamo Bay Fair Trial Manual addresses security personnel in the court and the issue of a defendant’s presumption of innocence.*]

I watched the proceedings from an observation gallery at the rear of the courtroom which was separate from the main courtroom, but allowed clear visual observation of the entire courtroom through thick glass windows. Audio speakers in the observation gallery conveyed the sound of the proceedings to the observers, with a 40-second delay to allow for censorship of any unintentionally disclosed classified information in the courtroom. No such censorship occurred today. But we thirteen NGO observers were “joined” in the gallery by six uniformed military security persons.

Courtroom Proceedings and Rights Implications

Today’s hearing focused on three defense motions. These motions implicated issues of

Whether the executive branch or the DoD exerted any “unlawful command influence” regarding the timing of the referral of charges against Hadi. Curiously, in the view of the defense, Hadi was charged on the Monday after the Friday, May 31, 2014 media coverage of the release of Bowe Bergdahl in exchange for five Guantanamo detainees.
Whether Hadi’s charging document properly included numerous “common allegations” preceding the charges themselves. These allegations, the defense argues, are simply another mechanism to try to get unproven “facts” before the Commission (MCA equivalent of a jury) before the commencement of proceedings which could prejudice Hadi’s right to be presumed innocent until proven guilty.
Whether Hadi is entitled to a status determination pursuant to Article 5 of the 3rd Geneva Convention as to whether he is actually an “unlawful enemy belligerent” to whom the MCA applies. If Hadi were determined to be a POW rather an unlawful enemy belligerent, the MCA would not provide personal jurisdiction over him, which in theory would mean he would have to be tried in a different tribunal which presumably would afford him more expansive procedural rights.

[Eds.] *The Guantanamo Bay Fair Trial Manual identifies the right to be presumed innocent as a fundamental right that should be afforded to all criminal defendants at Guantanamo Bay and elsewhere. The Guantanamo Bay Fair Trial Manual suggests that when assessing whether the defendant is being afforded a fair trial, NGO observers might consider whether, among other things, the level security personnel surrounding the defendant might be more in line with a presumption of guilt rather than a presumption of innocence.]

Departing Indianapolis for Guantanamo Hearings – Hattie Harman

The things I CAN’T forget to take to GTMO!

Tomorrow (Sunday) I will fly from Andrews Air Force Base to Guantanamo Bay Naval Station, Cuba to observer next week’s pretrial hearings in the U.S. prosecution of alleged al Qaeda commander Abd al Hadi al-Iraqi (17 – 20 November 2014). I will be transporting several updated draft copies of the Guantanamo Bay Fair Trial Manual to distribute to other non-governmental observers (NGOs).

Visit to International Criminal Law Class

Last evening, I had the good fortune to be a guest in Professor George Edwards’ class in International Criminal Law at the Indiana University McKinney School of Law. Professor Edwards, with help from students and others, has drafted the Guantanamo Bay Fair Trial Manual for use NGO observers and anyone else interested in determining whether stakeholders are getting a fair trial. I cannot thank Professor Edwards and his students enough for preparing the Manual and for welcoming me to their class. The Manual has been an indispensible part of my preparation, as it contains a trove of information about the treaties, U.S. laws, and regulations governing proceedings under the law of war, and international human rights law, and it also identifies the various stakeholder groups in these proceedings, all of whom have rights under these laws, treaties, and regulations.

Making Connections – Theory to Practice

I am an attorney by profession, and my work involves primarily appellate review of both criminal and civil substantive law issues. Issues of procedure and particular rights arise from time to time but are by far most of my work involves more substantive questions such as, “Was a particular piece of evidence properly admitted?” and “Did the trial court properly apply the existing case law in instructing the jury?”. The rights issues I deal with are typically secondary to the substantive law questions. Further, to the extent I deal with rights issues in practice, these issues relate almost invariably to the rights of the criminal defendant. Therefore, participation in this MCOP project requires me to shift my legal mindset and approach the proceedings from a very different perspective.

I have no previous experience in international law so of course the Guantanamo Bay Fair Trial Manual is extremely informative. But I found my visit to last night’s class was absolutely essential in helping me to make connections between the Manual’s exposition of human rights law procedures and the application of these rights to the stakeholders in practice. The students and Professor Edwards were able to help me focus on my role to assess whether the proceedings are delivering the rights to which each stakeholder is entitled, not what substantive law is at issue in the particular case.

Indiana Lawyer Lectures Before Guantanamo Bay Mission

Chuck Dunlap - Lecture - Indiana University McKinney School of Law - 31 October 2014

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.

Guantanamo Bay Fair Trial Manual

MCOP monitors are expected to use the Guantanamo Bay Fair Trial Manual as 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.

Professor Edwards and Mr. Dunlap and stack of Guantanamo Bay Fair Trial Manuals Mr. Dunlap will carry to Guantanamo Bay for NGO Observers to use in assessing fair trial rights. Copies of the draft Manual can be downloaded from www.GitmoObserver.com.

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.

Ambassador, Congressman, Law Professors & Journalist Discuss Guantanamo Bay’s Future

From left Dean and former U.S. Ambassador to Poland Lee Feinstein, Miami Herald Senior Correspondent Carol Rosenberg, Professor Edwards of The Gitmo Observer, Special Assistant to the International Criminal Court Prosecutor Professor Leila Sadat, and former Congressman Lee Hamilton who was Vice Chair of the 9-11 Commission.

From left Dean & former U.S. Ambassador to Poland Lee Feinstein, Miami Herald Senior Correspondent Carol Rosenberg (@CarolRosenberg), Professor George Edwards of The Gitmo Observer (@GitmoObserver), Special Assistant to the International Criminal Court Prosecutor Professor Professor Leila Sadat, and former Congressman Lee Hamilton who was Vice Chair of the 9-11 Commission.

The Guantanamo Bay detention facilities and U.S. Military Commissions were intensely discussed at a panel hosted by the Indiana University School of Global and International Studies.

Panelists spoke about the rationale and feasibility for closing Guantanamo’s detention facilities, how the international community views Guantanamo and its trials, insights from a journalist who has covered Guantanamo Bay since the first detainees arrived in January 2002, and measuring whether all Guantanamo Bay stakeholders’ human rights are being afforded to them.

Former Indiana Congressman Lee Hamilton, who was Vice-Chair of the 9-11 Commission, discussed the US government rationale for the shutting down of Guantanamo Bay and the difficulties in effecting such closure, from a Washington perspective. He described political and logistical challenges to a rapid closure.

Ms. Carol Rosenberg, who is Senior Correspondent for The Miami Herald, was in Guantanamo Bay to witness the January 2002 arrival of the first group of approximately 20 detainees, who were housed in “Camp X-Ray” wearing iconic bright orange prison. Ms. Rosenberg spoke about the history of the detention facilities, and its past, current and future challenges. She further elaborated on her perspective as a journalist assigned to the Guantanamo Bay.

Professor Leila Sadat, of the Washington University School of Law, is Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow, Director of the Whitney R. Harris World Law Institute and the Special Adviser on Crimes Against Humanity to the ICC Prosecutor. She provided a perspective on how the international community, outside of the U.S., views Guantanamo Bay and its Military Commissions.

U.S. Ambassador to Poland (former) Lee Feinstein, who is Founding Dean of the School of Global and International Studies, provided perspective given his many years of diplomatic and international law public experience and research. Dean Feinstein moderated the panel.

Professor George Edwards is founder of The Gitmo Observer, which is also known as the Military Commission Observation Project (MCOP) of Indiana University McKinney School of Law. Professor Edwards spoke on “Assessing Human Rights Protections for All Guantanamo Bay Stakeholders, Not Just the Rights of the Defendants”.

Professor Edwards descried how he founded the Indiana University McKinney Law School’s Program in International Human Rights Law, and how the Pentagon’s Convening Authority selected that program to be granted non-governmental observer status to permit it to send representatives to Guantanamo Bay to monitor hearings in person, or to Ft. Meade to monitor via secure video feed. Professor Edwards created then created the Military Commission Observation Project, which is now known as The Gitmo Observer. He talked about The Gitmo Observer’s most recent project, the Guantanamo Bay Fair Trial Manual, which those who monitor the Guantanamo Bay proceedings and process use to determine whether a fair trial is being held.

The panel was held at the University Club, at the Indiana Memorial Union, with a reception that followed in the Faculty Room.

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