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Heading to Guantanamo for 9/11 Hearings

I’m at Andrews Air Force Base waiting for a military flight to take me to Guantanamo Bay, Cuba, to monitor hearings in the war crimes case against five alleged masterminds of the 9/11 attacks on the World Trade Center. I am representing the Military Commission Observation Project I founded at Indiana University School of Law.

The Pentagon announced that they want Guantanamo Bay proceedings to be “transparent”, and the Pentagon selected our Indiana program to help further the transparency. Our program has been sending Indiana law students, faculty, staff, and graduates to Guantanamo whenever they have war crimes hearings. Our mission is to attend, observe, be observed, analyze, critique, and report on the Guantanamo military commissions.

Hearings this week

On Monday 10 September 2018, a week of hearings will begin against Khalid Shaik Mohammad, who is charged with designing and overseeing the “plane’s operations” that destroyed the World Trade Center and damaged the Pentagon. He is joined by four other defendants who are charged with varying levels of responsibility for the 9/11 attacks–financing, recruiting and training hijackers, and facilitating communications among members of the conspiracy.

The long-serving military judge in this case resigned, and the new military judge will meet the defendants and lawyers for the first time on Monday.

Conclusion

I plan to provide updates during the week.

George Edwards

Director (Founding), Military Commission Observation Project

Indiana University McKinney School of Law

At Andrews Air Force Base — Heading to Guantanamo Bay

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5 non-governmental organization (NGO) representatives after our pre-flight briefing at Andrews Air Force Base. I’m second from left.

I am a third year law student at Indiana University McKinney School of Law, and am traveling to Guantanamo Bay, Cuba through our law school’s Military Commission Observation Project. The Pentagon granted our Project status to send McKinney faculty, staff, students and graduates to Guantanamo to monitor military commission hearings. I am monitoring hearings in the case against Mr. Majid Khan, who pleaded guilty at Guantanamo to war crimes charges. His hearings are scheduled for 17 and 18 July 2018.

Our plane to Guantanamo departs from Andrews Air Force Base, in Maryland, just outside of Washington, DC. Andrews is known as the home of Air Force One, the plane used by the President of the United States.

My Experience at Andrews Air Force Base

Last week the Pentagon’s Office of Military Commission (OMC) sent me and other monitors a “Trip Brief” that provided detailed instructions for today’s trip, and informed us of what to expect.

We were instructed to meet at the Andrew’s Visitor Center, just outside the main gate of the base. There, a Pentagon driver picked us up and drove us to the Andrews air field. We checked in for our flight, just as we would check in for any commercial flight. In addition to our passport, we had to show certain documents that the Pentagon had sent us to obtain a boarding pass.

Briefing for NGOS

After I checked in for my flight, I was introduced to our two “escorts” who would be traveling to Guantanamo with the monitors. We were taken to a separate room, and the escorts introduced themselves to everyone present. We all introduced ourselves and asked questions. I also distributed the manuals provided for us from IU McKinney for NGOs. Our group consisted of five monitors (or observers)–3 law students, 1 attorney, and one law professor–from 5 different states.

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An NGO monitors reading the Guantanamo Bay Fair Trial Manual Excerpt, provided by Indiana’s Gitmo Observer.

The escorts reviewed different rules for us on the ground at Guantanamo. For example, we were told about photography limitations, badge requirements, opportunities while on base, and the approximate schedule for the next 3 days. Our escorts emphasized that we need to remain observant of rules and restricted areas. In addition, they explained that we needed to remain flexible, because rules and day to day activities can and do change with little to no notice. Our escorts also said we could possibly pet the iguanas and to watch out for banana rats.

Feelings About Being on Andrews Air Force Base

I felt very humbled. As I sat there waiting among other NGO’s, members of the press, and members of prosecution and/or defense teams, I readily acknowledged that I was now a part of something very important that many people are not privileged to experience. I already felt this mission is pertinent; however after overhearing partial conversations about Khan’s case (that I will not regurgitate, because some of it may very well be privileged) and witnessing men and woman in uniform who have signed contractions to join our armed forces in person, I began to develop an even deeper admiration for the commission.

Departure

After our briefing we were sent through security, which looked like security at any U.S. airport. Here the scanner machine was inoperable. We put our personal items into a bin for hand inspection and then walked through the metal detector.

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Also reading the Guantanamo Fair Trial Manual Excerpts – At Andrews

Around the corner from security we provided our passport and boarding pass to a soldier. We waited for approximately 15 minutes before we were taken from our terminal to our plane. In the plane, the flight attendants completed a head count. We are now headed to Guantanamo Bay, Cuba.

A. Shashan Deyoung, J. D. Candidate, 2019
NGO Monitor, U.S. Military Commission Observation Project (MCOP)
Indiana University School of Law Program in International Human Rights Law

Heading to Guantanamo Bay, Cuba Today for Next Week’s Military Commission Hearings

I’m at Andrews Air Force Base waiting for a plane to take me to Guantanamo Bay, Cuba, to monitor hearings in the case against Khalid Sheikh Mohammed (KSM) and four other alleged masterminds of the 9/11 attacks (the “9/11 case”). The hearings are scheduled to occur from 28 April through 5 May 2018.​

I arrived in Washington, D.C. on Thursday, April 26 and have been preparing for my final exams that I am taking the week after I return from Gtmo.IMG_2087

This week’s hearings may likely include the following issues, including motions regarding CIA black site location information, access for the Defense to interview current or former members of the CIA, the Trump administration’s influence on military justice process, access to further evidence through discovery, current confinement issues, and procedural issues regarding the speed at which unclassified pleadings are released publicly.

I will report back after my observation this week.

 

Sheila Willard (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

My Nomination to Observe War Court Proceedings at Guantanamo Bay, Cuba

Nomination

I am a third-year law student at Indiana University McKinney School of Law, and have participated in the law school’s Military Commission Observation Project (MCOP) as an NGO Observer since October 2016.  The MCOP is part of the law school’s Program in International Human Rights Law.

I was confirmed by the Pentagon to attend, observe, be observed, analyze, critique, and report on military commission hearings at the Guantanamo Bay Naval Base (GTMO) in the case against Khalid Sheikh Mohammed (KSM) and four other alleged masterminds of the 9/11 attacks (the “9/11 case”). The hearings are scheduled to occur from 28 April through 5 May 2018.

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Meeting fellow NGO observers in Gtmo during my last observation, October 2017.

This will be my fourth military commission observation. My first observation was at Ft. Meade, Maryland, where I observed hearings in the 9/11 case via CCTV in October 2016. My second observation was in January 2017 at Guantanamo Bay, Cuba, where I observed hearings in the case against Hadi al Iraqi / Nashwan al Tamir, an alleged high-ranking member of al Qaeda. My third observation took me back to Guantanamo Bay where I attended the 9/11 hearings in October 2017.

Background and Interest in Observing

I became interested in the MCOP during the fall of my second year of law school after hearing about the program and other students’ experiences in observing the hearings. Stemming from my interest in human rights, I applied to participate in the MCOP observations.

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Touristing in a bell tower while working with refugees at an NGO in Prague.

In the summer of 2017, I worked in Lisbon, Portugal and Prague, Czech Republic at non-governmental organizations (NGOs) through the Program in International Human Rights Law (PIHRL), which is the program that administers the MCOP.  During my time in Prague, I had the incredible experience of working with people seeking asylum in Czech Republic.

The PIHRL recently celebrated 20 years of successful internship placements around the world. I was also a research assistant to the program director of PIHRL in the fall of 2017. This coming fall, I will be working abroad  in an area of international human rights law.

Preparing to Observe

Even though my observation is a few weeks away, I am preparing now so that I am fully informed and updated on the hearings. I am paying careful attention to a document developed and written by MCOP participants titled What Human Rights Non-Governmental Organization (NGO) Observers and Others May Want to Know Before Traveling to Guantanamo Bay, Cuba. This document, of which Professor George Edwards is the principal author, provides all of the information necessary to successfully prepare for and complete a mission to Guantanamo.  Without this guide, preparing for my mission would not be complete, even though I have traveled to Ft. Meade and Guantanamo in the past. It is a resource that is full of information not only for the first-time participant, but also for the seasoned observer.

I have also been keeping up-to-date on the hearings and goings on at Guantanamo by following the Miami Herald online, as journalist Carol Rosenberg keeps close watch on the proceedings and reports on the hearings and beyond. I have also found Twitter to be instrumental in keeping informed about the hearings.

I will soon begin to prepare my travel arrangements to Andrews Air Force Base in Maryland, where I will depart to Guantanamo Bay.

NGO Coins

The MCOP has developed a special coin for distribution.  I will have a few coins available during this observation.

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Sheila Willard (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Heading to Guantanamo Bay, Cuba Today

NGO Briefing - Andrews - 24 Feb 2018 - with smudgingIt’s Saturday morning and I’m heading to Guantánamo Bay again. This time I’m monitoring the US Military Commission case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon. They are facing war crimes charges punishable by death.

The only people involved with this case who live at Guantanamo are the 5 defendants. Everyone else involved gathers at Andrews Air Force Base, the Home of Air Force One, and flies on a military flight to the remote base at the southern tip of Cuba.

With me at Andrews waiting for our flight is the Military Judge who is hearing the case and his staff, a series of prosecutors and defense counsel, court reporters, victims and their families, witnesses, security, media, and others. My role this trip is as an observer / monitor representing the Military Commission Observation Project I founded at Indiana University McKinney School of Law, to which the Pentagon granted permission to send our Faculty, staff, students and graduates to Guantanamo.

Our Indiana group is considered an “non-governmental organization (NGO)”. Today I am joined today by representatives of 9 different NGOs. Our mission is to attend, observe, be observed, analyze, critique, and report on the war crimes hearings.

Pictured above are our NGO observers receiving a briefing by Commission staff, the NGOs in the Andrews waiting area, and us in the bus on the Andrews tarmac as we head towards the plane. I will not post photos of the plane.

I plan to post updates later today and through the week.

George Edwards

Military Commission Observation Project

Indiana University McKinney School of Law

Reflections on my Previous Guantanamo Observation Trip

I traveled to Guantanamo Bay, Cuba from 11 to 18 November 2017 to observe military

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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

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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

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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

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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

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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

Government’s “Star Witness” Against Nashwan Al-Tamir Appears in Guantanamo Court

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Ahmed Al-Darbi, in an undated photo by the International Red Cross 

Tuesday, 30 January 2018, in the Guantanamo Bay courtroom, an alleged al Qaeda Iraq member and Taliban liaison encountered the government’s purported “star witness” against him. Defendant Nashwan Al-Tamir has been charged with attacks against allied troops and contractors in 2003 and 2004 in Afghanistan, during the U.S. led invasion, and he was confronted in court by Ahmed Muhammed Haza al Darbi, who testified in August that Al-Tamir was “Hadi al-Iraqi,” Al-Darbi’s Al-Qaeda commander in 1996 whom he saw at a guest house with other Al-Qaeda commanders as late as 2000. In addition to testifying against Al-Tamir, Al-Darbi is also testifying in a case against the alleged U.S.S. Cole bomber, Abd al Rahim al Nashiri, who is alleged to have masterminded the bombing of the U.S.S. Cole off the coast of Yemen. His testimony was in exchange for a guilty plea under which he is set to return to Saudi Arabia this month to serve a sentence of 9-15 years.

Why I am in Guantanamo?

I am a graduate of Indiana University McKinney School of Law, and I am here as a monitor representing the school’s Military Commission Observation Project.  This week I and five other NGO representatives have been monitoring pre-trial proceedings in the government’s case against Al-Tamir.  Al-Darbi’s in court deposition was suspended in August due to Al-Tamir’s health and was set to resume next week.

Star witness against al-Tamir unexpectedly appears in the courtroom

To the the surprise of us NGO representatives observing proceedings this week, Al-Darbi came in to Court Wednesday afternoon with his lawyers for a hearing on Al-Tamir’s motion to compel production of records concerning his psychological condition and treatment.  We did not expect him to appear in court today and we were surprised because his deposition was not set until next week. Not even Miami Herald reporter Carol Rosenberg, the only reporter to regularly attend the hearings, knew that this motion was would be on the Commission’s docket this week. Al Darbi was clean cut and wore a blue suit, having shaved the beard he had worn prior to his guilty plea.  Al Tamir requested production of the records to try to discredit al Darbi’s testimony and deem it unreliable due to trauma he endured as a result of torture inflicted upon him at the U.S. air base in Bagram, Afghanistan and at Guantanamo.

Arguments about al Darbi’s mental condition & mental health records

Al-Tamir’s counsel, Air Force Major Yolanda Miller, argued that al Darbi’s records could show that Al-Darbi was suffering psychological trauma from torture when he testified against Al-Tamir in 2017.  Miller also argued that Al-Darbi had waived any patient-physician privilege when he disclosed records in arguing that he was unable to testify publicly, and that at least the Court should review the records in camera, without disclosing them publicly, before ruling.  The government argued that it had the responsibility to determine discoverability of the records, and that it had determined that al Darbi’s medical records were not relevant.  Al-Darbi’s lawyer, Navy Lieutenant Commander Greg Young, argued that the medical records were privileged, and that Al-Darbi had not previously disclosed any of the records.  The military judge, Marine Colonel Paul Reuben, took the matter under advisement.

Al-Tamir’s motion to abate the proceedings

Earlier Wednesday afternoon, the court had heard arguments on Al-Tamir’s renewed motion to abate the proceedings and his motion to compel the production of intelligence reports.  The proceedings had previously been abated, or suspended, due to Al-Tamir’s degenerative back condition, for which he’s received four surgeries in the past four months.  He had complained of pain since arriving at Guantanamo in 2007, and his previous treatment had largely consisted of ben-gay.  Only last year after Al-Tamir had become incontinent and paralysis became a threat did he receive the surgeries.

Al-Tamir lawyer Adam Thurschwell argued that due to events which occurred just after Tuesday’s hearing, the hearings in the case should be abated, or suspended.  Al-Tamir submitted a letter to the court stating that Joint Task Force (JTF-GTMO), which maintains the detention facilities at Guantanamo, had delayed his ability to relieve himself while dealing with the handcuffs agents had put on him too tightly, it’s seizure of documents his legal team had given him, and failure to deliver a special toilet seat to his holding cell which permitted the him to relieve himself without experiencing pain.  He soiled himself, and there was no running water to his cell.

Thurschwell argued that the hearings had to be abated due to the government’s deliberate indifference to Al-Tamir’s medical needs, making it impossible for him to meaningfully participate in his own defense.  Government lawyer Lieutenant Commander B. Vaughn Spencer presented the testimony of a Staff Judge Advocate (SJA) who disputed Al-Tamir’s version of events.  He testified that the papers had been taken as a part of a routine review process involving any papers provided to detainees, and that he had asked Al-Tamir three times if he needed to use the toilet. Also, the Joint Task Force Guantanamo (JTF-GTMO), which operates the detention camps had, by Wednesday – the next day- provided the special toilet seat to Al-Tamir’s holding pod, and the Base Emergency Engineering Force (BEEF) had been notified of the water issue.

Judge Reuben found that the government had not been deliberately indifferent and denied the Defendant’s motion.  Despite this ruling, Thurschwell continued to interject his concerns for Al-Tamir’s condition as the hearing continued.  Judge Reuben and the government have agreed to conduct shorter hearings with more breaks as an accommodation for Al-Tamir’s disability, which causes him increased pain with prolonged sitting.

Defense motion to compel the government to produce intelligence reports

Judge Reuben also heard argument on the defense’s motion to compel the government to produce intelligence reports regarding its interrogations of Mr. Al-Darbi.  Major Miller explained the interplay between intelligence documents known as HCRs (Human Collection Requirement), SDRs (Source Directed Requirement), and (IIRs) Intelligence Information Reports.  She explained that while the government had provided IIRs which provide information of intelligence value to Department of Defense customers, it had not produced the underlying SDRs, which show specific collection requirements for interrogators examining detainees like Al-Darbi, or HCRs, which would reveal the questions asked by interrogators and whether Al-Darbi refused to answer them.  According to Miller, these documents would provide objective facts, such as lie detector tests, as to whether Al-Darbi was telling the truth, and whether he had been asked about Al-Tamir during the earlier interrogations.  Marine Captain William DePue presented the government’s argument that the SDRs and HCRs were not discoverable or relevant, were cumulative to information contained in IIRs, and that the defense had not met its burden to permit the court to compel the production of those documents.  Again, Judge Reuben took these arguments under advisement.

During the argument on the defense’s motion to compel, the Chief Information Security Officer (CISO), who was seated to the judge’s right, leaned over and had an off the record conversation with the judge.  The CISO has the ability to press a button during the proceedings if he believes that classified information is being discussed, which would cause a light at the judge’s stand to illuminate, monitors to go blank, and the audio feed to the gallery and remote viewing sites, which runs on a 40 second delay, to be cut.  Thereafter, the judge asked each side if proceedings should be closed under Military Rule of Evidence 513.  Both the government and defense replied that there was no cause for closed proceedings.  This classified button was not pressed at any time during the proceedings we witnessed this week.

Wednesday’s hearings begun at 1 p.m., as Al-Tamir had a 10 p.m. MRI on Tuesday night.  While the judge wanted to press ahead on the arguments regarding Al-Darbi’s psychological records, he finally relented to Thurschill’s requests that the hearing end at 5:30 p.m. due to Al-Tamir’s increased pain from prolonged sitting, and the resulting encumbrance upon his ability to participate in his own defense.

Development’s in the case during the rest of the week

We and counsel involved in the case all arrived in court on Thursday morning, expecting arguments on pending motions to resume.  We were told, however, that Al-Tamir had refused to come to court due to the pain he was experiencing, and also did not waive his right to be present for the proceedings against him.

Friday’s hearing was also cancelled.  Later on Friday, we learned that a neurologist had examined Al-Tamir and concluded that emergency surgery was necessary.   Judge Reuben met with counsel for the parties at 10:30 p.m. Friday night in what is known as a 802 conference, for Rule 802 of the of the Rules for Military Commissions, to discuss how to proceed considering these developments.  As a result, the commission will convene in open session on Sunday, February 4 at 9:00 a.m., and the neurologist will be present.  We, the NGO observers at the military commissions this past week, will all look forward to reports from the next set of NGO representatives on this coming week’s developments at the military commission, as we have today (Saturday, February 3) returned to Washington, D.C.  IU McKinney law student Denton Monteith will represent the school’s Military Commission Observers Project this week.

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The Military Commission Administration Building at Guantanamo Bay, Cuba

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2019 IU JD/MBA Candidate Denton Monteith flew into Gitmo on the same United Airlines plane I flew out on Sunday

 

U.S. Military Commission Hearing against Hadi al Iraqi/Nashwan al Tamir

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Our group of NGO Observers at “Camp Justice” on the Guantanamo Naval Station

Yesterday I attended a hearing held in the military commission case against Hadi al-Iraqi, who was referred to by both the military judge, Marine Colonel Paul Reuben, and defense lawyer Adam Thurschwell as Mr. Al Tamir, the name the defendant claims.  I and observers representing five other non-governmental organizations (NGOs) and our Guantanamo escort entered the court complex through a security tent and a walkway lined with chain-link fencing covered with black cloth to provide shade and protection.  There was additional security at the entrance to Courtroom II itself, and we then received our seat assignments in the gallery.  The six of us sat in the second and third rows, and Miami Herald journalist Carol Rosenberg sat in the first row.  There was a retired serviceman observing, as was a woman in an area reserved for victim family members (VFMs).  There is a blue curtain which can be drawn to separate VFMs from other observers, but it was not drawn today.  A uniformed serviceman sat in the middle of the gallery.

The gallery has five large windows looking into the courtroom, each with a television monitor at the top.  The monitors display the person speaking, whether the judge, defense or government counsel, and they and the audio work on a 40 second delay.  We were informed that if classified information is mentioned, a police-type light to the left of the judge would turn on, the monitors and audio would stop, and white noise would begin.  This did not occur while we were at the court today.  Cameras in each corner of the gallery kept watch upon observers, who were warned that decorum would be maintained as if we were seated in the courtroom.  The proceedings were also broadcast by closed circuit television to sites at Fort Meade, Maryland and Fort Devens, Massachusetts.

The Courtroom

Inside the courtroom are six tables for each the defense and prosecution teams.  This was set up to accommodate the six original 9/11 Defendants.  Charges against one of the six has since been dropped.  A chair on the left side of each defense table is equipped with “shackle points” – a chain about a foot long secured to the floor to which Defendants may be shackled.  These shackle points have not been used on Al-Tamir since he became incapacitated, but are still used on other Defendants. About nine individuals were on each side of the aisle, including an interpreter for Al-Tamir, defense and government counsel, and their staff.

Nashwan al-Tamir, now in his 50s, was transported into the courtroom in a wheelchair by servicemen and wore an upper body brace extending to just below his chin to immobilize his neck.  He has undergone four surgeries in the past four months, and hearings set in October and December were postponed.  According to his lawyers, Al-Tamir suffered from degenerative disk disease before he was captured in Turkey in 2006, allegedly trying to reach Iraq on orders of Osama bin Laden.  He spent 170 days in secret CIA custody before being transferred to Guantanamo in 2007 and had for years complained of back pain.  In 2014 he was charged with being a high-ranking member of al Qaeda Iraq and liaison with the Taliban, and is accused of being responsible for deadly attacks in Afghanistan and Pakistan in 2003 and 2004.  If convicted, he faces a life sentence.

Tuesday’s hearing

This week’s hearings are to address defense motions requesting the government provide medical evidence requested in discovery, for a medical expert on Al-Tamir’s competence to participate in his own defense, for an order compelling access to the accused by his counsel, and an order to prohibit his forcible extraction from his quarters.  The arguments Tuesday covered only the first two of these motions.  Defense counsel Thurschwell, a Pentagon paid civilian, argued that Al-Tamir needs accommodation for his disabilities, including a hospital chair for use when consulting with his lawyers at camp 7, where he is held, a special toilet seat which reduces the pain he experiences without it, a bottle to urinate in without exacerbating his pain, and for shorter hearings with more breaks.  Thurschwell argued that Al-Tamir’s pain was exacerbated by his captors’ denial of necessary medical care until last fall, when he had become incontinent and was in danger of paralysis.

The government’s arguments were presented by Lieutenant Commander B. Vaughn Spencer, who recently became a civilian.  Vaughn did not have clear answers as to why Al-Tamir was not provided with the devices he had requested to accommodate his disabilities, or why the current senior medical officer (SMO) who was to testify about Al-Tamir’s condition did not appear.  He expressed confusion as to whether the defense was requesting abatement, or postponement of proceedings, or accommodation so that proceedings could continue, and noted that the government had no objection to Al-Tamir’s requests for accommodation.

Thurschwell pointed out that the Defendant was present and was willing to participate to the extent he could receive accommodations that could prevent him from experiencing debilitating pain.  The defense requested its own medical expert to assess Al-Tamir’s competence to participate in his own defense, considering a deposition to perpetuate the testimony of a government witness is set to take place next week, and for the court to order the Joint Task Force (JTF) in charge of Al-Tamir’s confinement to provide the requested devices. Each side presented arguments as to the applicable legal standards under the Military Commission Act of 2009 and precedent for assessing a defendant’s capacity to participate in his own defense at this pre-trial stage of proceedings, and the defense’s entitlement to an expert.

While Judge Reuben wanted to address several other issues yesterday, he granted the defense requested an end to the hearing due to Al-Tamir’s inability to relieve himself without the requested devices, while taking all other motions under advisement.  As Mr. Tamir was set to undergo an MRI last night at 10 p.m., today’s hearing will not begin until 1 p.m.

 IMG_0063     NGO Representatives at work in the NGO Resource Center

 

Paul Logan, JD ‘94

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

 

 

Arrival at Guantanamo Bay’s “Camp Justice”

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Tents where we live at Guantanamo Bay’s Camp Justice.

[By Paul Logan. Posted by G. Edwards]

We made it

After a long day of traveling yesterday (Sunday, January 28), we arrived at Guantanamo Bay, Cuba’s, “Camp Justice,” which is a “tent city” where I and other representatives of non-governmental organizations (NGOs) will live for the next week.  We are here to monitor U.S. military commission hearings against Hadi al Iraqi (also known as Nashwan al Tamir), who is accused of perpetrating war crimes in Pakistan and Afghanistan in the early 2000s. I am representing the Military Commission Observation Project of Indiana University McKinney School of Law, and traveled here with five observers from other NGOs: Zoe Weinberg (National Institute of Military Justice – NIMJ); Sarah Ruckriegle of Georgetown Law School; Kelly Mitchell (American Bar Association); Eric Helms (Human Rights First); and retired New York State Judge Kevin McKay (City Bar of New York).

Our flight to Guantanamo

We had an early start, as our “show time” at Andrews Air Force Base outside Washington was at 6 a.m., for a flight scheduled for 10:20 a.m., which actually took off shortly after 11.   We observers were told to sit together in three rows near the back of the chartered National Airlines plane.  Others on the plane were seated in groups in different sections, including the judge and his staff (in the very front of the plane), employees of the Office of Military Commissions staff, defense lawyers, prosecutors, staffs of the prosecution and defense, court reporters, translators and interpreters, security officials, and Guantanamo Bay Press Corps Dean Carol Rosenberg of the Miami Herald.  While victim’s and victim’s family members and panel or jury members are sometimes on these flights, I understand none of these were on our flight today.   Also on this flight were defense lawyers who came down to visit their clients who are prisoners who are not involved with the Hadi / Nashwan al Tamir case we came to monitor.

national airwaysWhile there were some rough patches, it was generally an uneventful and uncrowded flight.  The 757 can fit about 120 passengers, and there were a little over 80 on board, so each of us had three seats.   I finished reading my copy of Know Before You Go to Guantanamo Bay, and began to draft this blog postThe manual, produced by Indiana’s Professor George Edwards, offers many suggestions on things to do when not involved in Military Commission activities, as well as how we can prepare substantively for our Gitmo mission.  We had a very nice view of some islands out of my side of the plane, which I at first supposed to be the Bahamas, but because we were still a ways from Cuba, may have been the outer banks of North Carolina.

It was cool and rainy in Washington this morning and was sunny and beautiful here at Gitmo when we arrived after our 3-hour flight. After taxiing on the short airstrip on the leeward side of Guantanamo Bay, Naval Station authorities checked documents of the passengers. After we went through security, we met one of our escorts who will transport us around “the island,” as those here refer to the base, and boarded a ferry to cross from the across Guantanamo Bay from the leeward to the windward side of Gitmo (as the Naval Station is sometimes called).

Reaching Camp Justice

We NGOs were transported to our homes for the next week — tents in “Camp Justice”. We then made our first trip to the Expeditionary Legal Complex (ELC) to receive our badges that we have to wear when we go to court.  The ELC complex contains Courtroom II in which cases are heard against high value detainees (HVDs), as well as judges’ chambers, trailers for the defense and prosecution, court offices, witness trailers, and holding areas for the detainees.  We received a tutorial on not taking any photographs of any part of the ELC, and not bringing electronic devices to Court.

Evening

As our evening escort drove us to dinner, he received a phone call notifying him that the hearings set for today (Monday the 29th) will be closed to observers, presumably because classified information will be discussed.  We all knew that there was a possibility of closed hearings, but we were disappointed that hearings on the first day would be closed, as we are anxious to do what one of the things we came here to do — observe the proceedings. We all understand that sitting in the courtroom is only one of the things that NGOs do.  Our NGO mission has 6 parts to it: We are here to attend, observe, be observed, analyze, critique, and report on all we experience, both inside and outside the courtroom. We look forward to talking with prosecutors, defense counsel, Office of Military Commission officials, Carol Rosenberg, and others whose experiences will enlighten us and help us to do our jobs as monitors.

What we did Monday when Court sessions were

Paul Logan - Radio Gitmo - with microphone

At Radio GTMO

closed

This morning our escorts took us to visit Radio GTMO, which operates three radio stations broadcast from the base.  I purchased a bobblehead of Fidel Castro displaying the radio stations call letters on it.  Thereafter, we took a look at Camp X-ray, where prisoners were first held here in 2002.  Some may recall the photos in the news of detainees

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An Igauna at the beach

in orange jumpsuits held in primitive outdoor “cages” surrounded by chain link fence and barbed wire.  Several wooden guard towers ring the camp.  Camp X-Ray has been closed for some time.  We were informed that it has not been taken down as it is evidence in an ongoing case.

We then took the 2½ mile ridge line hike which has some dramatic vistas of the island, and saw a very large iguana.  After our hike, it was time for some R&R at Glass Beach, not far from Camp Justice.  We had another iguana visit on the beach.

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A view from the Ridge. That’s Guantanamo Bay in the background. You can also see the part of Cuba over which the Cuban government exercises jurisdiction, outside the U.S. Naval Station at Guantanamo Bay.

We are all looking forward to finally seeing the inside of Courtroom II tomorrow, and finally observing the proceedings against Hadi al-Iraqi / Nashwan al Tamir.

Paul Logan, JD ‘94

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

I’m Heading to Guantanamo Bay Naval Station, Guantanamo Bay, Cuba

Abd Hadi al Iraqi (Nashwan al Tamir)

Abd Hadi al Iraqi (Nashwan al Tamir) (2014 photo by the International Committee of the Red Cross)

[By Paul Logan, posted by G. Edwards]

I have been cleared to travel to the U.S. Naval Station at Guantanamo Bay, Cuba to observe, analyze, critique, and report on the U.S. Military Commission hearings against Mr. Abd al Hadi al-Iraqi (also known as Mr. Nashwan al-Tamir). He has been held at Guantanamo since 2007, and in 2014 he was charged with being a high-ranking member of al Qaeda Iraq and liaison with the Taliban, and accused of being responsible for deadly attacks in Afghanistan and Pakistan in 2003 and 2004.

I graduated with a J.D. from Indiana University McKinney School of Law in 1994, and am an employment lawyer in Indianapolis. When I was in law school, there were few international law opportunities for students.  Several years after I graduated, the school founded its Program in International Human Rights Law (PIHRL), which for over 20 years has offered students and graduates many international opportunities. One of its projects is the Military Commission Observation Project, which sends faculty, staff, students, graduates to Guantanamo, after the program received  special status from the Pentagon.  I am thankful and excited about this opportunity!

On Sunday, 28 January 2018, I am scheduled to travel on a military flight from Andrews Air Force Base in Washington, D.C. to Guantanamo Bay.  Motion hearings in Hadi’s case are scheduled to last all week.  While a docket can be found on the military commission website at mc.mil, the website states that many of the documents are unavailable due to pending security review or confidentiality.

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My laptop, passport, Military Orders, “Guantanamo Bay Fair Trial Manual Excerpts” (yellow), “Know Before You Go” (green). Preparing for Gitmo.

My preparation for the mission to Guantanamo has included reviewing several publications of the Program in International Human Rights Law. These include the Guantanamo Bay Fair Trial Manual: Excerpts, which has introduced to the relevant international and U.S. law, and introduced me to the Hadi case and the other pending Guantanamo Bay cases. I believe this publication will be very helpful as I seek to analyze, critique and report on my Guantanamo experiences.

The program also provided me with Know Before You Go To Guantanamo Bay: A Guide of Human Rights NGOs & Others Going to Gitmo To Attend U.S. Military Commission.  This has also been very helpful.

I look forward to this opportunity learn more about the commissions, and to help the McKinney project by contributing to its Guantanamo Bay mission.

My trip to Washington, DC

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With Professor George Edwards in Washington, DC.

I flew from Indianapolis to Washington, DC this morning (Saturday), and had a chance to do some sight-seeing in the city, and had an opportunity for briefing by Professor George Edwards, who was at Guantanamo Bay last week. He informed me that he will be traveling to Ft. Meade, Maryland on Monday the 29th of January to view the same Guantanamo Bay hearings I will view.  I was told that the Guantanamo Bay courtroom where I will be on Monday has cameras that are broadcast live back to Ft. Meade.

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Manipulating my first Eritrean meal

 

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It was delicious.

I had a chance to have Eritrean food for the first time.

My plan for further blogging on the Guantanamo Bay trip.

I plan to draft another post related to my trip from Andrews to Guantanamo, and additional posts about the substance of the commission hearings this week.

Paul Logan, JD ‘94

Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

[Posted by G. Edwards on behalf of Mr. Paul Logan]

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In Union Station, Washington, DC

 

 

 

Returned from 6-13 January 9/11 Hearings

I am a law student at Indiana University and I recently returned from Guantanamo Bay where I monitored pretrial hearings in the case against five alleged 9/11 masterminds. This was my second trip to Guantanamo Bay and I have previously traveled to Ft. Meade, Maryland to view the hearings via closed circuit video stream.

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I stand in front of the North East Gate, the only gate still in use between the U.S. and Cuba.

Detainees’ Right to Attend Hearings

The first day of pretrial hearings began on Monday 8 January 2018, all five detainees entered the courtroom as is required on the first day of hearings at the beginning of any hearing week. After an initial appearance on the first day of hearings detainees may voluntarily waive their right to be present at hearings for the remainder of that hearing week, without the need to be present in the courtroom. Two of the detainees wore camouflage clothing to court as they are entitled under Article 27 of the Third Geneva Convention.

Body Search and Defense Counsel Bag Search

The first two issues in court arose from events that occurred the same morning. The detainees were searched that morning, as is always the case before hearings, but this was the first time that the search involved patting of the inner leg, thigh, and possibly groin. Some detainees would later claim that they would not attend court on subsequent hearing days due to their unwillingness to submit to this procedure. A second issue of the morning was that defense teams’ bags were searched upon entering the courtroom, although not all defense teams abided. This was the first time that guards had asked to look through the defense counsel’s bags, some of which contained legal material. Specifically, defense counselor Nevin refused the search and returned to his vehicle where he left his legal materials. He entered the courtroom with just a single legal pad and argued that such a search violated attorney client privilege. He was eventually allowed to enter the courtroom without his bag being searched.

Laptop Issue

Late last year the guard force at Joint Task Force Guantanamo, where the detainees are housed, found that Khalid Sheikh Mohammed possessed a prayer schedule with instructions concerning modifying the laptops provided to the detainees by the U.S. government. The prayer schedule was marked with Ali Abdul Aziz Ali’s document identification number and it is unclear how it was transferred to Mohammed. Similar instructions were found in Walid Muhammad Salih Mubarek Bin ‘Attash’s cell. The prosecution claims that the instructions showed significant technical knowledge and they are suspected to have originated from Ali, who was at one time a certified Microsoft engineer. For this reason, the prosecution motioned for a forensic search of the laptops. We heard a lot of argument concerning bios, encryption, software, and internet access. The prosecution claimed that providing the detainees with laptops is an inherent threat to national security, while the defense rejected this claim and asked that the laptops be returned. Judge Pohl did not rule on the issue but did ponder a compromise where a forensic search might be completed and the laptops potentially be returned to the detainees.

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Roadside view of Camp X-Ray.

Mr. al Hawsawi was not implicated in the contraband laptop instruction issue but his laptop was seized, and Ramzi Bin al Shibh was in a unique position because he was the only detainee to have a 2016 laptop, while the other four had 2008 models. Nevertheless, all laptops were confiscated. The instructions also allegedly specify which detainees were privy to the information, with al Hawsawi and al Shibh being kept out of the loop so to speak. Still the government argued that the mere knowledge of how to modify the laptops would make it too dangerous for them to be returned. When pressed on the nature of the risk prosecution said it was impossible to determine without a forensic search, a notion that the defense argued against.

Jurisdiction Issue

We also heard about a defense motion to dismiss the case for lack of jurisdiction. This motion is based on the disputed premise that the U.S. was not at war with al Qaeda at the time the alleged crimes were committed, and so the Military Commission lacks jurisdiction over the case. The defense cited a lack of hostilities as evidence that the U.S. was not at war when the alleged crimes occurred. To counter this argument, the prosecution argued that the U.S. was at war and gave explanations for lack of hostilities. Specifically claiming that there was a lack of actionable intelligence and that the potential for collateral damage was too high. They also cited problems with arming Predator drones with missiles as an issue preventing conflict.

Threatened Prosecution of Defense

Another issue came to the surface late in the week due to the fact that the prosecution sent a letter to defense teams and indicated that they might be prosecuted under the Identity Protection Act for attempting to interview current and former CIA employees and contractors. Specifically, the letter laid out a process by which defense’s desired witnesses would be contacted, which would involve a CIA employee and FBI special agent visiting desired witnesses and informing them of their absolute right not to testify. The defense opposed this approach and claimed that they were being prevented from doing effective discovery, an element essential to due process. This issue is compounded by the fact that the prosecution refuses to provide a timeline showing where the detainees were, what was done to them, and who was there to witness it during their time in CIA custody. The government cited national security as the reason for withholding this information. Judge Pohl seemed to think that if the government would be forthcoming with a timeline and other desired information, then this might alleviate some discovery issues. No such compromise appears to be viable option, at least as far as the government is concerned.

The Issue Not Argued

There has been mounting pressure for Judge Pohl to set a target date to begin the trial. He appears unwilling to hear argument on this topic, and probably with good reason. One concern is that if he does set a trial date that delays and pretrial hearings might cause the date to be pushed back. After all, it was once said in court that the trial could begin as early as December of 2013. General Baker expressed uncertainty with regard to trial date and stated that the issues from the week made him feel like a trial was further away than ever. He cited a lack of cooperation, between defense teams and the prosecution, on the discovery process as justification for this position. Although we thought we might hear some argument on this issue, Judge Pohl did not allow this, apparently fearing that such argument would be premature.

Exploring the Bay

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A Cuban observer monitoring the North East Gate watches us through binoculars.

On Tuesday the court convened for a classified 502 hearing, which gave us an opportunity to explore the bay since we did not have the required clearance to attend. We rented a boat and journeyed out to Hospital Cay, an island in the Bay once used to quarantine those with Yellow Fever and Influenza. After visiting the island, we stopped for a short swim. The boat driver also took us to the north end of U.S. controlled Guantanamo Bay where we could see the water bridge that separates the Naval Station and Cuba, from a distance.

That afternoon we headed over to Marine Hill and departed on a tour of the North East Gate, which is the only gate still in use between the U.S. and Cuba. This afforded us the opportunity to take pictures and hear the history of Guantanamo Bay from the time Christopher Columbus landed there through present day.

We returned to court on Wednesday morning which is when the court took up three main aforementioned issues spanning the remainder of the week. Those issues were: the seizure of detainees’ laptops, a jurisdictional issue turning on when the conflict began between the U.S. and al Qaeda, and threatened prosecution should the defense teams attempt to contact any current or former CIA employee or contractor.

Ben Hicks

3rd Year Student

Indiana University McKinney School of Law

Heading to Guantanamo Bay Today

I’m at Andrews Air Force Base waiting for a plane to take me to Guantanamo Bay, Cuba, to monitor hearings in the US Military case against Mr. al Nashiri, who allegedly masterminded the bombing of the 2000 USS Cole off the coast of Yemen. That bombing killed 17 US sailors and wounded many more.

The hearings this week are scheduled to focus on many issues, including the status of lawyers who were detailed to represent Mr. al Nashiri, who were ordered to appear at the hearings, but who do not appear to be here at Andrews for the flight. Our flight will carry many dozens of others related to the case, including the prosecutors, the judge and his staff, media, court reporters, interpreters and translators, security personnel, and guides and escorts.

I will plan to report back in from Cuba.

George Edwards

Director (Founding), Military Commission Observation Project

Indiana University McKinney School of Law

Heading back to Guantanamo Bay, Cuba for Hearings in the Case of the Alleged 9/11 Masterminds

I was recently selected to travel to Guantanamo Bay, Cuba on my second mission to monitor the U.S. Military Commission hearings at the remote U.S. Naval Station.

I am representing the Military Commission Observation Project, which is part of the Program in International Human Rights Law at Indiana University McKinney School of Law, where I am a 3rd year student.

Once again, my remit is to attend, observe and be observed, analyze, critique and report on hearings against 5 men who are alleged to have plotted the 9/11 attacks on the World Trade Center and the Pentagon.

Preparation for My Mission

I traveled to Guantanamo Bay once before to monitor hearings. I also traveled to Ft. Meade, Maryland, where a different set of Guantanamo hearings were broadcast live from the Guantanamo courtroom via CCTV to a secure room at the Maryland army base. My past trips have helped shape my preparation for this trip.

I found court papers in this case on the Military Commission website – www.mc.mil. The filings are not complete, or at least I do not have access to all of the filings since some of the filings are behind a security shield and will not be posted on that website until about two weeks, enough time for the documents to undergo a security review. I can see the names of some of the unavailable documents, and that gives me an idea of what substantive motions to expect.

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A central and important question in December seemed to be; what constitutes “Part of Al Qaeda”? Throughout unofficial and unauthenticated transcripts on the mc.mil website this issue is discussed during the December hearings and an FBI agent and behavioral analyst’s testimony is available in a second transcript. The second transcript includes testimony about 2007 interrogation of Mr. al Hawsawi as well as a variety FBI activity throughout the world.

Another important issue that was litigated in December is “when did the armed conflict with al Qaeda begin”, since if there was no armed conflict at the time the alleged crimes were committee, they cannot be tried at Guantanamo, since the military commissions only try war crimes and you have to have an armed conflict in order to have a war crime.

Staying up-to-date

It can be difficult to stay up-to-date on the hearings due to the limited access to court documents and the fact that hearings can only be viewed from specific secured locations, such as Ft. Meade. A good way to stay up-to-date on the proceedings is read the websites of journalists who cover Guantanamo, and websites of non-governmental organizations (NGOs) that focus on Guantanamo. Another way to stay up-to-date is to speak with previous observers who have traveled to monitor the hearings. This can help provide a context to understand some issues that might otherwise not be clear because they continue from previous hearing dates.

Of course, it is also very helpful to review materials prepared by the Indiana McKinney School of Law’s Military Commission Observation Project, also known as Gitmo Observer – http://www.GitmoObserver.com. We have the Guantanamo Bay Fair Trial Manual, and the Know Before You Go to Guantanamo Bay.

My travel.

I was originally scheduled to be in Guantanamo Bay for a week, however the Pentagon stated that they needed to consolidate NGO flights during the month of January, and they asked observers to extend our stay a few extra few days. This means that we will be in Cuba for eleven days, instead of 7. The Pentagon informed us of this schedule change only a few days before our scheduled departure, and it has prevented a few NGO observers from attending the hearings.

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Courtroom Time

During my last mission to Guantanamo Bay Judge Pohl granted a motion to continue the hearings, and we had far less time in court than would have otherwise been the case. I hope that during this trip we are able to proceed with full hearings, as that will permit me to report on substantive court proceedings.

Because of the motion to continue the hearings during my last trip I had the opportunity to see parts of Guantanamo Bay Naval Station and Joint Task Force Guantanamo that I might not have otherwise had time to see. I was fortunate enough to see the Northeast Gate and also ride back to see some of the detention facilities of Joint Task Force Guantanamo, and eat lunch at the seaside galley restaurant with other observers and chat with defense teams.

Ben Hicks

3rd Year Student

Indiana University McKinney School of Law

 

 

 

 

 

 

 

 

 

 

 

 

Traveling to Guantanamo Bay, Cuba

I am currently sitting at Joint Base Andrews in Maryland waiting to board the commercial aircraft carrier that will take me, along with four other NGO observers, to Guantanamo Bay, Cuba. While at Guantanamo, I will have the opportunity to attend, observe (and be observed), analyze, critique, and report on the al Nashiri military commission proceedings on behalf of the Military Commission Observation Project (MCOP) through Indiana University McKinney School of Law. Mr. al Nashiri is facing war crimes charges as the alleged mastermind of the October 2000 bombing of the USS Cole off the coast of Yemen, killing 17 sailors and wounding many more.

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Sunrise while waiting for the flight at Joint Base Andrews.

On Friday 10 November I drove from Indianapolis, Indiana, where I am a current second-year student at Indiana University McKinney School of Law, to the Washington, DC area. On the morning of 11 November, I drove to the Air Passenger Terminal at Joint Base Andrews.

After I arrived at the terminal, I met up with the other NGO observers, and handed out copies of the Guantanamo Bay Fair Trial Manual and the Know Before You Go: Guantanamo Bay, both of which are produced by the Indiana University McKinney School of Law Program in International Human Rights Law. The other NGOs are representatives from: the American Bar Association, Seton Hall University School of Law, the Pacific Council on International Policy, and the Georgetown University Law Center.

The flight is scheduled to take approximately three and a half hours. For now, though, I am ready to board the flight and am excited for the week ahead!

 

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 second observation of war court proceedings at Guantanamo Bay, Cuba

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

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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

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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.

Final thoughts

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

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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)

Program in International Human Rights Law

Indiana University McKinney School of Law

My second trip from Andrews Air Force Base to Guantanamo Bay, Cuba

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. Our Indiana project was granted non-governmental organization (NGO) status, which permits the project to send monitors (or “observers”). I am scheduled to be at Guantanamo Bay, Cuba, from 14 to 21 October 2017.

My role as an NGO observer is to attend, observe and be observed, analyze, critique and report on the military commissions. My goal is to provide an independent and impartial account and analysis of what I observe, inside and outside the Guantanamo courtroom.

This is 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.

Arrival at Andrews

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4 of 5 NGOs posing with the Manual Excerpts and guidebook.

I arrived at Andrews Air Force Base Visitor Center where I met up with the other NGO observers at around 6:00AM. We were escorted onto the base by authorized personnel and directed where to go next to check in to our flight to Guantanamo. We checked in at
6:15AM and departed Andrews at 9:30AM.

This morning the NGOs discussed the latest news out of Guantanamo, including the sentencing of Mr. al Darbi yesterday (Friday, 13 October 2017) to 13 years in prison. In 2014, al Darbi pleaded guilty to war crimes charges, and agreed to cooperate with the government. He has already testified against two defendants in other Guantanamo cases.

We also learned on Friday that all the civilian defense lawyers for al Nashiri, who is charged with orchestrating the bombing of the USS Cole in 2000, quit the representation. Here is a link to the press release by capital defense attorney, and key member of the defense Rick Kammen, from Indianapolis.

Arrival at GTMO

We arrived at Guantanamo after an uneventful flight. We were processed into Guantanamo Bay and permitted to enter the Air Terminal waiting room, where I spotted Professor George Edwards, who had been at Guantanamo for the al Darbi sentencing and who was flying back to Andrews on the plane that brought me to Guantanamo. Professor Edwards and I had a rushed moment to take photos in front of the Guantanamo Bay Air Terminal.

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Took advantage of a brief encounter with Professor Edwards to snap a picture at the Passenger Terminal.

The 5 monitors boarded a van that took us to a ferry that would take us across the bay to the area of Guantanamo where we will live for the next week – Camp Justice – and where the courtroom is located. We were taken to a secure trailer inside the court complex to obtain our security badges, then were driven to the Navy Exchange so we could pick up food and other supplies. After, upon arriving back at the tents where we will live, we were given a chance to quickly unpack and prepare our beds.

The 5 monitors attended a BBQ hosted by the defense team of Ammar al Baluchi, who is one of the five defendants in 9/11 case. In attendance were Brigadier General John Baker, who is Chief Defense Counsel of the Military Commissions Defense Organization, Mr. James Connell, a civilian death penalty defense attorney, and various other members of the defense team, including lawyers, paralegals, and other staff.

At the BBQ, Mr. Connell gave us a rundown of the motions on the docket for this week’s hearings, which will help us prepare for our observation when the commission hearings pick back up on Monday, 16 October. We also had the opportunity to speak with BG Baker, Mr. Connell, and the rest of the defense team.

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4 of the 5 NGOs on the ferry after landing in GTMO.

It is quite apparent to me that this defense team is invested in transparency and takes a very open, very relaxed approach when interacting with NGOs. The team stresses the importance of having NGOs at the hearings, since we are basically “the eyes and ears” of the world, apart from the media and any channels the defense team may have of sharing with the public what goes on in one of the most high-profile, otherwise inaccessible proceedings in American history.

Preparing for Monday (more…)

Second Observation at Guantanamo Bay, Cuba in the case against Khalid Shaikh Mohammed, et al.

I have been nominated by the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law and confirmed by the Pentagon to attend the military commission hearings in the case against Khalid Shaikh Mohammed and four other alleged masterminds of the 9/11 attacks. I will be observing from the military commission court at Guantanamo Bay, Cuba, from 14 October until 21 October 2017.

Previous observations and nomination

 This will be my third observation in the 9/11 proceedings. My first observation was at Ft. Meade, Maryland, where I observed hearings in the same case as this observation, against Khalid Shaikh Mohammed, et al., via CCTV in October 2016. My second observation was in January 2017 at Guantanamo Bay, Cuba, where I had the chance to observe the hearings in the case against Hadi al Iraqi, an alleged high-ranking member of al Qaeda.

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Speaking with Professor George Edwards at Ft. Meade, Maryland before leaving back to Indiana after observing a pre-trial hearing via CCTV.

I was initially nominated to observe earlier this month at Guantanamo in the case against Hadi al Iraqi, but the hearings were canceled due to Hadi’s health and an urgent medical issue. The Miami Herald reported that Hadi had been referred for neck surgery after a period of time of known health issues. Hadi also had lower back surgery in early September 2017 that he is recovering from.

Paperwork

In order to observe through the MCOP, there are various levels of forms to be submitted to both the Program Director, and the Pentagon.

  1. Pentagon Requirements The documents required by the Pentagon are 1) Hold Harmless Agreement, 2) Invitational Travel Worksheet, 3) Navy Base Access Pass Registration, and 4) NGO Ground Rules, along with a biography and picture. As an observer going through an Indiana University program, the forms must go through the appropriate channels in order to be approved by the university prior to sending to the Pentagon. Note to future observers: this will take time. Be sure you submit your paperwork immediately to avoid potential delays.

Once I received the stamped approved documents from IU, I forwarded these requirements to my Pentagon contact. The Pentagon contact will complete their formal review process, and will email confirmation if everything is in order. This may take a few days.

  1. MCOP Requirements The MCOP document procedure is more simple than the Pentagon procedure. In order to participate through the MCOP, the observer must timely submit any and all Pentagon-related communication to the Program Director. He will facilitate the initial document review, IU review, and final review prior to submitting anything to the Pentagon. This will help in avoiding potential delay if any information is missing from the forms.

The MCOP requires for the participant to submit blog posts to this blog as a program requirements, an MCOP checklist to be completed by the observer, and proof of health insurance for the observer going abroad or even observing domestically.

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The female NGO tent that will be “home” for the next week at Guantanamo Bay, Cuba.

Preparation: The Gameplan

To prepare for my observation, I am re-reading the Know Before You Go to Guantanamo guidebook, since it has been a few months since my last observation. I need to prepare appropriate clothing to take with me on the weeklong trip, which includes professional clothing for events and hearings, and casual clothing for downtime. The observer is also What to Expectresponsible for booking her own travel to and from Andrews Air Force Base outside of Washington, D.C., and any overnight accommodations that are necessary on the night before arrival into D.C. and the day of return from Guantanamo. My university-sponsored foreign health insurance is in place and my itinerary is scheduled.

This week is fall break for my law school, but I still have assignments and a mid-term exam to prepare for and complete in the next couple of days prior to leaving for D.C. on Friday morning.

 

Sheila Willard (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law