USS Cole Case

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

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

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

USS Cole

Damage to the USS Cole.  Picture from CNN.

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

Current Case Status

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

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

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

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

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

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

 

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

Preliminary Thoughts                       

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

 

Jessica Ayer (J.D. Candidate, ’19)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Guantanamo Bay Hearing for USS Cole Bombing Suspect

Courtroom sketch of al Nashiri by artist Janet Hamlin. Today in court he was wearing a similar white jumpsuit.

Guantanamo Bay courtroom sketch of al Nashiri by artist Janet Hamlin. (copyright Janet Hamlin)

A U.S. Military Commission at Guantanamo Bay, Cuba has scheduled pre-trial hearings next week in the case against Abd al-Rahim al-Nashiri, who allegedly masterminded the 2000 USS Cole bombing that killed 17 U.S. sailors off the coast of Yemen.

At pre-trial hearings defense and prosecution lawyers routinely debate evidentiary, jurisdictional, logistical and other issues, and deal with matters such as what evidence will be admissible at trial, which witnesses will be called and when, whether the court possesses jurisdiction to hear the case, and what date to set for the trial to commence.

What is typical (or atypical) about the al Nashiri pre-trial hearings, about his case itself, or about his plight before other tribunals that have or could exercise jurisdiction? Is his case more complex than others?

Multiple courts have either resolved issues related to charges against al Nashiri or have sought to resolve such issue, or to exercise such jurisdiction. These proceedings appear to have extended beyond routine evidentiary, jurisdictional or logistical issues.

Though the military commission judge identified issues to be debated next week (see his 12 August 2016 docketing order below), it is unclear what will be heard. Indeed it is unclear whether the hearings will go forward. al Nashiri hearings were stayed for almost a year, and when they were set to resume in April, they were abruptly postponed until now. Though many dozens of us are gathered in Washington, DC for a post-Labor Day flight from Andrews Air Force Base to Guantanamo, the hearings can be cancelled at any moment, even after we touch down at Guantanamo Tuesday afternoon.

The stakes are high, as proceedings in different courts could result in one, more or all the charges against al Nashiri being permanently dismissed.

The USS Cole after it was attacked by suicide bombers in October 2000 in Yemen. (Photo courtesy of United States Marine Corps)

The USS Cole after it was attacked by suicide bombers in October 2000 in Yemen. (Photo courtesy of United States Marine Corps)

al-Nashiri is charged with multiple war crimes, including perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, attacking civilians, and attacking civilian objects. He faces the death penalty.

Courts’ jurisdiction

Several courts have exercised or sought to exercise jurisdiction over al Nashiri, that is, the courts have or have sought to resolve matters related to his detention or his alleged crimes.

First is the military commission itself at Guantanamo Bay. al Nashiri was picked up in 2002, held in secret CIA camps for about 4 years, taken to Guantanamo Bay in 2006, and arraigned in 2001 in a military commission. In that commission, he is charged with war crimes associated with the U.S.S. Cole and other ships. This commission is the primary court exercising jurisdiction over al Nashiri.

The D.C. Circuit Court of Appeals has also exercised jurisdiction, ruling on 30 August 2016 that it would not halt the Guantanamo commission against him. The defense had asked the appeals court stop the commission because the commission was not lawfully able to exercise jurisdiction. The appeals court chose not to decide the merits of the matter unless al Nashiri is convicted, at which time the appeals court would decide whether the commission had conducted a trial without jurisdiction.

The Court of Military Commissions Review (CMCR) issued a ruling in his Military Commission case in June 2016, and one in July.

The U.S. District Court for the Southern District of New York also has had a stake, as al Nashiri was indicted in that district but the case has not moved forward because Congress prohibited moving detainees to the U.S. for trial.

The European Court of Human Rights ruled that the government of Poland breached international human rights law when it permitted the U.S. to detain al Nashiri on Polish soil, where he was tortured. The court ordered Poland to pay al Nashiri over $250,000.

At the pre-trial hearings this week, the issue of jurisdiction will certainly arise.

al Nashiri

al Nashiri

Pre-trial Issues in his case

al Nashiri’s pre-trial hearings have touched on many issues.

Front and center recently have been jurisdictional issues, such as those discussed above handled by the DC Circuit and the CMCR, and also raised in the commissions.

Pre-trial issues have related to his treatment while in CIA black sites beginning in 2002 for 4 years, where the Senate Torture Report and other sources (including al Nashiri himself) have identified the following practices against al Nashiri – waterboarding (admitted by the government), mock executions, stress positions, and threats of sexual violence against his mother. Should a person be tried on criminal charges after being subjected to this treatment? Can any statements made by al Nashiri after such treatment be allowed as evidence in the trial against him?

Other pre-trial issues in his case or that may be raised include:

  • whether the U.S. can use as evidence the testimony of a man the U.S. killed (alleged co-conspirator Fahd al-Quso);
  • whether and to what extent the U.S. Constitution applies to al Nashiri’s military commission;
  • whether the right to a speedy trial was violated (over 13 years since al Nashiri was taken into custody and over 9 years since arriving at Guantanamo Bay — with the trial itself not commencing as of 2016 and no trial date set);
  • whether his right to humane treatment was violated (even regarding his Guantanamo housing situation – during these proceedings);
  • his right to have access to classified and other information that might be used against him at trial;
  • whether high-ranking military members engaged in undue influence;
  • the timely acquisition of defense lawyers’ security clearances; and
  • al Nashiri’s physical and mental health.

Much remains to be resolved before any actual trial is held.

At Camp X-Ray, Guantanamo Bay

At Camp X-Ray, Guantanamo Bay — George Edwards

My four 2016 summer trips to Cuba

This will be my fourth visit to Cuba in as many months, with three visits to Guantanamo Bay and one to Havana.

My first visit to Guantanamo Bay in this cycle was to monitor U.S. Military Commission pre-trial hearings in the case against Hadi al Iraqi, who is alleged to have been a high-ranking al Qaeda Iraq member, and to have liaised between al Qaeda Iraq and the Taliban. Hs is charged with various war crimes.

My Hadi al Iraqi monitoring mission was through the Military Commission Observation Project of the Program in International Human Rights Law of Indiana University McKinney School of Law. Our project seeks to attend, observe, analyze, critique and report on U.S. Military Commissions. We are producing the Guantanamo Bay Fair Trial Manual, which is used and usable by any person interested in assessing whether the rights and interests of all military commission stakeholders are being afforded to them. We are interested in the rights of the defendants. We are also interested in the rights and interests of the prosecution, the victims and their families, the media, the guards and other prison personnel, witnesses, and others.

Edwards on U Boat Crossing Guantanamo Bay - 14 August 2016 - the morning that 15 detainees were released to the UAE, bring the total GTMO population down 20 from 76 to 61

Edwards on U Boat Crossing Guantanamo Bay – 14 August 2016 – the morning that 15 detainees were released to the UAE, bringing the total GTMO detainee population down 20 percent from 76 to 61

On my second trip to Cuba this summer I was part of a delegation from the National Bar Association (NBA), which is the organization principally for African American lawyers, judges, law professors, and other legal professionals. An NBA conference was held jointly with the Cuban bar association, focusing on a wide range of U.S. interests and Cuban interests, and interests affecting both countries. The topic of Guantanamo Bay came up repeatedly in our discussions with Cuban judges, lawyers and law professors. I also gave a lecture at the U.S. Embassy – Havana.

NBA - Ambassador's Residence - law profs and deputy ambassador

NBA law professors at Residence of U.S. Ambassador to Cuba, with Deputy Ambassador

My third trip to Cuba this summer was in August for a Guantanamo media tour. When I arrived on Guantanamo at noon on Saturday, 13 August 2016, 76 detainees were imprisoned there. When I left Guantanamo at noon the next day, Sunday the 14th, only 61 detainees remained. During the darkness of night, 15 detainees were released to the United Arab Emirates (UAE). That resettlement marked a 20% drop in the Guantanamo Bay detention population over night.

NBA - Group of law professors at end

NBA law professors at Cuban lawyers collective.

Writing projects of mine I was researching at Guantanamo on that third trip include The Guantanamo Bay Reader and a contributions to The Indiana Lawyer.

This fourth trip to Cuba is to monitor the al Nashiri hearings pursuant to our Indiana McKinney School of Law observation program.

More about all of the above (and below) is available on http://www.GitmoObserver.com.

Docketing Order – Motions on the schedule to be heard

The Military Judge in the al Nashiri case on 12 August 2016 issues a Revised Docketing order, outlining the proposed program for the 3 days of scheduled hearings this week (7 – 9 September 2016). Here is that order.

Poland Seeks Assurances From United States that Al Nashiri Will Not Face Execution

500px-Flag_of_Poland.svgThe Polish Foreign Ministry has requested assurances from the U.S. that Abd Al Rahim Hussayn Muhammad Al Nashiri will not be subject to the death penalty.  Reuters reported that according to the Polish Foreign Ministry Poland’s government “has taken steps to seek diplomatic assurances that the applicant (Nashiri) will not be subjected to the death penalty, first by engaging in diplomatic talks, and then by delivering an official note on the matter”.

The request from the Polish Foreign Ministry is presumably in response to the European Court of Human Rights judgement that Poland violated the European Convention on Human Rights by cooperating with the Central Intelligence Agency to detain Mr. Al Nashiri in violation of several articles of the Convention. The Court ordered Poland to pay €100,000 ($134,640) in damages to Mr. Al Nashiri, legal costs and expenses and ordered the Polish government to obtain diplomatic assurances from the U.S. that Mr. Al Nashiri would not be executed. The U.S. was not a party to the proceedings.

Reuters Report on the Polish Foreign Ministry Request

European Court of Human Rights Press Release, 24 July 2014

European Court of Human Rights Case of Al Nashiri v. Poland, Final, 2nd February 2015

Matthew Kubal, Indianapolis, Indiana, Tuesday, 3 March 2015

Preparations to Attend Abd al-Rahim al Nashiri Hearings at Guantanamo Bay, 1 – 7 March 2015

al Nashiri

Abd al-Rahim al Nashiri

I am scheduled to travel to Guantanamo Bay, Cuba to monitor the Al Nashiri Hearings at U.S. Military Commissions from 2 – 7 March 2015.  This is the case against a man, al Nashiri, who is charged in these proceedings with having being a masterminded of the October 2000 attack on the U.S.S. Cole, docked off the coast of Yemen, killing 17 U.S. sailors and wounding dozens more.

At Guantanamo Bay, I will be representing Indiana University McKinney School of Law’s Program in International Human Rights Law, which has received NGO Observer status by the Pentagon. This human rights program created the Military Commission Observation Project, and the Project nominated me for this mission.

Background

I have a Bachelor of Law from Moi University based in Eldoret Kenya (’09). I also hold a Master of Laws (LL.M.) degree in International Human Rights Law (’11) from IU McKinney, which is how I primarily got involved with the Program in International Human Rights Law.  In 2010, I was an intern in this human rights program, working in Vienna Austria in. As an International Human Rights Law student in Prof. Edwards’s classes, I gained valuable gainful insight into international criminal law, and the Guantanamo Bay case of David Hicks, on which IU McKinney students worked and on which Professor Edwards served as an expert witness.

I am currently studying International Research Ethics, but have not lost my interest in international law.

Experiences

I have had an interest in international law for many years now, but certain events heightened my desire to understand international criminal law and international humanitarian law.

On August 7, 1998, the US Embassy in Nairobi, Kenya was bombed, killing over two hundred person, wounding countless people, and causing significant property damage. There was a similar terrorist attack in neighboring Tanzania. The blast rocked our notions of the relative peace and security we had experienced as a nation. Al Qaeda claimed responsibility, and terrorism was at doorstep of my East African home.

Al Nashiri was a suspected mastermind of those East African bombings, and one of the suicide bombers, the driver of the truck carrying explosives who attacked the Embassy, was his cousin, Azzam (pg. 152, 9-11 Commission Report). It was purely coincidental that I was approved for the Al Nashiri hearings. Although as a nation we lost family and friends, I naturally was inclined to seeing all those involved pay for their crime. At the same time, reading about the torture that alleged masterminds and perpetrators were subjected to left me conflicted as a human being, and a continued believer in the universality and inalienability of human rights.

With this background and my academic experience in international law, I am eager to attend the hearings and apply what I have learned to assess whether the accused are accorded fair trials, and whether the rights and interests of all other stakeholders are being fully afforded to them.

Reason for Applying to be an Observer

I admired the work of the IU McKinney PIHRL before I even joined McKinney School of Law. In 2009, I was fortunate to meet Prof. Edwards in Eldoret, Kenya, and had a chance to work with interns from PIHRL who did their internships in the legal office where I worked in Kenya just after I completed my law degree. As an affiliate of Professor Edwards’ program, I was very proud when it earned United Nations ECOSOC Special Consultative Status, and very proud when the Pentagon granted the PIHRL NGO Observer Status to the Military Commissions.

Courtroom sketch of al Nashiri by artist Janet Hamlin.

Courtroom sketch of al Nashiri by artist Janet Hamlin.

Al Nashiri

As mentioned, al Nashiri is charged with masterminding an attack on USS Cole in October 2000 and on. He faces charges in perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hazarding a vessel.

Personal Thoughts on the Hearings

I look forward to attending the hearings. I am however conflicted. The purpose of allowing observers is to ensure free and fair trials are conducted before the Military Court at Guantanamo, yet the process is riddled with torture and gross human rights abuses. I have received countless of emails from human rights based organizations, to sign petition for the closure of Guantanamo Bay. I cannot say that I have made any active advocacy efforts towards this end. I find it unsettling after claims and evidence of illegal detention and a flagrant violation of rights, there is an interest in the right to a fair trial. At the same time, terrorist continue to launch attacks against innocent human beings. I have witnessed this in Kenya, and continue to witness it with the constant threats from the militant group Al- Shabaab. I desire justice for the victims of terrorism, and respect for human rights for those accused.

Travel to Guantanamo Bay, Cuba

My journey to Guantanamo begins March 1, and will return to the country on March 7. I will be posting my observations on this blog as I continue to prepare, and updating on the hearings on a daily basis. I look forward to meeting other NGO Observers who will be there, attending the hearings and applying the Guantanamo Bay Fair Trial Manual to give an objective and personal view of the proceedings.

Avril RuaAvril Rua, Guantanamo Bay, Cuba, 21 February 2015

Three Indiana McKinney Law Professors Travel to Guantanamo Bay, Cuba

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

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

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

Professors Edwards & Lemmer – The 9/11 case

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

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

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

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

 

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

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

Professor Wilson — The USS Cole / al Nashiri case

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

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

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

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

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

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

Dean Andy Klein - in front of building

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

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

(Post by by George Edwards)

Day 1 – Meeting with Gen. Martins, Chief Prosecutor Post 1 of 2 -Charles Dunlap

NGO Meeting with Chief Prosecutor General Martins

On the afternoon we arrived at GTMO for the al Nashiri hearings (Monday, 3 November 2014), the 10 NGOs met with Brigadier General Mark Martins, the Chief GTMO prosecutor. We met from 6:00 p.m. to 7:30 p.m.

We talked with him and his staff about what to expect in the Al-Nashiri hearings and about Military Commissions in general. Here is a summary of some our discussions, with more to come in future posts:

Criticisms of the Military Commissions

A main criticism of the Military Commissions is that many commentators believe that the Article III court system is better positioned to conduct these types of trials. Gen. Martins agreed that in most cases, Article III Courts can do an effective job.  However, he said that in some cases, the Military Commissions were the best forum for several reasons, including the complexity of the cases, rules of evidence in a combat situation, and others (to be discussed in additional posts to come).

One issue that he pushed back on concerned media reports that “hundreds” of “terrorism” cases have been tried in federal courts in the same time that only a few have been tried in Military Commissions. His issue with this statement is that it does not tell the entire picture.  His said that it is not an apples to apples comparison since only 15 of those cases were eligible for a Military Commission to begin with.  In many cases of concurrent jurisdiction, it may be appropriate for the federal courts to handle the cases but Military Commissions are set up for the particularly challenging cases which is why they take a great deal of time.  In addition, since federal legislation prohibits transferring detainees to the mainland, the Military Commissions are the only way forward with some of the cases based on the legislation creating the Military Commissions and providing them  sole jurisdiction.

International Law and the Military Commissions?

Another issue discussed was the international law requirement for Courts to be “Regularly Constituted.”  This presents a challenge since these Military Commissions were only created after 9-11 and while they are legislatively created and not Article II courts created under military / executive branch authority, some issues exist associated with their longevity and if they are in fact “regularly constituted.”  This is one area where having a federal court (Article III) trial would alleviate this concern.

Continuing this post..

I plan to continue this post tomorrow when I have additional time with the Wi Fi.

Today (Tuesday, 4 November) was pretty much devoted to boat tour of the Bay and associated areas.  Tomorrow (Wednesday, 5 November) we will be observing the first day of scheduled pre-trail hearings for Al-Nashiri.

More to come tomorrow….

Indiana Lawyer Lectures Before Guantanamo Bay Mission

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

Chuck Dunlap lectures in Professor George Edwards’ International Criminal Law class. Students in the class have conducted research on fair trial rights to incorporate into the Guantanamo Bay Fair Trial Manual.

Days before his mission to the Guantanamo Bay Naval Station (GTMO), Charles (Chuck) Dunlap lectured about the Military Commission hearings he will monitor at the remote military outpost on behalf of the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law. Mr. Dunlap is scheduled to observe pre-trial hearings in the case against Abd al-Rahim al Nashiri, who is alleged to be a mastermind of the 2000 suicide attack on the U.S.S. Cole off the coast of Yemen. The attack killed 17 U.S. sailors and wounded several dozen.

The Military Commission Observation Program has been sending Indiana McKinney School of Law to monitor hearings at Guantanamo Bay and at Ft. Meade, Maryland, where the GTMO hearings are simultaneously video-cast on secure lines. The MCOP mission is for IU McKinney students, faculty, staff and graduates to attend, observer, analyze, critique, and report on pre-trial hearings and trials.

Guantanamo Bay Fair Trial Manual

MCOP monitors are expected to use the Guantanamo Bay Fair Trial Manual as a tool to help them ascertain whether they believe that all Guantanamo Bay Stakeholders are receiving a fair trail. the Manual lists dozens of fair trial rights that are to be afforded to the prosecution, victims and victims families, the defendants, the press, security and other personnel who work with the prisoners and with the court, the U.S. public, and others.

Chuck Dunnlap & George Edwards - 31 October 2014 - With Guantanamo Bay Fair Trial Manual Draft - Stacks

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

IU McKinney Law Students Assist in Fair Trial Project

IU McKinney law students enrolled in Professor George Edwards’ International Criminal Law class have been conducting legal research that is being incorporated into the Guantanamo Bay Fair Trial Manuals. Mr. Duncan met with students in the class, lectured on issues to be raised during the al Nashiri hearings during his mission, and discussed with the students their research. Each student in the class has been assigned one or more specific fair trial rights to explore, and the students are examining the international law and domestic U.S. law that define the rights in the Guantanamo Bay context.

Mr. Dunlap traveled to Ft. Meade several months ago to monitor Guantanamo Bay hearings. The MCOP, which is also known as The Gitmo Observer, is part of the Indiana University McKinney School of Law Program in International Human Rights Law. Professor Edwards is the founder of the Program in International Human Rights Law, and the MCOP / Gitmo Observer.

CLOSING COMMENTS – Al Nashiri – 7 AUGUST 2014 – MARGARET BAUMGARTNER (FT. MEADE)

Me (Margaret Baumgartner) and one of my favorite members of our armed services.

Me (Margaret Baumgartner) and one of my favorite members of our armed services.

Who Am I & What Did I Experience at Ft. Meade?

To put a face behind the name, I thought I’d include a picture of myself.  That handsome man beside me is my brother, who is part of the reason I’ve become interested in this project.  My other brother is still active duty but I want to preserve some of his anonymity since he is deploying again.  Thus, I didn’t include a picture of him (I’m not slighting him!!!).

With everything I’ve seen this week, I’ve gone through a wide range of emotions.  I wasn’t expecting that to occur.  I would walk into the hearing in the morning, feeling that the process in place was a fair one (I do believe in justice) and then I would leave feeling conflicted.  Nothing is black and white in this process.  For example, I expected the government would be the party slowing the process down to avoid a verdict as they’ve taken this long to bring charges.  Instead, it was the defense filing motion after motion and going off on tangents during arguments.  I also wasn’t sure what I expected in Mr. Nashiri.  From what the contractors said and my observations, he was very respectful (I’ve heard some of the 9-11 defendants are prone to outbursts).  There were no outbursts and his responses to questions were polite.  I did find it easy to keep an open mind throughout the process and I hope that in my posts, I’ve appeared neutral towards all parties and issues.

I have no career experience with international human rights law or criminal procedure.  In fact, with my career, I’ve never seen the inside of a court room (patent cases rarely, if ever, go to trial).  The only exposure I have to criminal procedure are the courses I took in law school (IU-McKinney School of Law, J.D. ’10) with Professor William Marsh.  Professor Marsh would periodically go down to Guantanamo Bay to advise detainees of their rights.  He would come back and detail his experience to us in the classroom.  This mostly included a trip down and his clients refusing to see him.  My interest was piqued by his chronicles (enough that I took two semesters of Criminal Procedure with him!).

Website Resources

The materials provided on this website have been a valuable resource to me.  Having limited knowledge of this area of law, I found myself able to get quickly up to speed.  I specifically like having everything in one place to download.  We were also provided with binders containing everything on the website.  I liked having the motions, conventions, and histories to flip through as I needed reference during the hearings.  If I found anything that might have been lacking, it would be biographies or summaries of the parties on the prosecution and the defense.

Another helpful item was a checklist that serves as a guide on what to look for and comment on during our observations.  I love lists (I get such joy from checking things off or filling out forms….that’s probably why I’m a patent attorney) and the questions in the list helped acquaint me with the defendant in greater detail.  The checklist itself is lengthy and encompasses the entire process.  I found myself flipping around to find questions relevant to the pre-trial process, but it was a fantastic resource.

Thoughts on the Process

Did I witness human rights violations?  Is the process fair?  There is no definitive answer that can be formulated with three observation days and not having access to ALL (including classified) information.  I believe that the length of time that Mr. Nashiri has had to wait to have his day in court would not be stood for if this occurred in a U.S. civilian court.  There would be all kinds of uproar in the media.  Yet, you don’t see headlines drawing attention to this. I also understand that information that is critical to our national security cannot be revealed, but conversely, defense counsel needs to be able to build an informed case.  I feel that this lack of information has contributed to the onslaught of motions and arguments (which is in turn slowing the pace).  They are trying everything they can to get something to stick given their limited resources.

I’m given the appearance that Mr. Nashiri is being treated with dignity during his detainment.  He seemed in good physical health at the trial.  He did not appear to be starving or sleep-deprived.  He seemed to be accorded his rights to attend proceedings.  I was concerned about Mr. Kammen’s comments that they are monitored by video when they meet with Mr. Nashiri.  A comment was also made that they thought the room also had audio surveillance.  A client has a right to attorney-client privilege and it makes me question if Mr. Nashiri is being given this right.  I am satisfied that Mr. Kammen is learned counsel given his experience.  He honestly seems to be giving his client his best effort and he appears genuinely concerned for his client.

Closing Thoughts

I highly encourage anyone who is qualified to attend as a representative to apply.  This program is a necessity to bring awareness to what is going on in Guantanamo Bay.  We need to keep an eye on what happens because it will affect how we are viewed by the rest of the international community.  Around D.C., there are signs posted in the metro that say “If you see something, say something”.  They are for reporting suspicious activity.  I think this phrase is pretty apt here as well.  Get the word out.

Afternoon al Nashiri Hearing – 4 August 2014 – GITMO – Qifan Wang

Judge Spath is presiding over the al Nashiri USS Cole case.

Judge Spath presides over the al Nashiri USS Cole case.

Lunch 

After the NGO Observers had a quick lunch in the NGO Lounge, we returned to the courtroom for the continuation of the case against al Nashiri, an alleged mastermind of the USS Cole attack off the coast of Yemen that killed 17 U.S. Sailors and injured dozens more.

Judge fails to recuse himself.

Unsurprisingly, the first thing in the afternoon is Judge Spath’s denying the motion of recusal.

How many judges are on the case? Who is in charge?

The court move to motion AE305 dealing with another very strange situation.

Chief Judge Pohl presided over the al Nashiri case from its beginning, until last month when he detailed a successor, Judge Spath, to handle the case.

But Judge Pohl reserved his authority regarding some al Nashiri motions. The result is at this specific time, there are two military judges in charge.

The defense makes a textual interpretation of the Military Commission Act, which consistently use the singular form (‘a military judge’ and then ‘the military judge’). The defense wants Judge Spath to reconsider some prior motions Judge Pohl had ruled upon.

On the other side, the government does not have much trouble with that. The government is arguing that there is no actual overlap between the authority of Judge Pohl and Judge Spath.

Chief Judge Pohl originally presided over al Nashiri case.

Chief Judge Pohl originally presided over al Nashiri case.

Judge Spath asked whether he can issue order in contradiction with Judge Pohl’s former rulings. The answer would be yes. Then it just becomes more confusing since what would be the actual point for Judge Pohl to preserve this authority? The defense labels the potential impact on the court as ‘unlawful influence’, while the government rebuts as there is no prejudice shown.

It is somehow difficult for me to comment on this motion and these arguments. Just like lots of other motions or procedures, this is a unique situation and it’s foreseeably hard to find any reference or precedents. I agree that if any new fact or law occurred, a motion for reconsideration  (more…)

AL NASHIRI HEARINGS – 6 AUGUST 2014 – MARGARET BAUMGARTNER (FT. MEADE)

Quiet morning on at Ft. Meade. Sign in front of the Post Theater, the site of the secure video-link from GTMO

Today was a shortened day.  Hearings ran until the lunch recess.  The hearing after lunch was to be classified and then they would discuss scheduling for the next couple of months.  No more hearings are scheduled for this week.

The Hearings:  Appearance

Mr. Nashiri declined to be in attendance today.  He was present yesterday and on Monday.  The defense went through a procedure to demonstrate that Mr. Nashiri’s absence was voluntary, for the record.  This included having the staff judge advocate at Gitmo testify of the process whereby the accused was advised of his commissions for the day, advised of his rights, executed a voluntary waiver, used an interpreter, etc.  I think it was well established that Mr. Nashiri chose on his own accord to not attend and it was clear from the evidence presented by both parties that it was a voluntary choice.

The Hearings:  Decision on Funding for Defense Contractor

Judge Spath granted the request for 175 more hours of Mr. Assad’s time.  From the arguments made yesterday, I feel this is in line with what was presented by both parties (see yesterday’s post for the details and context).

The Hearings:  Tu Quoque

Tu Quoque (“you also”, in Latin), or as we sometimes say on the homestead “that’s the pot calling the kettle black”, means “a person is guilty of the very thing of which they accuse another”.  This doctrine was argued by the defense in trying to rationalize the alleged (more…)

Arrival at Guantanamo Bay – 3rd August – Qifan Wang

Sign at the GTMO Office of the Military Commissions Expeditionary Legal Complex

Arrival — NGO Observers Meet

Our flight from Andrews Air Force Base was delayed and we finally arrived at Guantanamo Bay around 2:45 p.m. on Sunday.

Soon the NGOs all met and we got familiar with each other and shared some ideas about the upcoming hearings in the al Nashiri case which we will be observing.

Motions of the Week

We have a copy of the docketing order and it lists some motions that will be heard. One of the emotions is about the issue of ex post facto. That is a defendant cannot be charged for behavior that happened before there was a law against it. Crimes cannot be made up and charged after the behavior happens. If the logic stands, all defendant’s conduct shall be barred from prosecution. On the government’s side there may be a necessity argument considering the gravity of the crime, the difficulties for investigation and collection of evidence, and so on.

At this moment I could not predict how the judge would rule or even explain this issue. The only impression I’m having is that it’s another hard decision to be made. We’ll see soon.

 

 

AL NASHIRI HEARINGS – 5 AUGUST 2014 – MARGARET BAUMGARTNER (FT. MEADE)

Ft. Meade Parade Grounds

Ft. Meade Parade Grounds

NGOs in Attendance

Today, I made another effort to speak with those in attendance at the Theatre.  It wasn’t a large crowd.  There was one guy who kept to himself (he left at lunch), the lady who polices the door, the two contractors handling the feed, and the wife of one of the prosecuting attorneys.  I spent some time talking to the wife and found her very nice.  She will be lonely once the trial begins.  The attorneys will not be leaving the base until it is over.  She did not give many thoughts on the hearings other than they have been going on a long time.

The Hearings:  Death Penalty 

Defense filed a motion to compel the procedures on the manner in which the Government intends to put Mr. Nashiri to death if he is found guilty.  Judge Spath mentioned that the timing for this motion is a bit early because if the defendant is acquitted, then this becomes moot and there are other pressing matters to attend to.

Recently, there was an execution that took almost 2 hours to complete in Arizona.  There is debate as to whether this execution was “botched”, resulting in cruel and unusual punishment.  Defense wanted to make sure that Mr. Nashiri would not be put to death in a manner thrown together at the last minute or would be executed in an unreliable method.  Defense also wanted to know the proposed location of said execution.  Mr. Nashiri cannot be moved to U.S. soil (ruled on in a prior hearing that he cannot be moved to the U.S.) and Gitmo does not have the facilities in place (more…)

Al Nashiri Hearings – 4 August 2014 – Margaret Baumgartner (Ft. Meade)

Logistics: Getting onto the Ft. Meade Base

It was really easy to get onto base.  Make sure that you veer off to the right at the main gate to the vehicle inspection station if you don’t have a DoD sticker.  If you mess up and go straight, they are nice and just send you off a quick side ramp to the inspection station.  Allow plenty of time for DC traffic if you are coming from town.  It was terrible, even at 6 am.  There are a couple of Starbucks within a short drive of the main gate off base.  I’m a coffee nut and need my java in the mornings, so of course, I would figure out where the locations are.

Logistics:  Post Theatre

There is parking at the Post Theatre (the Ft. Meade website said to park at Smallwood Hall and walk over, but it’s a distance in heels).  I was an hour early.  I had plenty of time to talk with the contractors working the Satellite feed.  They are really friendly once they were confident I wasn’t a member of the media out to mis-quote them.

Tidbits from the Contractors

Apparently, the Court Room at GTMO is the most hi-tech in the world.  I also learned that Mr. Kammen (defense counsel for al Nashiri) wears a kangaroo pin on his lapel as a protest to the court.  A kangaroo court, for those unfamiliar with the term, is “a mock court in (more…)

Additional Comments Prior to the al-Nashiri Hearings – M.Baumgartner

I’ve noticed similar remarks from people when I tell them what I will be doing next week:  “Didn’t that happen years ago?” or “That is still going on?”.  I think the same thing as I read through the binder of information and did my own research.  My husband, also an attorney by trade, and I discussed a lot of the information as I couldn’t help commenting while reading.

Why is it that someone who was captured in 2002, held for four years in secret prisons, charged in 2008 (those were dropped in 2009 when GTMO was SUPPOSED to be closed down), charged again in 2011, is just now getting to pre-trial hearings without release?  I skimmed the articles of the Geneva Convention and found myself wondering what we, as a country, are in violation of?   Conversely, does the Convention even apply to al-Nashiri as the alleged mastermind of the U.S.S. Cole attacks?  Is al-Nashiri a “prisoner of war” (he is referred to as an enemy combatant) as it is meant to be interpreted under the Convention?

These are some of the questions I plan to delve further into this week.

GITMO Pre-departure Impression – Qifan Wang – August 2 2014

I arrived at DC early in the morning. The flight from Indianapolis to DCA took less than two hours. It was Saturday morning thus the traffic was very smooth. The hotel I’m staying tonight is very close to the Andrews Air Force Base. Tomorrow morning the observers are suppose to get to the base before 630. So it’ll really another day starting early.

I review the travel documents and the procedure to be followed tomorrow. And also I check the MC website again for updates. However there’s nothing new released. Till now everything is basically set and I’m really heading GITMO!

Pre-hearing Thoughts on USS Cole Hearings – Fort Meade – Margaret Baumgartner

Selection to attend the hearings for the U.S.S. Cole attacks couldn’t have come at a more fitting time. I just returned from my last in-person visit with my little brother before his deployment. I say little in the fact that he is younger than me, but about twice my size in body mass! He is deploying for Afghanistan with the U.S. Army in a couple of weeks. This will be his second tour of duty in that particular conflict. My other brother has a tour of Afghanistan and a tour of Iraq under his belt (both with the Army as well). I see how these deployments affect my family. My parents have nightmares and are on edge. The worst time was when both were simultaneously deployed to Afghanistan a few years ago. Mom use to have nightmares about my youngest brother’s Black Hawk crashing, him taken prisoner, and she going over to rescue him armed with nothing but a wooden spoon (we tease her about that to this day).

Even though I am a Patent Attorney by trade, I have a great personal interest in matters relating to our country’s military and safety. I also believe in fairness. It is a double edged sword for me, but my legal training has taught me that there are two sides to every story. I believe that those on trial for attacks against our country should be accorded due process and fairness – a chance to be heard. If nothing else, it is because I would want the same for my brothers if they were captured and taken prisoner during their deployments.

I live in the D.C. area, so I have the luxury of not making travel arrangements. I work in-house at a very understanding and flexible company, which allows me to take part in this more freely than most other employers would. I look forward to attending the hearings next week at Fort Meade and to sharing my experience.