A military flight is scheduled to depart for Guantanamo Bay, Cuba, tomorrow, Tuesday, 6 September 2027, ferrying dozens of legal professionals and others to a pre-sentencing hearing for Mr. al Darbi, who pleaded guilty to charges related to a tanker bombed off Yemen’s coast in 2002.

But Hurricane Irma appears to be barreling towards Cuba, making travel to the remote war court precarious, jeopardizing the Thursday to Friday hearings.

My role as legal monitor

I am scheduled to be on that plane tomorrow from Andrews Air Force Base to Guantanamo.

I am an independent legal monitor, invited to observe hearings pursuant to the Pentagon’s stated desire for Guantanamo Bay transparency. I examine rights and interests of all categories of Guantanamo Bay stakeholders, including rights and interests of the defendants, the prosecution, victims and their families, media, the public, the prison guard force, and others. On these missions I am typically joined by other monitors representing human rights and other  non-governmental organizations (NGOs).

No cancellation notice

As of 1:00 p.m. on Tuesday, 5 September 2016, we have received no official notification of any flight or hearing cancellation.

Of course we know that the Office of Military Commisions has their hands full sorting out logistics for this week’s scheduled pre-trial hearings, but also hearings for the next three weeks. They handle matters such as the flights for everyone who travels to Guantanamo, multiple categories of travel and security paperwork, accommodations on the ground at Guantanamo, local transportation, and escorts. And when hearings are cancelled, arrangements for all the above also need to be cancelled–and then rescheduled.

Should we proceed to Andrews at the crack of dawn tomorrow for the scheduled flight? Or skip it, even if it is going forward, given Irma? When will Mr. al Darbi’s pre-sentencing hearing occur? 

Stay tuned!

I traveled to Guantanamo Bay, Cuba to monitor the 21 – 25 August 2017 hearings in the U.S. Military Commission case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon.

I represented the IU McKinney Military Commission Observation Project (MCOP) of the Program in International Human Rights Law (PIHRL).  My role was to observe the proceedings and provide independent, impartial, and accurate accounts of the proceedings.  Below I describe the week of hearings and activities that I and my fellow NGO’s participated in.

Monday 8/21 – Full Day of Hearings

Courtroom Setting & Preliminary Matters

The three other NGO’s that I was traveling with, myself, and our monitors entered the courtroom for our first day of hearings Monday morning at 8:30 for a 9:00 start time.  During our meeting with Mr. Connell, Learned Counsel for Mr. al Baluchi, on Sunday, he told us that this is the 25^th set of hearings that he has participated in while representing their Mr. al Baluchi.  During this preliminary time before the hearings convened officially, while I was sitting in the observation area attached to the courtroom, I had a few observations about the surroundings and the logistics  as people entered and prepared for the hearings to begin.  On his way into the courtroom Gen. Martins individually greeted and shook the hands of the victims’ family members who were in the in gallery.

In the courtroom itself with two guards on either side of each defendant, each of the five detainees were brought in one at a time and escorted to their places at their respective counsel’s tables.  The detainees were unshackled and dressed in what we were told was traditional afghan clothing.  It appeared that all of the female civilian defense team members were wearing headscarves and modest clothing covering everything but their hands in deference to their client’s religious beliefs, while none of the female military personnel on the defense, prosecution, or guard detail seemed to dress any differently than they otherwise would (i.e. traditional western business attire and military uniforms).

When the judge entered the room all of the people in the courtroom and the viewing gallery stood except the detainees.  During the proceedings, the security force inside the courtroom consisted of approximately 19 military guards, three of which were female, who sat in chairs on the side of the courtroom closest to the detainees.  During the proceedings the guards rotated in and out of the courtroom periodically in pairs, presumably to provide a break for the guards during the proceedings.

Judge Pohl initially addressed each of the accused and asked them each individually if they understood that they had a right to attend the hearings but that they could decline to attend as well.  They all indicated that they understood this with a simple “Yes” stated in English.  Mr. bin Attash spoke to the judge about his ongoing objections to his lead counsel Ms. Bormann which has been an ongoing issue for Mr. bin Attash.  I learned later during my conversation with Gen. Baker, Chief Defense Counsel, that his objection is based on a difference of opinion on trial strategy and not based on her gender.  The NGO’s learned that Ms. Bormann has asked the Judge on several occasions to step down as Mr. bin Attash’s counsel but the judge has denied the request.

The final preliminary matter that was discussed was brought up by the attorneys for Mr. al Hawsawi.  They informed the judge that all their computers lost power that morning and as a result they were unable to access all of their documents for the hearings.  The judge informed the parties that during the morning session he would attempt to address those matters that did not involve the al Hawasawi team, and would address those issues pertaining to Mr. al Hawasawi later when hopefully the power would be restored to their computers.

Motions Addressed

Once the preliminary matters were addressed, the court turned to the list of motions on the docket for the day.  There were several motions that were handled relatively quickly which are summarized as follows:

Preliminary Discussion on 502 – Issues of personal jurisdiction

Several of the parties stated that more discovery is necessary so they were not taking part in this motion today.

Mr. Al Baluchi’s team stated that they are awaiting some clarification from the classification review process of the documents they intend to use regarding their classification level.  Specifically, 5 of their 11 documents submitted have different classification markings than they are currently authorized to see.

This particular issue brings up one unique situation in this case that has 5 different defendants.  With this one specific motion, several of the Defense teams had differing litigation strategies from each other team.  This shows how differing strategies may impact each of the individual defendants differently.

Noises & Vibrations

The next motion to be addressed was brought by Mr. bin al Shibh’s team.  Their client has complained for some time that he has ongoing issues about various noises and vibrations bothering him in the detention facility.  His attorneys stated that when he complains about it to the guards he is disciplined, and that those disciplinary penalties have escalated under the current camp commander.  Mr. bin al Shibh’s counsel told the court that these issues have interfered with their attorney client relationship and that they are seeking relief from the judge who has issued a prior order directing any noises and vibrations directed at Mr. Bin Al Shibh by the government to cease.  The attorneys argued that these orders have been routinely ignored and that they suggest the judge consider abating the proceedings until there is a resolution.

Transport Van Pictures

Mr. al Baluchi’s team had a motion to use pictures that they had taken of the prisoner transportation vans admitted into evidence but they were marked FOUO (For Official Use Only) in the classification review process.  This means that their client is not permitted to see the photos due to the various security features on the vans.  This issue was resolved with an agreement that the defendant’s team could use the photos in their case but they would not be publicly displayed or displayed to the defendant.

Hearing on Motion to Suppress Statement & Issue Protective Order

The main issue for the day’s proceedings that was argued at some length concerned a written statement from the 5 detainees outlining their response to the charges against them.  The defendant Mr. al Hawsawi’s counsel claims that the document is overly prejudicial to their client and should be suppressed from evidence. This document was filed during a time when 2 out of the 5 defendants arguably had counsel in place and 3 were proceeding pro se.

The prosecution made several arguments in response to this motion.  First, the document has been publicly posted on the internet and on the Military Commission website since 2009.  Second, the statement was not coerced and was voluntarily submitted by the defendants in order to show their pride in the 9/11 attacks and to plead guilty and confess to their crimes.  In addition, the judge at the time ordered it released publicly and no one or counsel objected at the time of its public release.  The session ended that afternoon with counsel for Mr. aL Hawsawi stating that they planned to present their response at the next public court date.

Meeting with General Martins

After the hearings concluded on Monday, our group of NGO’s had the opportunity to meet with General Mark Martins, Chief Prosecutor for the Military Commissions.

General Martins spent over an hour talking with us and answering our questions.  After giving us some general background about the Military Commissions process, how it differs from a traditional Article 3 Court, and also from a traditional court martial process, we talked about some specific issues.  General Martins addressed some of the unique situations that arise by having the proceedings at Guantanamo Bay.

During the meeting we discussed that the base was established originally as a law of war camp and some of the facilities used have been re-purposed to accommodate the current proceedings but weren’t originally designed for that purpose.  For example, the defense issue of listening devices in the rooms where they meet with their clients was discussed.  We discussed the fact that these rooms were originally built and have been used for multiple purposes, including detainee interrogation and interviews where the use of video and audio monitoring is often employed.

Tuesday 8/22 – Closed Hearings

Today the hearings were closed to the NGO’s and the public since they were discussing classified information, but we had the opportunity to meet with Gen. Baker, Chief Defense Counsel.  Gen. Baker is the 7^th Chief Defense Counsel since the Military Commissions process began after 9/11.

General Baker started our meeting by giving us some background about his position.  He said that as of 2012 there were 12 GSA (General Service Administration) positions on the defense teams, and now there are 96 authorized positions although not all are currently filled.  He also outlined his general staffing guidelines for trying to have 23 personnel for each death penalty case, 19 for each non-death penalty case and 6 personnel dealing with sentencing issues.

Gen. Baker also indicated that his role was not to represent any defendants but to assist all of the various defense teams assigned to each particular detainee.  Typically, the defense teams have common interests and needs but occasionally there are different needs that may actually be in opposition to each other as was recently demonstrated by the testimony of one of the defendants (Mr. al Darbi) against another defendant (Mr. al Iraqi) neither of which are not involved with the KSM 9/11 case that we were there to monitor.

We also spent some time talking to General Baker about the anticipated timeline and the appeals process after the trials are actually done.  General Baker indicated that historically there is an 80% reversal rate on capital cases in Military Commission proceedings.  General Baker indicated several unique challenges that he said have posed significant challenges to this process; 1) The issue of torture has infected the process, 2) The issue of classified information and how to deal with it while also maintaining a fair process, and 3) The generally challenging logistics of having these proceedings at Guantanamo Bay, Cuba.

 

Wednesday 8/23 – No Hearings

There were no hearings today so we took the opportunity to visit a variety of places on the base including Radio GITMO, Camp X-Ray (the original site detainees were placed in open air facilities), and Marine Hill.  We also took the opportunity to get in a work out at the base gym (which is a fairly new, very nice facility) and especially enjoyed the showers which were several steps up from the showers in the latrine tents at Camp Justice.  We also went to Windmill beach and the NEX to buy more supplies.

 

 

 

 

 

 

 

Thursday 8/24 – Full Day of Hearings

On Thursday, the hearings began at 9:00 AM with 4 of the 5 detainees present.  Mr. al Hawsawi was not present.  After discussions with the guards by counsel for Mr. Hawsawi in the courtroom under oath from the witness stand, Mr. Ruiz addressed the court about a letter that was hand delivered to him from his client that morning.  Mr. Ruiz stated that his client declined to attend the hearing due to being subjected to jarring and rough transportation rides in the van that brought him to the courtroom.  Mr. Ruiz stated that based on this, the detainee did not voluntarily waive his right to be present, at which point the judge recessed the proceedings until Mr. al Hawsawi could be brought to the courtroom.

Defense Argument of Islamic Response Statement

The proceedings were reconvened at 10:59 with all 5 of the detainees present.  The judge initially addressed Mr. Hawsawi and told him that in the future there would only be two options regarding attending the hearings; 1) sign an unconditional waiver to attend for the session or 2) attend in person and do not waive their right to be present.

The Court then moved to have the Defense address the issue of the defendants’ previous statement that the prosecution argued on Monday should be admitted .  Mr. Ruiz argued several points to show why “The Islamic Response to the Government’s Nine Accusations” document should not be part of the court record.  Specifically Mr. Ruiz cited the following points; 1) It is undisputed that 2 of the 5 defendants were represented by counsel at the time and therefore the individual detainees represented by counsel could not submit documents to the court on their own; 2)  The status of the case at the time was still an active case even though it was continued; 3) The statements by the defendants were not voluntary; 4) The statement was not actually signed by the parties; 5) a curative instruction by the judge is not adequate to protect the defendant from the prejudicial value of the statement.

The prosecution responded that the statement was not a pleading seeking relief but was a confession and the judge was not required to stop the defendants from making such a statement.  After both parties presented their arguments to the court, the Judge indicated that he would take the issue under advisement and issue a decision at a later time.

Issue of Disabling Audio in Attorney Client Meeting Rooms

The next issue the court addressed concerned the disabling of all audio recording in the attorney client meeting rooms in the detention facility on Guantanamo Bay.  The Court had previously entered an order prohibiting all audio recording in the client meeting rooms, and that order was still in effect.  The defense counsel indicated that in another case there had been an incident of recording devices found in the client meeting rooms and they wanted the court to reiterate its order and to also allow the defense teams to verify that audio recording was not occurring.  The prosecution and defense agreed to work together to try and satisfy the defense teams’ concerns.  It was also noted that for security reasons the guards are allowed to monitor the meeting rooms via video but without any audio.  The court then recessed at 1:15 until after lunch.

Issue of Preservation of Black Sites as Evidence

During the break, the NGO’s went to the Commissary for lunch. The court reconvened at 2:15. After a few minutes addressing the issue of listening devices in the client meeting rooms, the court moved to address the issue of preservation of the black sites as evidence.  The issue was raised by the Defense teams that the Court permitted the destruction of the Black Sites which the Defense teams wanted to visit and document in order to possibly submit mitigation evidence but which had been “decommissioned,” or destroyed as the defense states.

Mr. Nevin, Counsel for KSM and Mr. Connell, counsel for Mr. al Baluchi, took turns asking the judge questions in a voir dire process about his role in the original order to preserve the black sites where the defendants were held and then the process where the judge entered another order allowing the sites to be decommissioned without the defense counsel receiving a copy of the order in a timely fashion.  After the defense counsel asked the judge questions about what happened during this process and what the judge knew of the sequence of events, the defense rested and the court shifted to a different topic with the substance of the black site issue scheduled to be argued in Friday’s session.

Prosecution’s Proposed Scheduling Order

The next issue to be addressed was a discussion of the prosecution’s proposed scheduling order for moving the proceedings forward.  The government said that new resources (not a new courtroom) should be in place by Nov. 2018 , enabling two simultaneous trials/hearings to take place sharing the current courtroom.  Specifically, they proposed a 4/3-day rotation with one trial having 4 days on and 3 off and the other trial having 4 off and 3 on.  The judge said that the 9/11 case due to its size would not operate concurrently with another one.  Also, they could only do 1 death penalty case and one non-death penalty case at the same time and not 2 death penalty cases.

Until the improvements are completed in 2018, the prosecution recommended that the judges coordinate the schedules so they could maximize the use of the courtroom.  Also, the Government confirmed that they are not contemplating adding a new courtroom due to the “lack of political will” of the Pentagon to spend the money required.  There was a lengthy discussion about how feasible & logistically realistic it would be to build another courtroom.  The judge postponed this conversation until October when they are scheduled to reconvene for the next round of scheduled hearings.  One other option that was presented was to try to set up a SCIF (Secure facility) in the Washington DC area to do the 505 H and 806 hearings (Classified sessions) so they don’t have to go to GITMO for those.

Threat Assessment Documents

The next topic for today was on a discovery request from Mr. al Hawsawi’s team.   They argued that some documents related to a threat assessment of al Hawsawi were not produced by the Prosecution that the defense team wanted.  The prosecution is exerting a Deliberative Process Privilege which the judge will consider and rule on later after arguments.

End of the day

At the end of the day, the judge laid out several motions to be considered on Friday with a morning open session followed by a closed classified session.  At about 4:30 the judge allowed the defendants to pray in the courtroom before they were transported back to their detention cells.

Friday 8/25 – Morning Hearings

Court convened at 9:00 AM with none of the defendants present.  After confirming with the guards and defense counsel that all of the defendants had voluntarily waived their presence in the courtroom by having the guards testify in court, and a few other preliminary matters, the court turned to several issues: (a) the defense motion to disqualify the judge and the prosecution; (b) abate the proceedings due to the destruction of the black sites were the defendants were held; (c) and the inability to adequately obtain exculpatory evidence by the defense.

Argument to recuse Judge, Prosecution & Abate Proceedings due to Destruction of Black Sites

Mr. Niven and Mr. Connell lawyers for Khalid Sheik Mohammed and Ammar al Baluchi respectively,  argued that the exculpatory evidence at the black sites was destroyed without any notice to the defense teams, the substitute videos are not sufficient substitutions, and since this is a death penalty case, the only solution is to abate the proceedings and remove the judge and prosecution team.  The defense argues that a video recording that the court had made of the site is not adequate since it does not capture things like temperature, vibrations, lines of sight, sounds, humidity, and experts can’t see it in person.  Since this is a crucial part of the mitigation of the proposed death sentence, there is no other remedy but to abate the proceedings.

Mr. Niven & Mr. Connell argued that the government’s bad faith has been persuasive in this case and then laid out a time line of events, as follows:

1) Aug. 2012 – Defendants initially asked the court to order preservation of the black sites so they could inspect them and obtain mitigation evidense;

2) Dec. 2013 – The black sites are ordered preserved by the judge;

3) June 2014 – The judge after ex parte communication with the prosecution issues an order saying it is OK to “decommission” (aka destroy) the black sites (Order 52EE) but the redacted order does not get distributed to the defense attorneys at the time for unknown reasons

4) July 2014 – The Prosecution tells the judge that they will send the defense counsel a redacted order regarding destruction of the black sites

5) January 2015 – Defense counsel notice the order in the order book and contact the court to determine what it is since they never received a copy of it.

5) February 2016 – The defense counsel first receives the redacted order 52 EE issued in 2013 permitting the government to decommission the black sites

Mr. Swann, counsel for the Prosecution responds to the defendants’ motion by arguing that there is no basis for disqualification of the judge or the prosecution.  Mr. Swann argues that if there was an improper order by the judge that it is grounds for appeal not recusal.  In addition, the Classified Information Protection Act (CIPA) is the core issue here.  Specifically, the preservation of an alternative as was done in this case with the video has been consistently approved.  In addition the precedents that the defense relies on focus on evidence that was destroyed without a court order unlike this case.

Press Conferences and Final Dinner

After the court sessions were over, our group of NGO’s headed to the trailer next to the media room to watch the press conferences from the prosecution, the defense counsel and also the victims families.  After that, we had our final dinner together as a group at the Bay View restaurant.

 

 

 

 

 

 

 

 

 

 

Saturday 8/26 – Travel back to Joint Base Andrews

Saturday was our travel day back to Joint Base Andrews and we had to turn in our security badges, clean out our tents and make our way to the area to check our bags for the trip back.  After loading onto the ferry for the trip across the bay we boarded the plane at 10:00 and after 3 ½ hours we were back in the United States.

 

Charles R. Dunlap, J.D.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

I have been involved with the Indiana University McKinney School of Law’s Military Commission Observation Project since 2014.  During my time with the project I have observed hearings at Ft. Meade, Maryland and also at Guantanamo Bay, Cuba in both the Khalid Sheikh Mohammed – 9/11 proceedings as well as the Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri – USS Cole case.  I look forward to returning to Guantanamo Bay after 3 years.

In New York City

Coincidentally, I am currently in New York City attending the American Bar Association meetings and plan to visit the National 9/11 Memorial site tomorrow.

Guantanamo Hearings Resume After Judge Ordered Halt in Proceedings

An artists view of United States Army Chief Circuit Judge Col. James L. Pohl (AP Photo/HO/Cpl. Annette Kyriakides)

As I prepare to attend the hearings and review various materials in order to bring myself fully up to date on the current issues in this case, one issue has garnered a lot of attention in the press.  According to the Miami Herald, last month the judge in the case, Army Col. James L. Pohl, suspended all hearings due to a conflict with the base commander regarding sequestration of judges and judicial staff during transit to GTMO, specifically on the boat transportation across the bay at the base in Cuba.  The article stated that the judge was concerned when a separate boat for the judicial staff was recently discontinued by the base commander.  This change would have required the judge and his staff to be in close proximity to members of the prosecution, defense, media, family members and NGO’s during the trip across the bay from the airport to the portion of the base that houses the military commission facilities at Camp Justice.  As a result, according to the article, the judge felt that this could negatively affect the integrity of the proceedings and the independence of the trial judiciary or raise that perception.  Earlier this month an arrangement was reached to once again provide separate boat transportation to the judicial staff once they arrive at GITMO and the hearings are set to resume the week of the 19^th.  This is another example of the unique circumstances and situations that are involved with the location of the Military Commissions.

Charles R. Dunlap, J.D.

Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

Today we posted the newest version of our Know Before You Go To Guantanamo Bay Guide. It contains 90 pages of information to help you prepare for a trip to this remote Cuban military outpost, including information about the U.S. war crimes trials being held there.

Want to learn intricacies on gaining permission to travel to Guantanamo? What about information about Guantanamo Bay accommodations, restaurants, recreation, sites?

The Guide contains up-to-date information, including about the U.S. Naval Base’s newest restaurant, called Tropical Cabana, that is “Inspired by Cuba, Jamaica & the Philippines in a Relaxed Island Atmosphere”.

It also now contains information / photos of artwork done by one of the courtroom guards – animal figures made of glass collected from Glass Beach.

Safe travels!

For a copy of the Know Before You Go to Guantanamo Bay Guide click this link. Or access the Guide below:

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For two weeks this month, Guantanamo Bay war crimes hearings have been held in the case against Mr. Abd al Rahim al Nashiri, who is alleged to have masterminded the 2000 bombing of the U.S.S. Cole off the coast of Yemen, killing 17 U.S. sailors and wounding dozens more.

Representatives of Indiana University McKinney School of Law have monitored these hearings, live in the Guantanamo Bay courtroom, and remotely by CCTV at a secure facility in Ft. Meade, Maryland.

In addition to monitoring military commissions, Indiana affiliates also monitor Guantanamo Bay Periodic Review Board hearings (PRBs), that occur live at Guantanamo Bay but are broadcast live by CCTV into a secure room at the Pentagon. The PRBs are separate and distinct from the military commissions.

All Indiana monitors carry out the 5-part mission of Indiana McKinney’s Military Commission Observation Project, to: (a) attend; (c) observer; (c) analyze; (d) critique; and (e) report on the substance and the form of the legal proceedings.

All Indiana monitors contribute to research and writing of the Guantanamo Bay Fair Trial Manual, which is an independent and objective guide on rights and interests of all Guantanamo Bay stakeholders, and not just the rights and interests of the defendants. The Manual examines rights and interests of the prosecution, the victims and victims’ families, the media, the public, detainees who are not charged, witnesses, the military detention center guards, and others.

Indiana monitors also contribute to the Know Before You Go to Guantanamo Bay Guide guide, which offers travelers to Guantanamo insights into what to expect there. Also, Indiana monitors contribute to the blog, resource database, and other components of our Gitmo Observer website – www.GitmoObserver.com (and our twitter feed — @GitmoObserver).

Indiana monitors who travel to Ft. Meade, the Pentagon and Guantanamo Bay carry out their responsibilities independently and objectively.

Indiana Observers at Guantanamo

On Saturday, 4 March 2017, Judge Aline Fagundes, who is a Master of Laws (LL.M.) student at Indiana, flew on a U.S. military flight from Andrews Air Force Base to Guantanamo Bay, Cuba to monitor a week of al Nashiri hearings. At Guantanamo Bay, she witnessed the proceedings while seated in Guantanamo’s courtroom, in a gallery behind a double-paned glass wall that separated her and other observers from the lawyers, the judge, and the defendant. This was the second trip to Guantanamo Bay for Judge Fagundes, who traveled there in 2016 to monitor hearings in the 9/11 case against the 5 alleged masterminds of the attacks on the World Trade Center and Pentagon.

 

A week after she arrived, another military flight from Andrews touched down at Guantanamo, carrying Mr. Tex Boonjue, a 3^rd year Indiana J.D. student. Mr. Boonjue and Judge Fagundes met briefly at the Guantanamo Air Terminal, where the baton was passed for the second week this month of on-site monitoring.  This interchange at Guantanamo marked the first time since 2003 – when Indiana McKinney affiliates fist became involved with Guantanamo – that Indiana has had 2 representatives on the ground at Guantanamo at the same time. On of the dozens of trips, Indiana has only had one representative on the island at a time.

The plane that carried Mr. Boonjue to Guantanamo picked up Judge Fagundes and brought her back to Andrews. Judge Fagundes spent the weekend in the DC area, then traveled to Ft. Meade, Maryland to witness, via CCTV, continued hearings in the al Nashiri case.

 

Both Mr. Boonjue and Judge Fagundes have published multiple blog entries on www.GitmoObserver.com. You can read about some of Judge Fagundes’ experiences here and about some of Mr. Boonjue’s experiences here.

Indiana Observers at Ft. Meade

Early Monday morning, 13 March 2017, Judge Fagundes arrived at the Ft. Meade Army Base in Maryland, where the Guantanamo Bay hearings are broadcast via satellite to a secure viewing room.

Upon her pre-dawn arrival, she stopped at the Ft. Meade Visitors Center, where she was able to collect a badge that granted her access to the base. She traveled about a mile onto the base to the McGill Training Center, where the Office of Military Commissions has organized a live feed from the Guantanamo Bay courtroom.

At Ft. Meade’s McGill facility, Judge Fagundes saw the Guantanamo Bay courtroom from a different perspective. While at Guantanamo, she witnessed the proceedings from the gallery, which is at the back of the courtroom, offering a view of the entire courtroom at all times. She was able to see the judge, the prosecution, the defense counsel, the defendant, the security officers in military uniform, and court staff. She could also see occupants of the viewing gallery, including other observers, media, Guantanamo Base residents who are able to sit in when seats are available, and victims and victims’ families (VFMs) (except when VFMs choose to close a curtain that separates the VFM section of the gallery from others in the gallery).

At Ft. Meade, she could only see what was broadcast from Cuba, through a courtroom camera that would point at the person currently speaking. When the judge spoke, a camera pointed at him and that was broadcast live. When the prosecutor spoke, a different camera pointed at him, and that was broadcast live. Cameras pointed at the defense counsel, the defendant, and the witnesses would come alive and broadcast when those people spoke.

When viewing proceedings at Ft. Meade, it is impossible get a clear sense of the scope of the proceedings, or the courtroom / gallery dynamics, as one can do when in they are observing live at Guantanamo.

At Ft. Meade, observers cannot witness any visual or oral reactions by VFMs, the defendant, or anyone else, unless a camera pointing towards them is activated. These cameras are only activated when an actual participant in the courtroom is speaking officially. The cameras would not necessarily point towards a defendant who was speaking out of turn, a VFM who might be reacting, or others on site who could clearly be heard / seen by any observer physically in the courtroom gallery.

At Ft. Meade, Judge Fagundes was met by Professor George Edwards, who is the founding faculty director of Indiana’s Guantanamo project.

 

Judge Fagundes and Professor Edwards viewed the hearings at Ft. Meade, while Mr. Boonjue viewed the hearings while in gallery in the back of the Guantanamo Bay Courtroom.

 Upcoming Indiana participants at Guantanamo Bay and Ft. Meade

On Saturday, 18 March, Mr. Brent Pierce, an Indiana McKinney J.D. graduate, is scheduled to travel to Guantanamo Bay. He is likely to be on the ground there for a few minutes with Mr. Boonjue, who is due to return to Andrews on the plane that carries Mr. Pierce from Andrews.

 

Mr. Pierce is scheduled to monitor the case against the five alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon.  That case has five defendants, including Khalid Shaik Mohammad. These five defendants, like Mr. al Nashiri in the U.S.S. Cole case, face the death penalty.

On Monday the 20^th, when Mr. Pierce is in the Guantanamo gallery for the 9/11 hearings, Professor Edwards is scheduled to be back at Ft. Meade with another Indiana McKinney LL.M. student, who will join in monitoring the 9/11 case via CCTV.

You can read Mr. Pierce’s initial blog post here.

Substance of the al Nashiri Hearings

The testimony on the Monday morning that Professor Edwards and Judge Fagundes were at Ft. Meade (and Mr. Boonjue was in the Guantanamo courtroom gallery) focused on pre-admitting into evidence items that the FBI recovered from the U.S.S. Cole in the days after the ship was attacked. These items included photographs of the ship, harbor where the ship was attacked, the road leading to the harbor, and the beach front where debris from the attack was washed ashore. Among the debris on the shore depicted in the photographic evidence was an uninflated Cole lifeboat and a Cole baseball cap. Also

 

admitted into evidence were fiberglass fragments that are alleged to be part of the suicide boat that attacked the Cole, debris found on Cole’s deck following the bombing, photographs of the gaping hole in the side of the Cole where the attack boat hit, and photographs of devastation inside the attacked ship.

At Ft. Meade and in the Guantanamo Gallery, observers could see some of the exhibits, including those that were projected onto the screen by a device like an overhead projector.  When exhibits were presented, at Guantanamo, observers could see and hear reactions / non-reactions by the defendant, VFMs, media, other observers, and others in the courtroom. At Ft. Meade, observers could see and hear only what came through the television monitor / speakers.

Substance of the upcoming 9/11 hearings

It is unclear what will be on the agenda for the 9/11 hearings. The military judge in that case has released a docketing order, and participants know the list of pre-trial motions scheduled. But experience has demonstrated that not all motions on the order are necessarily heard during a hearing week, and at times matters not listed on the order are raised.

Periodic Review Hearings (PRB)

On Tuesday, 21 March 2017, Professor Edwards, Judge Fagundes, and another LL.M. student are scheduled to travel to the Pentagon to monitor the PRB hearing of Saifullah Paracha, from Pakistan, who at 69 years of age is the oldest detainee currently being held at Guantanamo Bay. He is alleged to have associated with members of al Qaida.

PRBs and military commissions differ.

 

Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.

PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.

 

9/11 Hearings for the last week of March 2017; al Darbi hearings for the first week of April.

 

During the final week of March, Professor Edwards is scheduled to travel to Guantanamo Bay for the 2^nd week of hearings in the 9/11 case. Mr. Brent Pierce and Professor Edwards will likely meet briefly at the Guantanamo Bay airport, to pass the baton for the final week of March hearings.

Currently, hearings are scheduled at Guantanamo Bay for the first week of April in the case of Mr. al Darbi, who is alleged to have conspired with Mr. al Nashiri in planning a failed attack on the U.S.S. Sullivan the year before the U.S.S. Cole bombing. Professor Edwards is scheduled to return to Guantanamo Bay for this hearings. Rumor has it that the April al Darbi hearings will be cancelled. Another round of al Darbi hearings is scheduled for May 2017.

Military commission hearings in the case against Mr. Hadi al Iraqi (a/k/a/ Nashwan al Tamir), an alleged high level member of al Qaida Iraq and liaison with the Taliban, scheduled for earlier in March 2017, were cancelled. The Indiana McKinney monitor who was scheduled to travel to Guantanamo Bay for the Hadi hearings — Ms. Johanna Leblanc — will be scheduled for a subsequent monitoring mission. Ms. Leblanc’s initial blog post on her cancelled Hadi al iraqi hearing mission can be found on www.GitmoObserver.com  here.

 

Conclusion

Though each Indiana monitor has his / her personal perspective and opinions, Indiana monitors act independently and objectively in researching and drafting our Guantanamo Bay Fair Trial Manual and other materials that examine rights and interests of Guantanamo Bay stakeholders. The materials that Indiana has prepared are being used by many who have an interest in what happens (or what does not happen) at Guantanamo Bay. Though persons traveling to Guantanamo may have a particular interest in our Know Before You Go to Guantanamo Bay Guide, there is strong interest in our substantive publications as well.

Indiana monitors contribute to the transparency that the Pentagon has stated that it seeks with the military commissions. Indiana monitors also benefit, whether they travel to Ft. Meade, to Guantanamo Bay, or both.

If you are an Indiana McKinney affiliate – student, faculty, staff or graduate – please check our law school web page here for information on how you might participation in our Guantanamo project.

Anyone interested in our work can check our blog / website / resource database at www.GitmoObserver.com.

George Edwards

Founding Faculty Member, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

I am at Andrews Air Force Base now waiting to board a military flight to take me to Guantanamo Bay, Cuba to monitor U.S. Military Commissions in the case against al Nashiri, who is alleged to have masterminded the 2000 suicide bombing of the U.S.S. Cole off the coast of Yemen killing 17 U.S. sailors and wounding dozens more.

For the second time, I was nominated to represent the MCOP – the Military Commission Observation Project of the Indiana University McKinney School of Law’s Program in International Human Rights Law.

My first trip to Guantanamo Bay was in October of 2016 and my experience can be found in this www.GitmoObserver.com blog post, clicking here.  There was also a 4-page article by Larissa Roso published in the Brazilian newspaper Zero Hora (see photo in this blog).

The defendants

As mentioned, this time I will attend a pre-trial hearing in the case against al Nashiri, who faces the death penalty for his alleged participation in the suicide attack against the USS Cole .

From public sources I have gathered the following information about al Nashiri:

Abd al-Rahim al-Nashiri. He was arrested in Dubai in 2002, was held for 4 years in CIA black sites and was taken to Guantanamo Bay Detention Camp. He was first charged at Guantanamo in 2008. The charges were dropped in February 2009 and reinstated in 2011, and now, six years later, the proceeding remains at the pre-trial stage.

On my first visit, I attended the pre-trial hearings in the case against Khalid Shaik Mohammad and 4 other allged masterminds of the 9/11 attack on the World Trade Center and the Pentagon. It will be interesting to compare the 9/11 hearings to what I expect to witness at the al Nashiri hearings.

Why go to Guantanamo again?

I am a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, and my second trip to Guantanamo Bay is part of my in-field research about transparency under the Military Commissions. My research is being supervised by , Professor George Edwards, who is Founding Director of  Indiana’s Military  Commission Observation Project.

I remember, as a first-islander (this is how people in Guantanamo Bay call those who are on the island for the first time), I felt like not even blinking my eyes, afraid of missing any detail from which I could learn something.

This time, of course, it will not be different. My eyes will be wide open. My initial focus was to fulfill goals of our MCOP project – to attend, observe, analyze, critique and report on the Military Commissions. I did that on my first visit, and I will do that on this visit as well.

But this time  my attention will be focused specifically on transparency.

The whole process of my involvement, since I was nominated to be an observer, represents a rich source for research on Military Commission transparency for NGOs. The several steps to comply with the requirements presented by the Pentagon, the limited information NGOs can access, the location of the hearings, the restrictions and overwhelming rules while in the island, the fact that rules seem constantly to change for NGOs (with some rules being different now than they were when I went to Guantanamo in October), the limited areas at Guantanamo where NGOs can circulate, visit or take pictures – those are just a few examples of things that I am thinking about in the context of transparency. Of course, the cases before the Military Commissions are related to national security, and deserve special care. This research will try to understand what international and U.S. domestic law require regarding transparency of the U.S. Military Commissions for NGOs, recognizing that a balance must take into account national security as well as NGO exposure and access to information. Do the Military Commissions comply with international and U.S. law regarding transparency when it comes to NGO observers?

At Andrews Air Force Base

I am now at the Joint Base Andrews, and the sun is about to rise on this chilly Sunday. Our chartered flight – a Delta Airlines – is scheduled to depart at 8am. The NGOs were scheduled to arrive arrive at Andrews at 5 a.m., 3 hours in advance, to check-in for the flight.

At this time there are 10 NGOs representatives from different organizations scheduled to travel with us. On my first trip, we had 12 NGOs observers. Each authorized organization can indicate and send only one representative at the time, even if there are places available. So, if we in fact only have 10, then there are 3 or 4 empty seats that could have been filled by NGO representatives. I know that there are many observers from Indiana and other organizations available to fill those seats, and I wonder why those spots are empty.

The flight time is about 3 hours 15 minutes, and we are expected to arrive at Guantanamo Bay around lunch time.

I am looking forward to gathering as much information as possible on this trip, and I hope to learn from as many participants as possible, including other NGOs observers, media, the defense team, the prosecution, escorts, etc.

Soon I will be sharing more information here on this blog. Also I will be tweeting @alinedoral.

Stay tuned.

Aline Fagundes, Master of Laws (LL.M.) student

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

Program in International Human Rights Law

Indiana University McKinney School of Law 

The Pentagon approved my nomination to travel to Guantanamo Bay, Cuba to monitor the case against Hadi al Iraqi, and alleged high level member of al Qaeda who was purportedly a liaison with the Taliban. As a representative of the Indiana University McKinney School of Law’s Military Commission Observation Project, my job was to attend, observe, analyze, critique and report on Hadi al Iraqi’s hearings. My hearing dates were scheduled for 26 February to 3 March 2017.

I recently received an e-mail from Professor George Edwards (founder of IU McKinney’s Guantanamo Project) indicating that the Pentagon had cancelled Hadi al Iraqi’s hearings for that week. I felt somewhat disappointed because I was really looking forward to attending the hearing and further contributing to IU McKinney’s Guantanamo Bay work.

Prior to the cancellation, I could not stop talking about it with friends and former classmates. I even called my younger sister and she had no idea why I was interested in attending such hearing. I talked her ears off about who the defendants were and the crimes they had been accused of. I tried to share with her about international crimes, criminal justice, the rule of law, and the importance of transparency in proceedings such as this. I understand that those selected to monitor such proceedings play a very important role in human rights for all stakeholders in these military commission proceedings.

I remain hopeful that I will be able to monitor hearings of other defendants in March, either at Ft. Meade or Guantanamo Bay.

Johanna Leblanc, J.D., Indiana University McKinney School of Law

Observer, Guantanamo Bay, Cuba, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

 

 

 

In 2016, I received my doctor of jurisprudence (J.D.) from Indiana University McKinney School of Law, where I studied international human rights law and was active in many human rights and civil rights projects, in the U.S. and overseas.

Now, I am part of the law school’s Military Commission Observation Project (MCOP), which was founded by Professor George Edwards. The MCOP, among other things, sends students, faculty, staff and graduates to Guantanamo Bay, Cuba to serve as observers or monitors for military commissions that were created to try alleged perpetrators of war crimes.

As a monitor, it is my job to (a) attend; (b) observe; (c) analyze; (d) critique; and (e) report on military commission war crimes hearings at Guantanamo Bay.

I have many reasons for wanting to travel to Guantanamo Bay for live hearings, or to travel to Ft. Meade, Maryland where the hearings are simultaneously broadcast via CCTV from Guantanamo to a secure facility on the Ft. Meade army base. I will talk more about those reasons in my next blog post.

For now, I am focusing on the hearings I am scheduled to attend on 26 February to 3 March 2 017 – against a man named Hadi al Iraqi (or Nashwan al Tamir).

Hadi al Iraqi is a 51- or 52-year-old Iraqi citizen. He was taken into custody in late 2006, spent some time in Central Intelligence Agency custody, and was transferred to Guantanamo in April of 2007. He is considered a high-valued detainees (HVD), and is accused of, among other things, cross-border attacks against US and coalition troops from 2002 to 2004.

More on my background

I was born in Port-au-Prince, Haiti. I moved to the United States at the age of ten (10). In addition to my J.D. from IU McKinney, I also hold a master’s degree in public administration from Florida A&M University (FAMU) and a bachelor’s degree in political science from Bethune Cookman University.

During law school, I was a part of the Program in International Human Rights Law (PIHRL) which was founded by Professor George Edwards.  Through this program I was able to travel to South East Asia, Southern Africa, and Western Africa where I worked on access to legal justice, child marriage/women’s rights, and electoral reforms. With my exposure through our world renowned human rights program at IU-McKinney, I further developed an interest in international laws and politics. In particular, I am interested in how international law and politics help shape domestic and international policies regarding immigration, trade, and other aspects of relationships between countries.

I look forward to contributing to the work of the MCOP, specifically the Guantanamo Bay Fair Trial Manual that the project has been working on.

Johanna Leblanc, J.D., Indiana University McKinney School of Law

Observer, Guantanamo Bay, Cuba, Military Commission Observation Project

Program in International Human Rights Law

Indiana University McKinney School of Law

I was nominated to travel to the Pentagon to monitor a Guantanamo Bay Periodic Review Board hearing for a detainee who was asking the U.S. to release him from Guantanamo.

The PRB – Periodic Review Board – is a discretionary administrative procedure held in Guantanamo Bay and transmitted via a secure link to the Pentagon. PRBs analyze whether the detainee will remain in Guantanamo, will be transferred to a third country to resettlement, or will be repatriated to its original country. PRBs do not address the legality of any individual’s detention, but attempt to assess whether the detainee is a threat to the national security of the United States.

I was nominated to monitor this PRB by the Periodic Review Board Project of Indiana University McKinney School of Law’s Program in International Human Rights Law. This is similar to the way I was nominated to monitor military commission hearings at Guantanamo Bay, Cuba, where I traveled last year and posted about on this blog here, and on twitter.

I understand that the Pentagon is interested in Guantanamo Bay military commission hearings and PRBs being transparent, so they permit observers / monitors to be present.

I flew from Indianapolis to Washington, D.C. on 8 February 2017, in anticipation of an early trip to the Pentagon the next day for the PRB. I stayed at a hotel near the Pentagon.

On the morning of 9 February  2017, at about 7:30, a hotel van dropped me off at the Pentagon, where I went to the Visitor Center. There I walked through a maze as I entered the Pentagon, and went through a security system that seemed more intricate than at an airport. After, I entered the Visitor Center waiting room, where I saw representatives from other non-governmental organizations and members of the press who were also waiting to be escorted to the PRB.

When the escorts came to take everyone to the PRB room, I learned that my name was not on the list. I was not among the cleared NGOs! It was noted that they apparently did not receive my form within the deadline. I immediately called the McKinney director of the program who also immediately forwarded to me e-mail copies of messages to the Pentagon requesting my clearance. We had about 10 minutes to try to solve the issue. Unfortunately, it was not resolved and I could not benefit from the Pentagon’s last-minute clearance procedure even though I could show my completed, signed, required PRB Ground Rules form. I was not allowed to attend the PRB that day.

So, I was left behind.

 

It was very disappointing. The sole purpose of my flight to DC – for fewer than 24 hours – was to attend and monitor the PRB on behalf of our law school’s project. I flew from Indianapolis to DC one evening, was at the Pentagon early the next morning, and was due to fly back to Indianapolis in the afternoon of the same day.

Well, what is done, is done.

And, my trip was not wasted!

Two weeks before, when I knew I was going to be in the Pentagon, I requested a tour. The tours can be requested at this link at least 14 days in advance and not more than 90 days away from of the visit.

The guided Pentagon visit is very basic but interesting. We passed through areas that did not look like what I imagined the Pentagon would look like at all. For instance, we started in a theater with a brief explanation of the rules. No photographs were allowed during the tour, of course. After that, we crossed an area similar a mall, with all sorts of storefronts like for candy, clothes, flowers, ceramics, shoe repair, leather accessories, candles, a bank, Starbucks and fast food such as McDonald’s, Subway, and Burger King. Everything to serve the population of 26,000 people. The visit also included the Pentagon Memorial Quilts. After the 9-11 attack in 2001, people from all over the country sent quilts to pay tribute to the victims.

Why quilts? Jeannie Ammerman led the September 11 Quilt Memorial Project, an idea given by Drunell Levinson, an eyewitness who felt a strong desire to do something helpful but was uncertain how to proceed. As a fabric artist and quilter, she was not qualified to help with rescue and recovery efforts, and blood donation centers were already crowded with volunteers. Thus, she came up with the idea of gathering quilts, as a symbol of a communal activity.

 

After my Pentagon tour and my lunch, the hotel shuttle too me back to the hotel to pick up my luggage and then to the airport for my return flight to Indianapolis. The shuttle driver shared with me his story of life. Living in the U.S. for ten years already, originally from Ethiopia, after two degrees (one from Nairobi), he is pursuing a Ph.D. in Business and Economics, with a United Nations Scholarship, as a political exile. Nice story to end a day of frustration.

What’s next?

Another PRB is scheduled for a different detainee on 28 February 2017. When asked, I declined a nomination to attend since I have a conflict and cannot attend. I hope to be nominated for a future PRB, as I would very much like to gain the experience of this different type of Guantanamo Bay proceeding. PRBs involve detainees who are not charged with crimes, and who are asking to be released. The PRB non-criminal proceedings are different from U.S. Military Commission proceedings, which are criminal proceedings, and the question is whether the detainee is guilty of a crime. In PRBs, there is no question about criminality, just about whether the person in question is a national security threat.

Aside from PRBs, I am now scheduled to return to Guantanamo Bay, Cuba to monitor regular U.S. Military Commission hearings in the criminal case against al Nashiri from 4 to 11 March 2017, and am scheduled to travel to Ft. Meade, Maryland on Monday, 13 March 2017 for hearings in that same case – simultaneously broadcast from the same courtroom I will have monitored from live the preceding week. Mr. al Nashiri is the alleged mastermind of the 2000 suicide bomb attack on the U.S.S. Cole off the coast of Yemen that killed and wounded dozens of U.S. sailors.

 

Aline Fagundes (LL.M. Candidate, ’17)

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

Program in International Human Rights Law

Indiana University McKinney School of Law