My Trip to Guantanamo Bay

Today, Monday, 3 November 2014, has been an eventful day.

The day began by arriving at Andrews Air Force Base at 7:00 a.m. to be escorted through the gate to the air terminal.  After checking in and being issued my ticket I waited in the terminal until all the other NGO’s had assembled.  While we were waiting (several hours) we introduced ourselves to each other.  There are 10 NGO’s representing a variety of organizations from around the country who are participating.

Copy of Guantanamo Bay Fair Trial Manual.

I also took the opportunity to pass out copies of the Guantanamo Bay Fair Trail Manual for U.S. Military Commissions that Prof. George Edwards and his Indian a University McKinney School of Law students have been working on.  The Manual was much appreciated by everyone, and will be very useful for all the NGO’s during the hearings.

The only other delay in getting ready to depart was a brief diversion outside while the Secret Service swept the terminal in preparation for Vice President Biden’s departure on a different plane.

Our flight to Cuba; Landing at GTMO

The flight to Cuba was uneventful. The charter flight was about 3 hours long (It would have been closer to 2 hr. 15 min. if Cuba permitted us to fly over the island).

Once we landed at Guantanamo Bay we unloaded and waited to go through document check in.  From there everyone boarded vans to drive down to the dock to catch the ferry across the bay to the main part of the base.  From there we were driven to Camp Justice which is a tent city that has been set up on the old WWII vintage runway that is no longer in use.  We had some time to get settled into our bunks, fortunately while each tent sleeps 8 there were only 4 men and 2 male tents so we had plenty of room with just 2 per tent.

Arriving at Camp Justice — Our tent city home for the week.

After getting settled in, we made a trip to the base NEX to stock up on supplies. The NEX is pretty much like a small town Walmart and has all of the essentials.  After that trip we headed back to our tents again and then rendezvoused shortly thereafter for our meeting with General Martins who is the lead prosecutor for the Military Commissions.

Meeting with General Mark Martins, Chief Prosecutor

I will post a blog that discusses this meeting in more detail, but I was extremely impressed with Gen. Martins and the few members of his team that he had with him.  We had over an hour and a half with him and we were able to ask him pretty much anything we wanted.  Even with some of the more challenging questions that were asked, he answered directly and faced some of the particularly challenging issues head on.  Again, I will have a separate post covering this meeting.

Some of the tents in Camp Justice. It is built on an abandoned WW II air strip.

A Jamaican Dinner; Day’s End; Tomorrow

After our meeting with Gen. Martins we all loaded into the van for a short ride to the Jamaican Jerk Chicken restaurant. The food was great and we enjoyed the very pleasant evening weather.  From there it was back to Camp Justice for a few conversations among the group about our day so far and our meeting with Gen. Martins.

My bed in my Camp Justice tent.

Based on the current itinerary, we are scheduled to reconvene for breakfast tomorrow (Tues.) get our credentials, possibly have a boat tour around the base and work on some of our various projects.

What About WiFi?

I have to say that the internet issue is as bad as I had been warned it was.  It seems like everywhere we go everyone is checking their phones and computers to see if we have stumbled on a Wi-Fi signal that we can access.  When we are lucky enough to get a signal the speed is extremely slow.

Hopefully, I’ll be able to post this sometime tomorrow (Tuesday)!

I was honored to be selected last week to serve as an observer for the Al Nashiri (USS Cole Bombings) hearings at Guantanamo Bay, Cuba the week of Nov. 3-7. I have previously participated in the Program in International Human Rights Law and its U.S. Military Commission Observation Project at IU McKinney Law School in mid-June, 2014.  At that time, I observed the hearings of Khalid Shaikh Mohammad and the other accused 9-11 co-conspirators via a secured video link at Ft. Meade in Maryland.  This June trip was after an earlier scheduled hearing I was planning on attending was canceled at the last minute due to a schedule change by the presiding judge.  Since then, and based on what has happened to other participants in this program, one thing I fully count on is last minute schedule changes.  For that reason, I’m trying not to get my hopes up to high about observing the hearings until I am actually on the plane headed to Cuba.

Plans for Future Blogging

The overall mission of the IU McKinney School of Law’s Program in International Human Rights Law and the U.S. Military Commission Observation Project is to “Observe, Analyze, Critique, and Publish materials on the hearings.” As I prepare for the trip I will be posting several bog entries about various aspects of this assignment including the preparation process, preliminary research, work on the Fair Trial Manual, and of course the actual hearings.  From what I hear, due to the lack of Wi-Fi and internet access at the base (at least for NGO’s and journalists) much of my reporting of my observations from the actual hearings may be more post-visit than actually during the week of my visit. (more…)

On September 29 I was notified by the Pentagon that the October hearings for Al Nashiri had been cancelled. Consequently, I was unable to travel to Guantanamo Bay for the hearings scheduled between October 7-10. The Pentagon did not provide an explanation for the cancellation. Al Nashiri’s next court hearing at Guantanamo Bay is not scheduled until the week of November 3rd of this year.

The delay in the case against Al Nashiri raises potential concerns for the defendant’s right to trial without undue delay, as set forth in the International Covenant on Civil and Political Rights (ICCPR), as well as other international human rights documents like the Body of Principles on Detention, and the International Criminal Court Statute. The ICCPR, in Article 14(3)(c), guarantees all persons charged of criminal offenses the right “to be tried without undue delay.” In addition, Article 9(3) states that

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

One should note that Al Nashiri has been detained since November 2002 for his alleged role in the 2000 bombing of the USS Cole, and that charges against him have been pending since 2008, though they were dropped dropped for three years until the Government reinstated them in 2011, the defendant remaining in custody throughout the intervening period. (more…)

Handout on Indiana McKinney Law Gitmo Observer Research Project

Indiana McKinney Law Student Guantanamo Bay Gitmo Observer Project

During the Autumn 2014 semester, Indiana University McKinney School of Law students will research domestic and international rights to be afforded to stakeholders in the U.S. Military Commissions being held at Guantanamo Bay, Cuba. The research will be published as part of the Guantanamo Bay Fair Trial Checklist.

Professor George Edwards, who has incorporated this project in his International Criminal Law class stated: “The Indiana McKinney law students in my class will help all Guantanamo Bay stakeholders understand what their rights are. We care about the rights of victims and victims’ families, rights of the prosecution, rights of the media, rights of defense and prosecution, and rights of other stakeholders. International and domestic law provide that all stakeholders are entitled to the right to a fair trial at Guantanamo”.

The project is being conducted by The Gitmo Observer, which is the name given to the Military Commissions Observation Project (MCOP) of the Program in International Human Rights Law (PIHRL) of Indiana University McKinney School of Law.

Guantanamo Bay Fair Trial Checklist

The Gitmo Observer will provide a resource (e.g., The Guantanamo Bay Fair Trial Checklist) to assist all Guantanamo Bay stakeholders, particularly those seeking to ascertain whether fair trial rights are being afforded to all. Gitmo Observer representative travel to Guantanamo Bay will facilitate research and contact with different stakeholders who may use Gitmo Observer materials for informational, (more…)

Be glad this is on a typed blog, no way anyone could read the notes I took from the hearing.

At Ft. Meade for a 9-11 case hearing

Yesterday I was able to visit Fort Meade and observe the 9/11 hearings taking place in Guantanamo Bay.  The Judge, Army Colonel James L. Pohl, had decided that the only matter to be heard was an “emergency” motion by the Government on the severance of Ramzi bin al Shibh (“bin al Shibh”) from the other four defendants (including Khalid Shaik Mohammed).  bin al Shibh was the only defendant in the room that morning and the camera only had a quick shot of him at the very beginning of the hearing.  It was interesting to see him sitting there having what looked like a very casual conversation with someone, knowing in my mind that he is facing capital charges.

The hearing opens

The hearing started with Judge Pohl giving a brief synopsis on bin al Shibh and his case, concluding that the court, sua sponte, decided to sever bin al Shibh from the rest without any argument from the Government or Defense (what I took to be a somewhat rare move).  Judge Pohl ended his opening by stating that the hearing would ONLY focus on the severance matters, but that any conversation regarding bin al Shibh’s mental competency should be on procedural matters NOT substantive (reiterating this multiple times).  Judge Pohl then opened the floor to the Government in what was much like an appellate oral argument (due to the fact that both sides did not have an opportunity to brief arguments on the matter).

The government argues

The Government argued that the issue of severance in this setting should be analogized with the Federal Rules which would allow severance if the defendant raises and claims that he is facing unrelated charges from his co-defendants, .  The Government took the time to stress that this is NOT the case with bin al Shibh; He did NOT raise a motion to sever and Government took great measures to NOT bring certain charges in order to maintain a joint trial of all the defendants.

The Government next addressed any concerns of delay if Judge Pohl were to not sever bin al Shibh, specifically any speedy trial concerns, noting that reasonableness is the key factor (as it is with EVERYTHING in criminal law).  The Government started the speedy trial discussion noting that bin al Shibh has not raised any speedy trial concerns, rather it was a separate defendant, and that when we are discussing joint defendant’s the speedy trial clock is “unitary” between them (ie it must be reasonable among all of them).  Simple prejudice, the Government noted, is the last resort for a court to grant severance, due to a preference for joint trials.  The Government argued (per U.S. vs. Vasquez) that the standard and burden for prejudice is very high, requiring compelling prejudice, which places this matter in a unique situation as bin al Shibh has NOT raised any speedy trial concerns (begging the question how he could meet his burden?).  The Government  concluded this discussion that the court should ONLY look at the delays attributed to them and consider whether they are “reasonable” in 1. Length and 2. Reason, and whether 3. The Defendant has asserted this right, and, finally, 4. Whether there is any prejudice to the Defendant’s speedy trial right (compelling prejudice).

Judge Pohl interrupted to make clear that the Government’s position is (which the Government agreed that it was) “We can move along with a joint trial by addressing bin al Shibh’s unique issues first and then move along with the trial.”  The Government noted that supporting Federal case law, though not directly controlling in the Military context, would support this position that the ten-month delay in deciding bin al Shibh’s unique issues is not unreasonable or prejudicial (with caselaw holding that delays of much longer (2 years) are “reasonable” within the speedy trial context), that there is still much discovery to be done, and that not trial date or deadlines for motions have been set.  Because of this, the Government finished, there is not prejudice to bin al Shibh or the defense team, and their actions of not raising these concerns are much more indicative that no prejudice exists.

The defense argues

The Defense took the podium next to address the matters, though much shorter than the Government.  Defense counsel started with his concern that he was not given 14-days to response to the “emergency” motion filed by the Government (noting that Judge Pohl had specifically stated that there would be no “emergency” motions without such response).  Judge Pohl stated that he would allow him the full 14-days to respond, but wanted to know whether he had any position on the matter presently.  The Defense stated that it was difficult for them to have a position, so Judge Pohl posited whether if he were to vacate the severance order today, allow bin al Shibh the full 14-days to fully brief the issue, move on to other matters and then return to the severance issue later would be prejudicial.  The Defense stated that it would be very prejudicial due to the fact that the Judge issued a severance order and then, in a quasi-appeal, decides that it was pseudo-clear error to have done so.

The Defense finished with what I believed to be the reason Judge Pohl decided to NOT have any hearings today (Tuesday August 12): bin al Shibh is in a unique position as it relates to the other defendants with his 292, 909 (mental competency) and 152 (living conditions issue) matters pending.  Specifically, if no severance or should the court wish to wait deciding the matter, these matters need to be cleared up before the court can even consider anything else as bin al Shibh MUST be present at these matters to voice an argument.  It is these upcoming and pending issues that the court MUST consider in deciding whether to grant or deny a severance (arguing that in this context the “severance” matter is much broader than in a Court of Appeals).

Recess

After a brief delay in denying the Government from responding with separate counsel (Gen. Martins attempted to speak), the Judge Pohl concluded that he would not hear matters on Tuesday.

My experience

The entire experience was fantastic, although it was a shame that today’s hearings were cancelled as this was to be my last day.  The proceedings did seem to be “fair” from a purely objective standpoint, granted my view was ONLY on the bin al Shibh severance matters (thus I could see how a trial or other matters might not seem as fair as they should be).  It will be interesting to see how Judge Pohl decides the severance and how the remaining matters with bin al Shibh are address (ie expeditiously or over time).  I hope to be able to go back to Fort Meade or Guantanamo soon to watch move and recommend to anyone interested that they take the time to do so as well.

This will be right after you turn onto Llewellyn Ave.

Ft. Meade logistics

To those going to Fort Meade in the future, I recommend finding a hotel near the base and to leave early to get to the base.  The hotel I stayed at was 3 miles awa

ut I was only able to get in through the entrance on Annapolis Rd (175) and Clark Rd.  You will go through a quick ID and vehicle check, then stay on Clark until it T’s into Cooper Rd, Turn left on Cooper until it T’s into Llewellyn Ave., Turn left and the Post Theater will be on your right.

Next week I will have the opportunity to observe some of the hearings for Khalid Shaik Mohammad as well as several co-defendants in their trial for the September 11th attacks. As a law student about to enter my final year of law school, I am interested in observing the hearings and seeing how the law is applied in this situation.

Patriotism runs strong in my family and military hometown of Pensacola, Florida. I remember 9-11 as the day the skies were eerily quiet in my hometown, as Pensacola is the home of the Blue Angels. Classic behavior for a military town, my neighborhood gathered together to line the streets with American flags in honor of one of our own, a fallen Marine who died in Iraq in 2005 at just 27 years old. Further, I clerked for a Florida state judge last summer, who impressed on me a greater appreciation for loyalty, devotion, and nationalism. He exemplifies the American spirit of serving one’s country both as a soldier defending America overseas in Kuwait and Iraq and as a legal public servant in the capacity of judge. I am aware that my background and local interactions with the people in my hometown have molded and shaped my perspective.

I have found my legal experiences outside the classroom have had a profound and lasting impact on me more than an academic lecture. I look forward to witnessing the hearings and gaining perspective of American jurisprudence.

Abd al Hadi al Iraqi – The Defendant

In September 2014, I am scheduled to travel to Guantanamo Bay, Cuba to observe proceedings related to charges against Abd al Hadi al Iraqi.  Military Commission charges against Hadi allege that he was a senior member of al Qaeda and liaison to the Taliban and Al Qaeda in Iraq, and that he led insurgency efforts in Afghanistan and Pakistan.

These alleged activities included supporting and directing attacks against U.S. and coalition forces, utilizing illegal means, such as attacks on civilians, using perfidy, and firing on medical personnel during efforts to evacuate casualties. He also stands accusedof denying quarter by directing that coalition forces should not be taken alive.

Following his activities in Afghanistan and Pakistan, he is also alleged to have traveled to Iraq for the purpose of helping to lead al Qaeda in Iraq.  The maximum sentence for these charges, if convicted, could be confinement for life. (Dept. Defense News Release 426-13, 10 June 2013).

A recent article by Carol Rosenberg in the Miami Herald (Iraqi Appears in Guantanamo Court on War Crimes Charges, 18 June 2013) states that Hadi was captured in Turkey in 2006, and was held by the CIA until 2007, when he was transferred to Guantanamo. Rosenberg’s article describes a long career for Hadi, including service in the Iraqi Army during the 1980-88 war with (more…)

My name is Jason Sprinkle and I will begin my third and final year at the Indiana University Robert H. McKinney School of Law this month. I applied to attend the criminal hearings of Abd al-Rahim al-Nashiri in Guantanamo Bay as a participant in the Military Commission Observation Project (MCOP) in April 2014 but was not selected. I was delighted to be notified that I was selected to attend the hearings this September.

My personal background does not include military service and none of my close relatives have served. It was not until I began law school that I seriously began to consider a legal career with our armed forces. I have participated in initial interviews with the Army, Air Force, Navy, and Marine JAG C0rps for entry into the direct appointment programs of each branch. During my second year of law school, I trained for over six months with the Marine Corps officer candidate pool in Indianapolis. I have never experienced such a challenging and rewarding period of personal growth. I pushed myself to my mental and physical limits and gained a profoundly deep respect for the men and women who serve our country. I eventually obtained a perfect score on the Physical Fitness Test and gained invaluable knowledge and skills. Although I narrowly missed selection for Officer Candidate School this spring, I will continue to pursue a legal career with our armed forces and will submit my applications to the other branches this fall.

My sincere interest in pursuing a long-term career with the JAG Corps stems in part from my commitment to the preservation of human rights. I believe that all participants in our justice system deserve a fair trial, whether that be in civilian or military court. I feel that the JAG officers serving our armed forces are best suited to preserve the integrity of our military justice system for both victims and defendants. I hope that my observation of the proceedings in September will reveal that these ideals remain intact within our military courts.

I am currently traveling out west with family. In fact, I typed this first blog post as I gazed out at a gorgeous sunset here in Glacier National Park. Given my remote location and lack of accessibility to a printer/scanner, I had many difficulties in completing the required forms for both Indiana University and the Military Commission Observation Project (thank goodness the lobby of our lodge here in Montana has free wifi). I fully understand that civilian travel to Guantanamo Bay for such a serious purpose requires the utmost attention to detail for security reasons and I sincerely appreciate the guidance and patience of the Office of Military Commissions  NGO Escort Team.

Immediately after being notified of my selection to attend the hearings of Abd al-Rahim al-Nashiri, I began to conduct light research of the facts surrounding his capture and detention. Before I became involved with the MCOP I was vaguely aware of the defendant’s name and the bombing of the USS Cole in 2000. However, it was not until I began my research that I became aware of the fact that the defendant has been detained since 2002.

I enter this experience with very little knowledge of Guantanamo Bay nor the legal proceedings that occur there. I have several mentors who have served in Guantanamo Bay in both legal and non-legal capacities. However, our discussions of their experiences have never included any specifics of the military justice system or al-Nashiri’s case. Therefore, I will do my very best to observe the proceedings with as little bias as possible. I strive to conduct a thorough and unprejudiced observation of the hearings and I take this responsibility very seriously.

Our unit is scheduled to depart Andrews Air Force Base on the morning of Monday September 7 and return on Saturday September 13. Although it will be exactly one month before I depart, I very much look forward to sharing my future experience here with The Gitmo Observer. Please stay tuned for future photograph and blog postings.

Guantanamo Bay Guard Detention Center

Affiliates of Indiana University McKinney School of Law are eligible to be considered for possible travel to Guantanamo Bay, Cuba to observe and monitor U.S. Military Commission hearings.

The IU McKinney Military Commission Observation Project (MCOP) goes inside the courtroom in Cuba, and serves as eyes and ears to the outside world about these critically important trials. The MCOP offers participants a unique opportunity to contribute to the promotion and protection of human rights of all involved, including the defendants, the victims and their families, the prosecution, the press, and other stakeholders.

MCOP participants fly to Guantanamo Bay, Cuba for the hearings, or travel to Ft. Meade, Maryland to witness the hearings via secure, live video-link.

For information about upcoming hearings and eligibility to participate in the MCOP, please click this link.

For stories of MCOP participants who have traveled to Guantanamo Bay & Ft. Meade, please visit www.GitmoObserver.com.

For twitter, please follow @GitmoObserver.