VFM

Public Denied Guantanamo Bay Hearing Broadcast at Ft. Meade, Maryland

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Observers from Indiana at Ft. Meade monitoring a Guantanamo Bay Military Commission hearing. Observers were permitted to see / hear the video / audio feed from the Guantanamo courtroom. (file photo)

Public observers at Ft. Meade, Maryland were banned today from watching satellite broadcasts of a hearing being conducted in the Guantanamo Bay courtroom, even though public observers physically at Guantanamo were permitted to view the same hearing.

Pentagon pledge of open and transparent hearings

For many years U.S. Military Commissions have been held at Guantanamo Bay, Cuba, to try individuals charged with war crimes. The Pentagon has stated that these criminal proceedings should be open and transparent, and that to facilitate transparency the Pentagon permits a small number of Observers to travel to Guantanamo to monitor hearings. Observers typically represent human rights or advocacy groups, or academic programs. Observers serve as eyes and ears for the general public, who do not have the opportunity to travel to Guantanamo Bay to witness hearings.

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The Guantanamo Bay Military Commission Courtroom, viewed from the spectator gallery. (file photo)

Observers sit in an enclosed spectator gallery in the rear of the Guantanamo courtroom, separated from the lawyers, prosecutors and defendants by a double-paned glass. Observers can see what is going on in the courtroom, and hear what is said.

The Pentagon also permits Observers to view Guantanamo proceedings by close-circuit television (CCTV) in a secure facility at Ft. Meade, Maryland. Observers at Ft. Meade can see what the cameras are pointing at in the Guantanamo courtroom, and hear what he Observers at Guantanamo hear.

Today, in what appears to be the first time, Observers were permitted to be present in the Guantanamo courtroom spectator gallery and monitor proceedings live, but Observers were not permitted to view those same proceedings by CCTV at Ft. Meade.

Thus, NGOs in the U.S. were effectively banned from monitoring today’s proceeding.

Why the ban?

It is unclear why Observers in the U.S. were banned from monitoring the hearings by CCTV at Ft. Meade today, while Observers could view the hearings live at Guantanamo.

Lawyers for the prosecution and defense apparently argued yesterday and over the weekend about the Ft. Meade ban. But, at least some of those arguments were held behind closed doors, with no Observer being permitted to hear.  Though motion papers were filed related to the ban, those documents are subject to a security review and are not releasable to the public until after 14 days, and may not be released even then.

There are 5 Observers at Guantanamo this week, and they were able to hear some arguments about the Ft. Meade ban. Indeed, they were in the courtroom able to witness today’s hearings – the same hearings from which the Fort Meade Observers were banned.

Again, it is unclear what the convincing argument is that Observers can watch today’s proceedings live in the Guantanamo courtroom, but other Observers cannot watch today’s proceedings by CCTV at Ft. Meade.

My Ft. Meade experiences today

I arrived at Ft. Meade well before the scheduled start time of today’s hearing. The staff member who oversees the Ft. Meade viewing room was there, the lights were on in the room, and the miniature lockers were in place in the rear of the viewing room so Observers could store their cell phones which can’t be used during the CCTV broadcasts.

The minutes ticked away, and soon I learned that an official message had been received that the hearings would not be broadcast to Ft. Meade today, and that was by order.

Nevertheless, I waited to see if  the hearing would open, with an announcement of closure made, before the transmission stopped.

Also, was there still a chance that the hearing would be transmitted in full? Just as an order is made, an order can be reversed.

In today’s case, the initial order regarding this week’s hearings was that Observers could monitor at Guantanamo Bay and at Ft. Meade. A subsequent order reversed the portion of the former order that permitted transmission to Ft. Meade. That reversal prohibited the transmission to Ft. Meade. That reversal could very well have been, and could still be, reversed, and transmission could have occurred today. It appears that it would only take a flip of a switch to begin transmitting from Guantanamo to Ft. Meade, and that such transmissions could be started at any point.

I continued to wait. The large video screen in front of the viewing room stayed dark and blank.

The person at Ft. Meade who oversees the technical side of the transmission sits in a different room of the same building where the viewing room is. I checked with that person, and was informed that there was no sign that the transmission would commence.

I left about 90 minutes into the hearing, with the screen still dark and blank, witnessing none of today’s testimony.

Options?

Yesterday I discussed in a blog post what my options were for being able to observe today’s hearings, particularly since I (and other Observers) chose not to travel to Guantanamo Bay this week in part because we were initially permitted to observe at Ft. Meade. We were informed 4 days ago (Friday) that NGOs would be banned from viewing the hearings at Ft. Meade. By then it was too late to catch the Sunday flight to Guantanamo Bay to view the hearings in person, sitting in the spectator gallery, along with the 5 Observers who are there. There are 14 seats reserved for Observers in the Guantanamo courtroom, so they had room for 9 more Observers this week.

Had I known last week what I know today, I definitely would have requested travel to Guantanamo Bay for this week’s hearings.

I am scheduled to deliver in Australia early next week, and I could have delivered (and still could deliver) that lecture by video rather than in person, freeing me to be at Guantanamo Bay for this entire week. Indeed, if I could go to Guantanamo tonight or tomorrow for the remainder of this week’s hearings that are not being transmitted to Ft. Meade, I would do so and deliver the Australia lecture by video.

Perhaps the Military Commission will permit Observers who were banned from viewing this week’s proceeding at Ft. Meade to view the videotape? The videotape cannot be classified, because if it were, then the 5 Observers at Guantanamo this week would not have been permitted to be in the courtroom for the hearing.

If the reason for the Ft. Meade ban was security associated with transmitting it stateside – maybe the possibility of interception / hacking – then I and other interested Observers could watch the videotape in a secure room at the Pentagon, or in a secure facility when we are next at Guantanamo Bay – and even possibly watch the video in the courtroom itself.

Also, if any victims and family members of victims (VFMs) are interested in watching the video, maybe they will be permitted to do so as well. Several FVMs were present in the Guantanamo courtroom for today’s hearings, but VFMs were denied the opportunity to observe today’s hearing at Ft. Meade, just as Observers were denied the opportunity to observe. Indeed, any member of the general public, aside from Observers, were similarly denied the opportunity to observe at Ft. Meade, though members of the general public are entitled to observe at Ft. Meade, as are Observers, VFMs, and media.

George Edwards

 

Are you going to Guantanamo? New Manual Excerpts for NGO Observers & Others

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Click this link for the full Manual — over 500 pages. Below you can download the Manual Excerpts!

If you’re going to Guantanamo Bay in January 2017, you might be interested in our new Guantanamo Bay Fair Trial Manual: Excerpts that offers insights into:

  • what the right to a fair trial is and how a fair trial should look
  • how to assess whether a fair trial is being afforded to all Guantanamo stakeholders
  • roles & responsibilities of independent Observers sent to monitor Guantanamo hearings
  • background info on Guantanamo the military commissions
  • a schematic of the courtroom (so you can know who is who)
  • and a 76 page “Know Before You Go To Guantanamo” insert that will tell you what to expect on your flight to Cuba, the ferry ride across Guantanamo Bay from the landing strip to your Quonset Hut accommodations, base security, food (which can be quite good!), beach, boating, and of course the courtroom, the hearings, and briefings by the prosecution and defense.

In the past, the Gitmo Observer (of Indiana University McKinney School of Law) distributed Manual Excerpts to Observers after we arrived at Andrews Air Force on the morning of our flight to Cuba (or distributed at Ft. Meade, Maryland, for Observers monitoring live by secure video-link from Cuba). Observers said they wish they had had it earlier.

So, we started to e-mail the Manual Excerpts to Observers as soon as we were sent e-mail addresses of Observers scheduled to travel, and we would receive those e-mails 3 – 6 days before the scheduled departure. Observers said that they wish they had it even earlier than that, that 3 – 6 days in advance wasn’t enough time.

So now we are posting the Manual Excerpts on this site, for access by anyone interested, whether or note traveling to Guantanamo Bay (or Ft. Meade or elsewhere), but especially for those traveling to Guantanamo Bay to monitor 3 weeks of January 2017 hearings. Ideally, about 40 independent observers would travel to Gitmo this month, to fill all the slots allocated to observers.

The Defense Department has stated that it favors strong and robust transparency. Having full complements of Observers for each hearing week would help promote transparency, human rights, and the rule of law for all military commission stakeholders (with stakeholders including the defense, the prosecution, victims and their families, witnesses, the media, observers, observer escorts / minders, the public, the U.S. soldiers and others who operate the detention facilities, the military commission court staff, and others).

Here are the Excerpts! Please let us know if you have any suggestions for improving our Excerpts, our full Guantanamo Bay Fair Trial Manual (over 500 pages in 2 volumes!) and our Know Before You Go To Guantanamo Guide (76 pages). Send to GitmoObserver@yahoo.com

31 May 2016 Hearing in 9/11 Case — Tuesday At Camp Justice, Guantanamo Bay, Cuba

 

9/11 lead defendant Khalid Shaik Mohammad, in the Guantanamo Bay courtroom. (Sketch by Janet Hamlin)

9/11 lead defendant Khalid Shaik Mohammad, in the Guantanamo Bay courtroom. (Sketch by Janet Hamlin)

Today’s hearings in the 9/11 case started on time in the Guantanamo Bay courtroom.

Defendants KSM, Ramzi bin al Shibh, and Ali Abdul Axis Ali (aka Ammar al Baluchi or “Triple A” or “AAA”) were present when I walked into the Gallery.  The other two defendants chose not to appear, which is not uncommon.

The Gallery is a small room with soundproof clear glass through which NGO Observers, Victim’s Family Members, Media, and other visitors are able to watch the hearings.  The Gallery has several televisions that show the hearings, with audio on a 40 second delay.  We can see what is happening live through the Gallery glass, and 40 seconds later see what we just saw on the TV.  It is only through the TV that we can hear what happened in the courtroom, 40 seconds after it actually happened.  The purpose of the delay is to prevent the release of classified/confidential information.

There is a curtain in the Gallery separating separating the media and Non Governmental Organization (“NGO”) observers from the victims and victims’ families.  The curtain is usually not in use. I have already written about the selection and approval process which allowed me to attend these hearings as an NGO observer. Victims and Victims’ family are chosen based on a lottery system.

Today’s Motions

The day’s hearing touched on three sets of motions:

  1. AE 018: The hearings on these motions deal with how certain information is treated and released to either the parties or nonparty actors.  I believe there were a total of 13 AE 018 motions on the docket for the week’s hearings.
  1. AE 422: The 422 motion was filed by the Government. The Government seeks the deposition of family members of the victims of September 11, 2001 during public pre-trial hearings scheduled for 4-14 October 2016.
  1. AE 133: This motion was filed by the Defense. It is an Emergency Motion to Remove Sustained Barrier to Attorney-Client Communication and Prohibit any Electronic Monitoring and Recording of Attorney-Client Communication in any Location, including Commission Proceedings, Holding Cells, and Meeting Facilities and to Abate Proceedings.

All the filings related to each motion can be found on the military commission website. Howeve,r not all will be public. http://www.mc.mil/CASES/MilitaryCommissions.aspx

 AE 018

I will not discuss each motion that falls under AE 018, but generally they deal with how communications and information can be released, how those communications are reviewed by the various security processes, and the format and timeliness of prosecution’s discovery responses.  There are processes in place for the how various communications are to be reviewed and delivered, however the processes continue to evolve as the litigation continues.  The discussions on these motions appear to be good examples of the types of issues that have delayed the 9/11 trial.  A few of the specific AE 018 motions are:

  1. AE 018 BB: Government Emergency Motion for Interim Order and Clarification that the Commission’s Order in AE 018U Does Not Create a Means for Non-Privileged Communications to Circumvent the Joint Task Force Mail System.
  2. AE 018EE: Defense Motion to Compel Discovery Responsive to Mr. Mohammad’s Request for Discovery Dated 14 March 2014. (emphasis added)
  3. AE 018 KK: Defense Motion to Invalidate Non-Legal Mai Restrictions Unrelated to Legitimate Penological Interests.
  4. AE 018MM: Defense Motion to Compel Reasonable Privilege Review Team Hours of Operation.

AE 422

This motion was filed by the prosecution to conduct depositions of certain witnesses. Specifically, the prosecution seeks to depose 10 victims’ family members during the October 2016 hearing. The prosecution wants the depositions conducted in open session at Guantanamo Bay, during the October 2016 hearing.  The prosecution cited ages and health concerns, the uncertain posture of the case, and the logistical difficulties for potential witnesses to travel during the actual trial.

The defense generally agreed with the need for depositions but expressed expected concerns about holding the depositions in open court and the proposed dates.  The defense teams were not all on the same page with respect to the deposition issue, but some of the arguments expressed by the defense were:

  • public hearing will taint potential panel members (jury)
  • there is no need to preserve the testimony because there are so many witnesses
  • the age and health of potential witnesses is not a factor
  • there is no need to have the depositions in open court if the evidence may never be admitted
  • if the prosecution wants to preserve evidence for the elderly and those in poor health, bringing them to Guantanamo Bay would be counterproductive
  • it does not make sense to have public depositions so close to the election
  • there is a difference between having the victims’ voice heard and presented vs. creating a public spectacle

I tend to side with the defense, and if I were to bet, I would bet that depositions will take place, but not in open session and not during the proposed dates. A very recent article by Carol Rosenberg on this issue.

AE 133

This is an ongoing motion dealing with allegations that the government has been trying to pierce the attorney – client privilege.  The defense is concerned that they are subject to monitoring which prevents frank exchanges between the attorney and the client.  The motion stems from the finding of microphones in fire detectors in rooms that were used for attorney/client meetings.

I suggest reading the AE 133 motions on the military commission website.  The discovery of these microphones is documented.

The prosecution stated that while the recording capabilities were present, they were not used during attorney/client meetings. The prosecution stated that while the microphones were used for other law enforcement purposes in the past, they have not been used to monitor attorney/client meetings related to these trials.

Mustafa_al-Hawsawi_2012My Personal Observations

One issue that stood out for me was the AE 018MM Motion.  This motion was filed by the defense to compel the Privilege Review Team (“PRT”) to have reasonable hours of operation.  The Privilege Review Team, among other duties, reviews all documents that are taken to a detainee, including any notes attorneys may bring to an attorney client meeting.  If the PRT is not operating, then the team of attorneys cannot take any notes into the meeting.  Counsel for Hawsawi told the Judge that the PRT was not “open” on the Saturday and Sunday before Monday’s (Memorial Day) hearing, so they had to meet with their client without being able to bring any notes.  To me, this sounds outrageous.  How is it possible that a team of attorneys who are only able to see their client during very limited hours, after chartering a military flight that flies infrequently, are not able to bring in notes to a client a day before the hearing just because staff of the Period Review Team did not want to work?

I was initially “convinced” by the defense arguments. However, the prosecution presented a different side to the story.

The prosecution argued that PRT staff are like any other employees and it is not unreasonable for them to have the weekend off, especially a holiday weekend.  Additionally, the prosecution stated that the PRT is available as long as appointments are made in advance.  Prosecution also stated that it is not uncommon for the defense team to not show up to scheduled appointments.  After the prosecution presented their argument I was less outraged, and more confused.

I noticed this sway in many of the arguments I have seen in my limited experience with the Military Commission: the movant pulls on emotional strings and presents facts that help their case, the opposing party presents facts in a way that appear to be unemotional and paint a fuller picture.  In the end, I am happy I don’t have the burden of having to make a decision.  Having only been at Guantanamo Bay for a few days, and only being able to see what I am allowed to see, I find it very difficult to have a strong opinion one way or the other.  It is difficult to gather unbiased information because of the emotions and passions tied to the subject matter.  Information I receive could be driven by agendas that I do or do not understand.  I have made an effort to keep a neutral point of view in order to allow me to gather as much information as possible before I start to lose impartiality.

AE 422

The hearing on AE 422 was understandably emotional.  The curtain separating the media and NGOs from the victims’ family members was drawn shut.  The parties argued about the prosecution’s motion to depose, in public court, family members of the 9/11 victims.  One particular testimony would revolve around a telephone conversation occurring as a plane hijacking was taking place, just before United 175 flew into the South Tower.  The arguments went into additional details, which I will not do here, but the hearing’s transcript is available on the website of the Military Commission.

KSM was also emotional.  He, without the Judge’s permission, expressed his feelings regarding the proceedings.  I could not make out everything that was said but part of it dealt with the fact that his attorney is an American person and is representing American interest, which is not neutral.  Judge Pohl responded with, “one more word and you’re leaving”.   Later, Mr. Nevin (Lead Counsel for KSM) explained that his client was upset because an objection was overruled and that a lack of an interpreter prevented the defendant from understanding the meaning of “deposition”.

Wednesday

On Wednesday the Commission held hearings open to NGOs, Media, and Victims’ of Family Members in the morning session; the Commission held closed session in the afternoon.  I will write about these later, but I need to get some rest before the hearings tomorrow.  The hearings tomorrow are scheduled to include two witnesses.  Both of the witnesses are high value detainees who have not been charged with a crime.  They will testify during the hearing on AE 152 which is the Emergency Motion for Show Cause Why the Government, JTF Camp Commander and JTF Guard Force Members Should Not Be Held in Contempt.  The motion’s allegation is that Mr. Bin al Shibh continues to be subjected to external sounds and vibrations while detained.  Hassan Guleed is expected to testify at 10 in the morning and Abu Zubaydah is expected to testify at the start of the afternoon session.

Leontiy Korolev, J.D., Indiana University McKinney School of Law

Participant, Military Commission Observation Project (MCOP), Program in International Human Rights Law (PIHRL), Indiana University McKinney School of Law

30 May 2016 Hearing in 9/11 case — Monday at Camp Justice, Guantanamo Bay, Cuba

Leontiy Korolev at Guantanamo Bay, Cuba on Memorial Day, 30 May 2016

Leontiy Korolev at Guantanamo Bay, Cuba on Memorial Day, 30 May 2016

On Monday, 30 May 2016, the U.S. Military Commission held the first day of this week’s pre-trial hearings in the case against the 5 alleged masterminds of the 9/11 attack on the World Trade Center and Pentagon. I was sitting in the Guantanamo Bay courtroom during today’s hearings, which were fascinating.

This post will share about the substance of today’s hearings. Near the end of this post I will share some of my personal observations and opinions about the proceedings and process.

May 30 2016 9/11 Hearing

Yes, it is Memorial Day, but the Judge made it a while ago clear that today’s hearings would take place.

The hearings started with a discussion of the schedule of motions to be argued this week.  The following is a list of some of the motions that will be argued, in the order they will be argued, at least as of the end of Monday’s public hearing. Each motion is assigned an “AE number”.

AE 380:   Whether or not Walid bin ‘Attash can remove his counsel.

AE 161: Defendants motion for release of unredacted copies of unclassified information.

AE 400: Defense motion for the release of full transcript of the open hearing which government redacted after the fact.

AE 018W: Defense motion to correct problems with the legal mail regime.

AE 018Y: Prosecution motion to block communications between defendants and other except through JTF-GTMO Protocol.

AE 152: bin al Shibh motion for Contempt of the Government for not stopping the “harassing noises and vibrations”.

AE 422: Prosecution motion to depose victim’s family members during October 2016 hearing.

 

Witnesses

As of now both the defense and prosecution will present witnesses for the 152 motion.  The defense will present two current detainees, one on Thursday morning, and one on Thursday evening.

I have no doubt that both detainees will present captivating testimony, but the potential presence of one of the detainees is is particularly noteworthy.

Abu Zubaydah

Abu Zubaydah

Abu Zubaydah has not been seen since his 2002 capture by the CIAhttp://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article80052562.html

The Prosecution will present a former Camp commander on Friday morning.

 

Late start to hearings

There was a bit of a late start to the hearings today, in part because there were new guards assigned to secure the proceedings.  This fact was brought up several times during the hearings today, most notably after the lunch break when counsel for Khalid Shaik Mohammad (“KSM”) stated that the guards would turn down the A/C in KSM’s holding cell.  [Side note, I was able to go into one of the holding cells as part of the tour of Camp Justice on Sunday (he was not there).]  Bin ‘Attash actually jumped into the conversation twice expressing his displeasure with the situation.  This lead to a “that’s enough Mr. bin ‘Attash”, from Judge Pohl.

A Brief Overview of Some of the Hearings on the Motions

AE 380: bin ‘Attash audibly confirmed that he would like to remove his counsel and later followed up by saying that in 2013 he was able to remove an assistant D.A.G. from his team.  He argued that he should be able to remove the current assistant attorney, Mr. Schwartz as well.  The issue is whether or not the defendant can remove non-statutorily required counsel.  The Judge gave defense 2 weeks to file a brief showing why such counsel cannot be removed from the defense team up request from bin ‘Attash.

AE 161: There are laws that allow the government to redact certain information from disclosure.  The defense argues that the prosecution is overstepping its bounds because information is being withheld improperly and the redacted information makes it impossible for the defense to use some of the documents they receive.  For example, in one discovery response the prosecution redacted administrative information from the provided documents, which made difficult to match up the documents with their respective attachments.

AE 400: This was a continuation of oral arguments on a motion that I heard argued when I travelled to Ft. Meade in February, 2016.  The controversy revolves around an open hearing held on 30 October 2015.  After the 30 October 2016 hearing, a redacted transcript was released.  The Defense and media companies filed a motion to release the entire unredacted transcript.  I published an earlier blog on the motion on 22 February 2016. I found it interesting that this motion may be one of the few times when news outlets such as Fox, MSNBC, and New York Times are all on the same side of an issue.  In today’s hearing the parties argued weather or not the discussion of the redacted information can be had in an open session.  The defense argued that it could, the prosecution argued the opposite.  The Judge stated they will meet in a closed session (505 hearing) to determine if the substantive hearing (806 hearing) can be held in open session.

David Nevin and KSM

David Nevin and KSM

David Nevin, Learned Counsel for KSM, requested that KSM be present at both, the hearing to determine if there should be a closed hearing, and at the closed hearing if one is held.  The Judge ruled that KSM cannot be present at the 505 hearing, but withheld a ruling regarding the 806.  He later denied the request for KSM to be present at the 806 hearing as well.

AE 428: The defense filed a motion for a continuance because various members of the different defense teams have not received proper clearance from the government to view certain evidence.   The prosecution argued that a continuance is not necessary because some of the necessary clearance forms were not filed properly.  The Judge did not grant a continuance but did bring up a point worth discussing – judicial economy.  If clearance is given after many issues have been litigated to conclusion, motions to reconsider will be filed for each such issue since the granted clearance would create new evidence.  New evidence bolsters the case for reconsideration of a previously litigated issue.

Backs of tents where NGOs live at Camp Justice.

Tents in Camp Justice where NGOs live at Guantanamo Bay. The Defense had ordered that its lawyers and staff not live at Camp Justice due to concerns about possible carcinogens.  The order was lifted prior to this week’s hearings.

AE 426: This motion dealt with the habitability of facilities at Guantanamo Bay.  Specifically, this motion dealt with the presence of toxins at Camp Justice, which happens to be the place where I will be living for for the next week.  Here is a Link to an article discussing various carcinogens found in the soil at Camp Justice as well as an Order forbidding defense staff from sleeping at Camp Justice.

AE 018W and AE 018Y: The hearings on these motions dealt with the transmission of communications by defendants to third parties through the defendants’ counsel.  Defense argued that it should be able to transmit any unclassified documents to third parties, or alternatively there should be a specific process they can follow to determine what communications can be cleared for release.

Mustafa al-Hasawi, defendant # 5 in the 9/11 case

Mustafa al-Hasawi, defendant # 5 in the 9/11 case

However, Counsel for Hawsawi (defendant # 5 in the 9/11 case) made it clear Hawsawi would not agree to any such process, they would especially not agree to any such process unless the process was transparent and those involved in any review were identified. Counsel for Hawsawi argued that the government is not releasing certain communications because it does not like the message, not because the communications are a threat to national security.  The AE 018 motions dealt with a handful of communications that were provided to third parties including a defendant’s family and the White House.

AE 183: Defense argued that defendants should be able to call their attorney from Camp Justice whenever necessary, and vice versa.  Currently there is no efficient way for the defense counsel to communicate with their client without being in the same location.  Prosecution argued that there is no way to establish a secure connection between the detainees and their counsel. Some research into the current logistics, including any security hurdles, of the communication between defendant and counsel both in person and from the U.S. would likely lead to interesting findings.

My Personal Observations

There just is not enough time to process and report in a meaningful way my experience so soon after the end of the first day’s hearings. I feel very grateful to finally be here and have the opportunity to observe these hearings and interact with the other people here.

All five defendants were present on the first day of hearings.  KSM wore his cameo jacket as a statement to show that he is a combatant.  There does not seem to be a simple explanation here for anything, while KSM’s attire at first seems to be just a statement in support of the actions he has allegedly committed, there are deeper issues at play.  For example, since KSM is a combatant, he, based on precedent, should be able to wear his uniform in a military trial.  Denying his request to do so, may impinge on his right to a fair trial. This article briefly touches on the KSM’s attire choice.  I also noticed that Hawsawi sat on his pillow, presumably to minimize discomfort caused by events occurring during his detention.

Our NGO group was able to return from lunch in time to catch the end of the defendants’ and one defense counsel’s prayer session.  During the prayer, each defendant had two guards standing back to back.  One in the direction of the defendant, and another facing the opposite way.  My first thought was that the guards were there to protect everyone from the defendants.  I quickly realized how insane that thought was.  Given the circumstances, the detainees are very powerless.  The main reason for the guards, in my mind, is to protect the detainees.

Unrelated Personal Observation

We have had some issues with connectivity which partly explains the reason for not posting more about my travel and arrival.  There are 8 ethernet jacks in the NGO lounge for NGO observers to use to hook up to the internet.  Only two of them worked over the weekend, and even those two are still very slow.  There are many rights and interests that come into play with what may seem like an “inconvenience”.  For example, NGOs have an interest to report the ongoings at Guantanamo Bay to the outside world.  The public has an interest to know the ongoings at Guantanamo Bay.  The defendants have a right to a public trial. Both the Government and the prosecution have an interest in allowing the public to be aware of the ongoings at Guantanamo Bay.  All of these rights and interests are effected by a slow and inconsistent internet connection.  Additional unrelated point — there is an active bee hive a few feet away from the entry to the NGO Lounge.  The NGO Lounge is the only place where internet connection is available to NGO Observers at Camp Justice.  Other than the internet, the experience here has been excellent.  Everyone we have encountered has been pleasant including our escort, drivers, members of the media, and the attorneys for both sides.

Many of the ideas above are based on my memory and understanding of the 30 May 2016 hearing and related motions and transcripts. The foregoing is my opinion in my own personal capacity, and my blog posts and other comments are my own and do not necessarily reflect those of the Indiana University McKinney School of Law or anyone else, for that matter.

Leontiy Korolev, J.D., Indiana University McKinney School of Law

Participant, Military Commission Observation Project (MCOP), Program in International Human Rights Law (PIHRL), Indiana University McKinney School of Law

 

USS Cole Case Day 1 Wrap Up: Guantanamo Bay

From the ferry crossing Guantanamo Bay, the GTMO airport where we arrived in the background.

View from the ferry crossing Guantanamo Bay, the GTMO airport where we arrived in the background.

Touch Down at GTMO

The first day we arrived at Guantanamo Bay was sobering. This side of the island is beautiful, and everyone at the Base who met us is very friendly. We arrived, went through security and got on vans to head to the Ferry. It is a short ferry ride to Camp Justice, and we had interesting conversations with other observers and different people going to Guantanamo for different purposes unrelated to the pretrial hearings. Our luggage was waiting for us when we arrived. We have all been set up in two tents; one for the men and one for women.

On Sunday, we went for dinner at an Irish restaurant. The food was everything but Irish, but I cannot judge seeing as I ordered tilapia! I found it interesting that we could not all sit together as we had not made a reservation 24 hours in advance. Yesterday (Monday, the 2nd) we switched things u and went next door the Irish place, the Windjammer, which has the exact same menu as the Irish place. Sigh.

Guantanamo Bay Courtroom from the viewing gallery, behind  the thick, bulletproof glass.

Guantanamo Bay Courtroom from the viewing gallery, behind the thick, bulletproof glass. (Photo credit: CBS News. Photo by Joe Raedle/Getty Images)

Courtroom Tour

Day 1 at Gitmo started with a tour of the Court. We were not able to go inside the actual courtroom as they had already prepared it for the session. We sat in the gallery, which is behind glass windows that have TV monitors transmitting with a 40-second delay to allow for time to censure any classified information that may be said in court.

We talked about the trial process in Military Commissions, Convening authorities and their roles, especially in light of the Unlawful Influence motion that was set to be ruled on., how juries and selected,  and went over some court rules and structure.

Court Session Begins – Victims & Family Join

We reconvened at the court at 10:30 a.m. This time we were joined by Victims and Family who sat on the opposite end of the room. In the room, we had our NGO escorts as well as some military personnel to escort us if we needed to leave the room, or if we needed anything else. One of them was actually from Indiana. Always great to meet “fellow Hoosiers”. Our escorts have been wonderful the entire time, and drive us anywhere we wish to go, including to the court a few yards away sometimes.

We were given assigned seats even though the gallery was half-empty.

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

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

From where I was in the back row, I did not see the bring al Nashiri in, but I did see him during our “comfort break”. He was in a white jumpsuit and was chatting with his team, looking very calm. At 50 years old, he certainly looks a lot younger in my opinion

Judge’s Ruling on Unlawful Influence by Marine Major General Vaughn Ary (retired)

First order of business, Judge Spath delivered his ruling on the Unlawful Influence Motion (AE 332, Defense Motion to Dismiss for Unlawful Influence and Denial of Due Process for Failure to Provide an Independent Judiciary). The Guantanamo Fair Trial Manual addresses the relevant laws on Unlawful Influence on page 63.

The judge ruled that there was an appearance of Unlawful Influence by retired Marine Major General Vaughn Ary, the Convening Authority (CA) but that because he found Ary did not act in bad faith he did not allow the defense remedies of dismissing the case (See pg. 5896 Unofficial Unauthenticated Transcript, al Nashiri, A March 2015). He further ordered that the CA and his legal advisors be disqualified from taking any further action and making any further recommendations in the case. He called for the appointment of a new CA.

There will be no further evidentiary hearings this week, and several people have mentioned that we may wrap up the sessions as early as today (Tuesday).

The judge mentioned that a ruling on a Motion 205 would be out soon, but that he had denied 205 BB (a motion to reargue) and 205 EE (a motion to supplement additional pleadings). I later learned during a briefing with General Martins that these were defense motions to seal some of al Nashiri’s medical records for privacy reasons.

More Motions

At the 1300hrs (1:00 p.m.) session, the court heard spirited arguments from both the defense and prosecution on the following motions:

  • AE 331 A – Government Motion To Amend the Docketing Order (February 2015 Hearing) To Allow The Government To Determine The Manner In Which It Presents Its Evidence Relating To The Admissibility Of Government-Noticed Hearsay And Evidence Identified In AE 207;
  • AE 319J – Defense Motion to Continue Further Hearings on the Government’s Motion to Admit Hearsay Until the Court of Military Commissions Review Renders a Final Judgment on Appeal;
  • AE 256D, Defense Motion to Strike AE 256C: Government Notice of Bill of Particulars (Defining Civilian Population as Used in Aggravating Factor #5);
  • AE 257D, Defense Motion to Strike AE 257C: Government Notice of Bill of Particulars (Defining Civilian Population as Used in Aggravating Factor #5).

Meeting with Chief Prosecutor General Martins

The session ended at about 3:30 p.m. to the public, and continued to discuss a classified Motion 505 in chambers. We met about an hour (for about an hour) later with Army Brig. General Mark Martins, the Chief Prosecutor in the Office of Military Commissions.

We went over some of the hearsay rules under the Military Commissions Act relating to some of the motions discussed in the afternoon session, and answered our questions relating not just to the USS Cole.

Meeting Carol Rosenberg

Before this meeting however, I bumped into Ms. Carol Rosenberg, a notable reporter from the Miami Herald who is known as the Dean of the GTMO Press Corps and has been reporting on Guantanamo since 2002. She said she had read my tweet, and that she knew how to adjust the air conditioning in the tents! Who knew! She later came back and showed us how to do just that. We made very minimal adjustments so as not to let any rodents in or get the tent moist and moldy. Thanks to that, night 2 was a sleeping-bag-only affair.

Tuesday’s Court Schedule

Today (Tuesday) the court session begins at 9:00 am.

Avril Rua Pitt, Camp Justice, Guantanamo Bay, Cuba, Tuesday, 3 March 2015

Guantanamo NGO Observers from IU McKinney Law School Featured in Indiana Lawyer

Military tribunals for some accused of terrorist attacks on the United States are held at Camp Justice at Guantanamo Bay. (Photo by Catherine Lemmer, IU McKinney School of Law)

Military tribunals for some accused of terrorist attacks on the United States are held at Camp Justice at Guantanamo Bay. (Photo by Catherine Lemmer, IU McKinney School of Law)

The Indiana Lawyer published the following article by Marilyn Odendahl on 25 February 2015. Text and photos are in the original article.

IU McKinney Gitmo Observers Illuminate Murky Proceedings in Gitmo Trials

by. Marilyn Odendahl (25 February 2015)

      The U.S. Military Commission Observation Project overseen by Indiana University Robert H. McKinney School of Law is continuing to send individuals to watch and report on the accused terrorists’ trials being held at Guantanamo Bay. Blog posts and articles from the observers chronicle the glacial pace of the proceedings, the unexpected courtroom twists and the nagging constitutional questions.

Professor George Edwards

Professor George Edwards

The project regularly sends faculty, students and alumni to either Guantanamo Bay or Fort Meade in Maryland to observe the tribunals. Professor George Edwards, founder and director of the project, explained the work of the observers is not to address the political issues or comment on the substance of the military commissions.

“We’re interested in seeking to assess whether the stakeholders are receiving the rights and interests that are afforded to them,” Edwards said. “(Those rights) include the right to a fair hearing, the right to an independent tribunal, the right to trial without undue delay.”

He pointed out the observers also are looking at the stakes that the victims of the terrorists attacks and their families have in the proceedings. What about their rights to have access to the trials, to make statements, to confront and to have closure?

Professor Catherine Lemmer

Professor Catherine Lemmer

IU McKinney librarian Catherine Lemmer, who Edwards described as instrumental in helping to build the observation program, heard some victims’ voices when she traveled to Guantanamo Bay for the hearings of the alleged co-conspirators of the Sept. 11, 2001, attacks.

One man said he was attending the proceedings to remind the judge and attorneys that planes had flown into the twin towers of the World Trade Center and the Pentagon. A mother of a fallen firefighter said she was struggling to hang on to her opposition to the death penalty, but she believed the trials had to be fair because the United States would be judged by how it handles the detainees.

The project drew praise from panelists who participated in a recent forum at the law school examining the tribunals. Hosted by the Indiana International & Comparative Law Review, the symposium brought together legal scholars from IU McKinney and around the country to discuss whether the end is coming for Guantanamo Bay or if the practice of international criminal law has reached a turning point.

An IU McKinney symposium examined trials at Guantanamo Bay. Panelists included (from left): Richard Kammen, Kammen & Moudy; Shahram Dana, The John Marshall Law School; George Edwards, IU McKinney; and Paul Babcock, editor-in-chief of the Indiana International & Comparative Law Review. Chris Jenks of Southern Methodist University Dedman School of Law participated via video link. (Photo by Dave Jaynes, courtesy of IU McKinney Law)

An IU McKinney symposium examined trials at Guantanamo Bay. Panelists included (from left): Richard Kammen, Kammen & Moudy; Shahram Dana, The John Marshall Law School; George Edwards, IU McKinney; and Paul Babcock, editor-in-chief of the Indiana International & Comparative Law Review. Chris Jenks of Southern Methodist University Dedman School of Law participated via video link. (Photo by Dave Jaynes, courtesy of IU McKinney Law)

Two participants – Shahram Dana, associate professor at The John Marshall Law School and Chris Jenks, assistant professor at Southern Methodist University Dedman School of Law – on the second panel discussion both noted IU McKinney’s effort in documenting the proceedings at Guantanamo Bay is shining a light on America’s response to terrorism and will be an invaluable resource for history.

Lemmer advocates for the proceedings to be shown on C-SPAN. The American public should see for themselves, she said, so they form their own opinions. By seeing what is happening in that courtroom, she said it is easy to realize how things could go wrong.

“The role of the attorneys, our role (as citizens) is to hold fast to the Constitution when really bad things happen and everybody wants to step over it,” Lemmer said. “Ultimately, the price we pay for not doing it right is incredible. This is our Constitution and it is getting overwhelmed, which should not happen.”

Lemmer took her first trip to Guantanamo Bay in December 2014. However, the proceedings were derailed by the ongoing revelations that the Federal Bureau of Investigation may have infiltrated the defense teams. The FBI is accused of listening to defense attorneys’ meetings with their clients and reviewing their correspondence as well as attempting to turn legal team members into informants.

When she returned in early February 2015, the FBI conflict-of-interest issue was still being argued. Then unexpectedly, Ramzi Bin al-Shibh, one of the defendants in the courtroom, said he recognized his interpreter as someone he encountered during the period he was held at one of the Central Intelligence Agency’s secret prisons. Another defendant told his attorney he also remembered the interpreter from the black site.

“It became very surreal,” she said.

To Indianapolis defense attorney Richard Kammen, the confusion and conundrums that swirl around Guantanamo Bay could be resolved by moving the proceedings to federal court. Kammen, lead counsel for USS Cole bombing suspect Abd al-Rahmin al-Nashiri, pointed to the hearings of accused Boston Marathon bomber Dzhokhar Tsarnaev as an example that U.S. courts can handle high-profile terrorism cases.

“There’re so many more moving parts down there than there would be in federal court, so things just get more messed up,” he said.

Currently, Kammen and his defense team are tangling with the federal government to release the details of the treatment of al-Nashiri while he was kept in a black site. The release of the CIA Torture Report publicly confirmed that the defendant had been physically, psychologically and sexually tortured, but Kammen said the defense still needs details of what was done and when.

Professor Tom Wilson

Professor Tom Wilson

IU McKinney professor Lloyd “Tom” Wilson is scheduled to observe the al-Nashiri proceedings during his first trip to Guantanamo Bay. The task of watching and relaying what is happening will be difficult, he said, because he will be seeing just a snapshot of a long, complex and secretive process.

Wilson was careful in his preparation for the trip, not wanting to form any preconceived ideas or prejudices before he arrived in the courtroom. He is going out of a sense of civic duty and to understand the situation better than he does now.

Still, the proceedings are not easy to comprehend and continue to spark debate many miles away from the detention camp.

As part of his remarks during the IU McKinney symposium, Kammen described Guantanamo Bay as a “law-free zone.”

Co-panelist Jenks countered that characterization, arguing traditional rules governing the treatment of prisoners of war have been upended by terrorism. In previous conflicts, nation states battled each other but now the United States is fighting against groups that are unconnected with any organized government or country. Even so, he continued, the detainees at Guantanamo Bay have a right to counsel and are being given a trial.

Kammen responded that even if his client is acquitted, he will not be released.

“That,” Kammen said, “is a law-free zone.”

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The original Indiana Lawyer article can be found here:  http://www.theindianalawyer.com/iu-mckinney-gitmo-observers-illuminate-murky-proceedings-in-gitmo-trials/PARAMS/article/36436