Guantanamo Bay

Will I Go To Guantanamo Bay, Cuba, Tomorrow?

Professor Edwards (right) with one of his Indiana law students (Ms. Sheila Willard) at Guantanamo Bay, Cuba. (file photo)

It’s Sunday morning, and I am scheduled to fly to Guantanamo Bay, Cuba, tomorrow morning, Monday, 19 August 2019.

But, my years of traveling to Guantanamo have taught me that I could arrive at Joint Base Andrews (Andrews Air Force Base) tomorrow, and the trip could be cancelled. I’m not talking about a cancelled flight because of a plane’s mechanical issue, with everyone waiting for a replacement plane, or a possible weather delay. Instead, the 10 days of U.S. military commissions I am slated to monitor at Guantanamo could be scratched, with there being no need to fly down this week.

In the over 15 year since I first became involved with Guantanamo, I learned to expect the unexpected.

Hadi al Iraqi / Nashwan al Tamir, the alleged 2nd highest al Qaeda member in U.S. custody. Professor Edwards is scheduled to attend his hearings at Guantanamo from 19 – 29 August 2019.

This article describes what is expected to happen during the upcoming week of hearings in the case against a Guantanamo detainee the U.S. government calls Hadi al Iraqi, but who prefers to be called by what he says is his birth name, Nashwan al Tamir.

But first, I’ll explain how I got booked on this flight to Guantanamo.

My Guantanamo mission

I was a professor of law at Indiana University McKinney School of Law when in 2003 a Pentagon officer asked if I would do a project related to over 650 detainees then being held at Guantanamo. My Indiana students and I researched rights afforded to defendants at Nuremberg and Tokyo after World War II, thinking that at a minimum, rights afforded to defendants then should be afforded to any detainees facing trial by military commission at Guantanamo.

After that project ended, my Indiana students (and Stetson law students) and I worked on the cases of Australian David Hicks (whose 2007 proceedings became the first completed U.S. military commission since World War II), and Canadian Omar Khadr (who was 15 when picked up, who was then taken to Guantanamo and charged).

Fast forward, and I founded the Military Commission Observation Project at Indiana, through which we send faculty, staff, graduates and current students to Guantanamo to monitor hearings, exploring rights afforded to all Guantanamo stakeholder groups. Stakeholder groups include defendants, victims and their families, Guantanamo guards, defense and prosecution lawyers, witnesses, media, observers / monitors, and others. (For more information on different categories of Guantanamo stakeholders, see www.GuantanamoBayReader.com).  

Guantanamo Non-Governmental Organization (NGO) Observer Challenge Coin — with our Stated Mission —
To Attend, Monitor, Be Seen, Analyze, Critique & Report

Our Project spells out the mission of Guantanamo Observers / Monitors as follows:  To attend, monitor, be seen, analyze, critique and report on Guantanamo proceedings.

For our Guantanamo Bay Non-Governmental Organization (NGO) Observer / Monitor Challenge coins, see here.

We disseminate information through our blog at www.GitmoObserver.com.

Hadi / Nashwan Background

Hadi / Nashwan is an alleged high-level member of al Qaeda Iraq who allegedly liaised with the Taliban and perpetrated war crimes in Afghanistan and Pakistan in 2003 – 2004. The government claims that he is the second highest ranking al Qaeda member in U.S. custody.

He is charged with allegedly commanding al Qaeda and Taliban insurgents who attacked U.S. and allied forces in Afghanistan and Pakistan after the U.S. and coalition invaded after 9/11.

The specific war crimes charges against him include denying quarter, attacking protected property, using treachery or perfidy, and attempted use of treachery or perfidy. Also, the US alleges that he conspired to commit war crimes. Allegedly, persons under his command planted IEDs that killed coalition soldiers on roads, fired at a U.S. military medical helicopter, and attacked civilians including aid workers.

He was taken into custody in 2006, arrived in Guantanamo in April 2007, and arraigned in June 2014 on war crimes charges that carry a maximum sentence of life in prison.

For at least the last two years, he has suffered from degenerative disc disease, for which he has undergone at least 5 surgeries by military doctors at Guantanamo.

This military judge has acknowledged that the medical condition causes pain and extreme discomfort for Hadi / Nashwan, making it difficult for him to sit in a regular chair in the courtroom for extended periods. He has used a special seat in the courtroom, and has been wheeled into the courtroom in a hospital bed. Furthermore, a special cell that can fit a hospital bed has been constructed next to the courtroom, for him to use during court breaks.

His trial was scheduled to begin in February 2020. It is unclear whether it will go forward, given his health, and given that several weeks of hearings in his case were suspended during his defense counsel’s 12-week maternity leave (including cancelled sessions for June and July 2019).

What is expected to happen this week?

This week, the judge will likely deal with any issues related to Hadi’s / Nashwan’s medical condition. It is likely that the defendant will be wheeled into the courtroom on Wednesday morning, 21 August, in either a hospital bed or a modified wheelchair.

Then, the judge is scheduled to listen to defense and prosecution lawyers argue a number of motions, all of which were listed on a docket that circulated a month or two ago. These motions, which are listed below, deal with a range of issues, including defense requests for information about and access to places where Hadi / Nashwan and others were confirmed, and conflicts of interest of war court personnel.

Motions on the docket are:

  • Defense Motion to Compel Discovery of Information Related to and Access to Buildings in which the Accused or any Potential Witnesses Have Been Confined (AE 137);
  • Defense Motion to Compel Defense Examination of Accused’s Conditions of Confinement Onboard Naval Station Guantanamo Bay (AE 139);
  • Defense Motion to Compel Appointment and Funding of Defense Mitigation Specialist (AE 150);
  • Defense Motion to Compel Production of Discovery Relating to Rules of Engagement Requested in Defense 51st Supplemental Request for Discovery (AE 156);  
  • Defense Motion to Dismiss on the Basis that the Convening Authority has a Personal Interest in the Outcome of the Military Commission (AE 157);
  • Defense Motion to Dismiss because a Military Judge and Law Clerk Sought Employment with the DOD and DOJ (AE 150);  
  • Defense Motion to Compel Discovery of Information Related to Public Statements Made by RDML Ring Concerning Conditions of Confinement (AE 150); and,
  • Defense Motion for Judge Libretto to Disqualify Himself under R.M.C. 902 (AE 150).

Conclusion – What Will Happen This Week?

This coming week at Guantanamo, like all weeks at Guantanamo, is unpredictable.

We will need to wait to see how matters unfold this week.

Stay tuned to www.GitmoObserver.com for updates!

George Edwards

Professor of Law

Direct, Military Commission Observations Project (MCO)

Program in International Human Rights Law

Indiana University McKinney School of Law

www.GitmoObserver.com

www.GuantanamoBayReader.com

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Check your eligibility to travel to Guantanamo Bay to monitor hearings through Indiana’s Guantanamo Project. Click here.

Indiana University Students Travel to Guantanamo Bay Despite Trump Administration Cuba Travel Warning

U.S. Department of State travel warning for Cuba

On 29 September 2017, the United States Department of State issued an advisory that “warns U.S. citizens not to travel to Cuba”. Indiana University prohibits its students from traveling to countries for which the State Department has issued such travel warnings, unless IU grants an exemption.Screen Shot 2017-10-12 at 11.19.36 PM

On Tuesday, 4 October 2017, the IU Office of (OSAC) granted an exemption thus permitting IU students to travel to Guantanamo Bay, Cuba to continue to participate in the Military Commission Observation Project (MCOP) of the IU McKinney School of Law’s Program in International Human Rights Law.

Why the Cuba Travel Warning?

The State Department warning stated that in recent months, “numerous U.S. Embassy Havana employees have been targeted in specific attacks. These employees have suffered significant injuries as a consequence of these attacks. Affected individuals have exhibited a range of physical symptoms including ear complaints and hearing loss, dizziness, headache, fatigue, cognitive issues, and difficulty sleeping.”

The warning noted that neither the U.S. nor Cuban government has “identified the responsible party, but the Government of Cuba is responsible for taking all appropriate steps to prevent attacks on our diplomatic personnel and U.S. citizens in Cuba. Because our personnel’s safety is at risk, and we are unable to identify the source of the attacks, we believe U.S. citizens may also be at risk and warn them not to travel to Cuba.”

The warning noted that “[a]ttacks have occurred in U.S. diplomatic residences and hotels frequented by U.S. citizens.”

The warning further noted that on September 29, the U.S. “ordered the departure of nonemergency U.S. government employees and their family members to protect the safety of our personnel.”

Indiana University travel ban and exemption

The Indiana University Overseas Study Advisory Council (OSAC) must approve international activity, such as the law student Guantanamo travel, and monitors such programs. OSAC “supports the Standards of Good Practice of the Forum on Education Abroad” and “endeavors to use” those standards “as a guideline when creating, monitoring and evaluating IU programs”.resources-trident

When a travel advisory is issued for a country, OSAC requires IU student travel to cease to that country, unless OSAC grants an exemption.

The Cuba travel warning was issued on the 29th of September. On 3 and 4 October the Guantanamo project submitted to OSAC a 4-page document explaining the Guantanamo program, mentioning the distance between Havana (where the referred to medical issues were said to have happened) and Guantanamo Bay, that fact that IU students traveling to Guantanamo are confined to the U.S. military base there and have no access to the rest of Cuba, and that the U.S. Embassy in Kingston, Jamaica handles consular matters for Guantanamo Bay, and not the U.S. Embassy in Havana, followed by an 86-page supporting document. OSAC granted the exemption on Tuesday, 3 October 2017, clearing the way for IU McKinney School of Law students to travel to Guantanamo Bay, Cuba later this month.

Upcoming IU McKinney law student travel to Guantanamo Bay

 The next student scheduled to travel to Guantanamo Bay in the IU McKinney program is Ms. Sheila Willard, a third-year law student, who is scheduled for a Guantanamo mission from 14 October 2017 to 21 October 2017 to monitor pre-trial hearings in the case against the 5 alleged masterminds of the 9/11 attack on the World Trade Center and the Pentagon. The five defendants face the death penalty for a series of war crimes associated with the attack that killed almost 3,000 people on 9/11.

At Guantanamo bay, Ms. Willard will be seated in the rear of the courtroom in the observation gallery, along with other monitors, media, and victims and family members of victims of the 9/11 attacks. She will be joined by representatives from various other NGOs from around the country to observe the hearings.

Ms. Willard traveled to Guantanamo Bay once before, to monitor the case against Hadi al Iraqi, an alleged high-ranking member of Al Qaeda. She also traveled to Ft. Meade, Maryland, where she monitored the case of the 5 alleged masterminds, in the case against Khalid Shaikh Mohammed, et al., viewing the proceedings via CCTV from the Guantanamo Bay courtroom.

OSAC Requirements for travel to Guantanamo Bay

Any IU McKinney Affiliate (student, faculty, staff member, graduate) wishing to travel to Guantanamo Bay, Cuba as a representative the Military Commission Observation Project is required to sign an exemption document that among other things contains a liability waiver. All MCOP monitors are also required to have insurance (e.g., covering health / accidents), which his offered to students through the Office of International Affairs, is already provided for faculty and staff, and is easily obtainable for graduates who may not have such insurance already.

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Military Commission Observation Project at IU McKinney

 On 28 February 2014, the Pentagon granted NGO observer status to the Indiana University Program in International Human Rights (PIHRL). Since then, PIHRL created the Military Commission Observation Project (MCOP), which nominates potential observers from an interested pool of students, faculty/staff, alumni, and affiliates to travel to Guantanamo Bay, Cuba or Ft. Meade, Maryland to observe in the high-profile cases against detainees that are charged with terrorism-related offenses.

MCOP representatives may travel to Guantanamo Bay, Cuba to attend, observe, analyze, critique, and publish materials on the hearings. Travel may also be to the Ft. Meade, Maryland military base where the same Guantanamo Bay hearings may be viewed via secure video-link.

Interested in traveling to Guantanamo Bay, Cuba or to Ft. Meade, Maryland?

As mentioned, travel through the Guantanamo project is available to faculty, staff, students and graduates of the IU McKinney School of Law. Information about registration for possible travel can be found here [though dates for the last quarter of 2017 and the first half of 2018 may not yet be posted on the website].

More information about the project can be found at www.GitmoObserver.com.

Read the Gitmo Observer blog to prepare for your observation

IU affiliates who are nominated for and travel to Guantanamo or Ft. Meade to observe the hearings contribute to the Gitmo Observer blog. Affiliates post at the time of nomination and Pentagon confirmation, preparation, once the affiliate begins the process of traveling to Guantanamo, once at Guantanamo and throughout the hearings, and finally upon return to the U.S. after observation. The blog posts contain varied information that may be valuable to any person preparing to travel to Guantanamo or Ft. Meade to observe the hearings.

Guantanamo Bay Fair Trial Manual and the Know Before You Go guide for future observers

The MCOP project has made available to observers our Guantanamo Bay Fair Trial Manual, a series of manuals that will help you in better preparing for your observation. Here are some insights into what you will find in the manuals:

  • 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.

The McKinney affiliate scheduled for each the hearing will be responsible to email to all of the Pentagon-approved observers a PDF version of the Know Before You Go To Guantanamo guide prior to departure from the U.S. All observers are encouraged to read the guide as the authors are experienced in Guantanamo and Ft. Meade observation and everything that is involved in making it a fully beneficial experience to all parties involved.

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). Please send inquiries or thoughts to GitmoObserver@yahoo.com.

For more information, please write to gtmo@indiana.edu or gitmo@indiana.edu.

 

Sheila Willard (J.D. Candidate, ’18)

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

Program in International Human Rights Law

Indiana University McKinney School of Law

Guantanamo hearings begin in 9/11 case

GTMO - Paul Schilling and 3 flags

Paul Schilling at Camp Justice. The U.S. flag is flying at 1/2 mast to honor the memory of U.S. Supreme Court Associate Justice Antonin Scalia. (Photo taken 16 February 2016)

Our Guantanamo Bay tents are about 50 yards from the entrance to the war crimes courtroom complex that we walked to at 8:15 a.m. today, Tuesday, 16 February 2016.  We had to pass through airport-like security to get into the courtroom. Today’s hearings are in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon.

The Observers sit in the gallery, with a thick protective glass separating our seating area from the defendants, counsel, judge and others in the main part of the courtroom. We stare through the glass at the backs of most of those of the courtroom, facing the judge.

We can see all that happens in the courtroom, as we peer through the thick glass. But our room is soundproof, and we can only hear what’s happening in court when TV screens with speakers are turned on, hanging in front of the glass gallery wall, piping in the audio.

Different sections of the gallery are reserved for the media, NGO Observers, and victims and their families (whose section can be cordoned off by a curtain should they wish). Military personnel may also take some of the gallery seats.

After we were all seated, the 5 accused entered the courtroom.

Each of these 5 accused has a civilian legal counsel and military counsel (Judge Adjutant General (“JAG”) attorneys).  Since this is a death penalty case, the Military Commission Act requires that the accused have an attorney that has previous death penalty case experience.  Civilian counsel for these 5 defendants have death penalty experience, and they are referred to as “Learned counsel”.

Courtroom Layout

Facing the judge on the left hand side of the courtroom are 5 tables, one for each of the accused, their civilian and military counsel, an interpreter and others on the defense team.  In the front and center of the courtroom is the military judge, Judge Pohl.  Judge Pohl sits elevated on the bench with a court security officer to his right (the left front of the courtroom), the witness stand to his left (the right front of the courtroom) with the court reporters located below, in front of the judge.  A speakers’ podium sits front and center of the judge and courtroom. The prosecution sits on the right side of the courtroom.  General Mark Martins is the Chief Prosecutor for all the U.S. Military Commissions.  We was present in court today and was seated with and assisted by attorneys from the Department of Justice and the Department of Defense, interpreters and 3 JAG officers.  To the far right of the courtroom is the jury box.  Since these hearings are for pre-trial discovery motions, there is no panel present.  Military Police (“MP”) personnel are located to the far left of the courtroom, along the left wall, and are seated there after escorting the defendants into the courtroom.   The are approximately 2-3 MPs for each defendant.  Paralegals, interpreters, MPs and other court personnel are located in the courtroom and may move about freely.

My general observations

As Observers, behind the glass, one of the ways we can best observe the proceedings is by closely observing the interactions of the players.  Here are some of my observations.

  • All 5 accused wore glasses entering the court and removed them as the proceeding went on
  • Kalid Sheikh Mohammad’s beard was partly black, partly white and partly orange.  It looked like it was dyed.
  • All of the accused interacted with their attorneys.  They shook hands, smiled and appeared to listen to their attorneys.  In fact, the interaction was similar to what you would expect to see between a defendant and his attorney in a criminal trial in a regular U.S. courtroom.
  • Two of the accused, Ali Aziz Ali and Mustafa al Hawsawi, spent much of today’s short court session talking to one another.
  • I thought Judge Pohl did an excellent job maintaining courtroom order and decorum.  He set out to explain things to the accused, and apparently sought to understand any concerns raised by the accused or counsel. He appeared to ask pertinent, difficult questions.  It seemed clear to me that he was in control of the hearing and has respect of counsel on both sides.
  • The Observers are viewing the hearing in real-time, through the glass.  However, the audio is delayed 40 seconds, for security reasons we were told.  This can make for awkward viewing.  For instance, we can see the personnel in the court stand up when the Judge enters.  However, we do not hear the “all rise” command until almost a minute has passed.  It can also make it difficult to determine when someone has finished speaking.  We can see them depart the podium, but we are still hearing their final remarks on the audio feed.

Proceedings

Today’s hearing did not begin until 9:15, about 15 minutes behind schedule.  Once the Judge was seated, he took the appearance of the parties and advised the accused of certain rights that they have.  He explained that the accused had a right to be present and it was their personal choice to attend or leave.  Most of the gallery was waiting in anticipation to hear the accused speak.  Each of the accused affirmed orally that they understood their rights as explained by the judge.  As Observers, we realized this is one of the few occasions that we may have to actually hear the accused speak, since during most hearings traditionally the lawyers and the judge do the talking.  The Judge explained what motions were going to be heard and asked defense counsel if there were any issues.

One of the defendants, Walid bin-Attash, expressed his desire to dismiss his learned counsel and military counsel.  From the testimony received and the judge’s statements, it appears that bin-Attash sent a letter (in arabic) to the Judge.  When questioned about the letter, bin-Attash stated that he did not trust his attorney and wished for new counsel.  It is my understanding that his lead attorney, Cheryl Bormann has been on the case since the beginning.  bin-Attash also expressed his intent to dismiss his other counsel, Michael Schwartz.  Schwartz was his previous military attorney.  Based on the testimony of his new military attorney, US Army Major Michael Seeger and bin-Attash, Seeger has only been on the case a very short period of time.  The Judge questioned counsel regarding an attorney’s duties to his/her client.  The Judge also questioned the accused regarding his intentions and whether he wished to retain Seeger. bin-Attash also provided the court with a second hand-written letter at the hearings, expressing his desire for new counsel.

The court allowed for input from other defense counsel and the prosecution.

After about an hour and a half, the court went into recess until tomorrow.  The Judge decided to have the letters translated and he would reconsider the request to dismiss counsel tomorrow.

For now, we are scheduled for a full day of hearings tomorrow, with the total hearing time today being only about 90 minutes.

Paul Schilling, JD graduate, Indiana University McKinney School of Law

(Published by Professor George Edwards on behalf of Mr. Shilling.)

 

Arrival at Guantanamo Bay Today

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Camp Justice — Where we are staying during our week at GTMO. Photo by Catherine Lemmer, IU McKinney School of Law)

Our flight to Guantanamo Bay was delayed leaving Andrews Air Force Base. We arrived at Guantanamo after a 3 hour flight. We were processed through the arrival gates and loaded a ferry to the main post. I found it interesting that all of the victims’ families, defense counsel, prosecutors, media, court stenographers and NGOs traveled on the same flight.

 

Our group of NGO Observers is staying at Camp Justice. Camp Justice is essentially rows of Quanset hut type tents. Our tents are air conditioned, with a 6-8 small bunks. We have a refrigerator, lights and electricity in all of the tents. Bathroom (latrine) tents and shower tents are located nearby. We were given a short period of time to get settled in. We then headed to the security office to obtain our badges. Badges are required for all NGO Observers, media, and others when occupying Camp Justice. We were given a short briefing regarding some of the rules and conditions. Our cell phones will not work (phone calling cards are available). Wi-Fi is very limited and available on some hotspots on the main post. We can, however, buy internet access through an Ethernet connection. It is slow, but it works.

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One of our Camp Justice tents.

We later took a tour of the main base. And, as the highlight of the evening, we were invited to a barbeque with some of the defense counsel. When asked about the volume of filings in the case, one attorney remarked that the 9/11 hearings have over 11,000 pages of transcript and over 20,000 pages of motions. We also learned that the public transcripts are usually available online within 24 hours. It was an opportunity for us to talk to the counsel, as attorneys, and get their input on some of the questions we had.

On a sad note, we learned of the passing of Supreme Court Justice Antonin Scalia, when one of our NGO attorneys drew our attention to the CNN headline.

There are no hearings scheduled for tomorrow. Sunday is Valentine’s Day. The dining facility will host a Valentine’s Day brunch. We are scheduled to tour the lighthouse and receive a briefing from Brigadier General Martins, the Chief Prosecutor of the US Military Commissions.

I recognize that I am the eyes and ears into Guantanamo Bay and the Military Commissions for many people in Indiana and elsewhere who will not have the opportunity to visit this base. In upcoming blogs I will report more on the substance of our monitoring work, as well as my other experiences here in Cuba.

Paul Schilling

Indiana University McKinney School of Law, JD Graduate

Indiana Deputy Attorney Geberal (posting in personal capacity)

(Posted by G. Edwards on behalf of P. Schillng)

 

At Andrews Air Force Base Traveling to Guantanamo Bay

AAFB - Paul Schilling - 13 Feb 2016

Paul Schilling reading the Guantanamo Bay Fair Trial Manual, published by Indiana’s Military Commission Observation Project. The Manual, which comes in 2 Volumes, provides insights into rights and interests of all stakeholders in the Guantanamo Bay U.S. Military Commission process.

Paul Schilling is traveling to Guantanamo Bay, Cuba, today (13 February 2016) to monitor U.S. Military Commission hearings in the case against the 5 alleged masterminds of the 9/11 attacks on the World Trade Center and the Pentagon.

Schilling is representing the Military Commission Observation Project (MCOP) of the Indiana University McKinney School of Law’s Program in International Human Rights Law. I am the founding faculty director of this program, and because Paul had technical issues in posting from Andrews, I am posting a few photos on his behalf.

Schilling was selected from Indiana McKinney Law School affiliates, which includes faculty, staff, current students and alumni. Our Program has sent dozens of Affiliates to Guantanamo Bay, Cuba to monitor Military Commissions live, and to Ft. Meade, Maryland, where Affiliates can monitor hearings broadcast via a secure videolink into a theater on the Ft. Meade base.

AAFB - Air Terminal - 13 Feb 2016 - Paul Schilling

View of Andrews Air Terminal from the tarmac.

Schilling currently serves as Deputy Attorney General of Indiana, and is a veteran of Afghanistan. You can read his posts on this page:   GitmoObserver Blog. Schilling is blogging in his personal capacity and not on behalf of his employer or his law school, with his opinions being his own.

More information about the Military Commission Observations Project can be found at this link:   MCOP Link

AAFB Barracks- 13 Feb 2016 - Paul Schilling

Bunkers at Andrews Air Force Base that house Air Force One.

To download a free copy of Volume I and Volume II of the Guantanamo Bay Fair Trial Manualclick here:  Manual

George Edwards

 

 

 

Preparing to Travel to Guantanamo Bay

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U.S. Military Commissions charging defendants with war crimes are held at Camp Justice at Guantanamo Bay, Cuba. (Photo by Catherine Lemmer, Indiana University McKinney School of Law)

I am a practicing attorney with the Office of the Indiana Attorney General and an alumnus of the Indiana University McKinney School of Law. I am also a veteran of Afghanistan.  I was selected to travel to Guantanamo Bay, Cuba (“Gitmo”) to represent the  Military Commission Observer Program (“MCOP”) which is part of the law school’s Program in International Human Rights Law (“PIHRL”).  This program, which was founded by Professor George Edwards, sends law school affiliates to Guantanamo to monitor hearings in criminal cases related to a range of international crimes. My participation in this program is in my own personal capacity, and my blog posts and other comments are my own, and not of my employer or of my law school.

 

AAFB - Paul Schilling - 13 Feb 2016

Updated — Here I am at Andrews Air Force Base on Saturday, 13 February 2016, waiting for my flight to Guantanamo Bay. I’m reading the Guantanamo Bay Fair Trial Manual that Professor George Edwards developed to help Observers understand rights and interests of stakeholders, and help them as they monitor the Military Commissions

I am scheduled to monitor the hearings scheduled for February 15-19, 2016, in the case against 5 alleged perpetrators of the 9/11 attacks on the World Trade Center Towers and the Pentagon.

 

I was previously scheduled to attend hearings in the case against Hadi al Iraqi, who was allegedly a liaison between al Queda Iraq and the Taliban.  Those hearings were postponed.  Those hearings were in Gitmo, but I was going to monitor them from a remote viewing site – at Fort Meade, Maryland, where the Gitmo courtroom proceedings are simultaneously projected by secure video link.

The Role of the Observers

The MCOP sends observers to Guantanamo Bay, Cuba to monitor the commission hearings in person. Our role as observers is to attend, observe, analyze, critique and report on the proceedings.  We seek to gather information that sheds light on whether the rights of all stakeholders have been afforded to them.  A stakeholder is an individual (or organization) holding rights and/or interests in the Military Commissions.  Military Commission stakeholders include, for example, the defendants, defense counsel, the prosecution, victims and their families, judges, witnesses, the press, the international community and countries with detained citizens at Gitmo.

The MCOP has been researching international and domestic U.S. Law that governs the Military Commissions, and analyzing it in the Guantanamo Bay Fair Trial Manual.  The Manual, which is in draft form, is used by Observers and others interested in ascertaining whether a fair trial is being afforded to all stakeholders.

Background:
In preparation for my trip, I took some time to review the charges and some background research on the defendants. On September 11, 2001, 19 men hijacked 4 planes in the US. Two planes crashed into the World Trade Center towers in New York City, 1 plane crashed into the Pentagon and the fourth plane crashed in Somerset County, Pennsylvania. In all 2,921 civilians were killed as a direct result of these attacks. Al Queda, a reported terrorist organization said to be run by Usama Bin Laden (“UBL”) claimed responsibility for the attacks.

Court documents charge that al Queda planned for the 9/11 attacks for years. It was charged that in August 1996, UBL proclaimed a holy war against the US, and that Khalid Shaikh Mohammad (“KSM”) and UBL discussed hijacking commercial airliners and crashing them into buildings in the US. Preparations would have included identifying the “pilots”, obtaining visas, funding the terrorists, flight schools and simulators and casing airport security to determine the feasibility of an attack.

All 5 of the defendants in the case I am scheduled to observe were allegedly involved in the planning process and allegedly provided material support to the hijackers.

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Khalid Shaikh Mohammad

KSM and and the other co-defendants, Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hasawi are charged as having participated in various stages leading up to the 9/11 attacks.

The official charges against the defendants include the following, though it is not clear whether all the charges (e.g., the crime of conspiracy) will survive challenges by the defense:

Charges: All Defendants:
1. Conspiracy;
2. Attacking Civilians;
3. Attacking Civilian Objects;
4. Murder in Violation of the Law of War;
5. Destruction of Property in Violation of the Law of War;
6. Hijacking or Hazarding a Vessel or Aircraft;
7. Terrorism

The Military Commission Observation Program requires me to submit daily blog entries. My next blog post will be from Andrews Air Force Base, from where we are scheduled to fly to Gitmo on Saturday morning, February 13, 2016.

My next substantive blog post will likely summarize some of the motions that we are expected to hear this coming week. Also, I will report on my trip to Guantanamo Bay, noting my observations.

I recognize that I am serving as the eyes and ears of many people who will never be permitted to travel to Guantanamo Bay, Cuba. I feel a special obligation to report comprehensively, thoroughly, and accurately on behalf of those who are not as fortunate as I am to have such an opportunity.

Paul Schilling — J.D. ’10, Indiana University McKinney School of Law; Indiana Deputy Attorney General (participating and commenting in my own personal capacity and not that of my law school or my employer).

The Club No One Wants to Join

At the end of each week of the 9/11 hearings, there are a series of concluding media briefings at which the defense teams, the prosecution, and the families of the 9/11 victims speak to the members of the press who are present in Guantanamo Bay. This week the members of the media included representatives from news outlets, including among others, Associated Press, BreitBart News,  BuzzFeed, and Law DragonCarol Rosenberg of the Miami Herald was present as well and is the only reporter that has attended all of the Military Commission hearings. The NGO Observers are not allowed to attend these press briefings but are allowed to view them via a live stream in the NGO Office Lounge.

After Walter RuizJames Connell III, and David Nevin, defense attorneys, and Chief Prosecutor Brigadier General Mark Martins spoke, four of the Victims’ Family Members chose to speak to the media. It was apparent from their statements that each is on an individual journey.

Phyllis Rodriguez spoke first. Her 31-year-old son Greg died in the attacks on the World Trade Center. She started by saying she was a 9/11 victim’s family member and as such she was a member of a “club no one wants to join.” Phyllis then went on to say that she had always opposed the death penalty, but that her conviction had not been tested before 9/11.

Four days after the 9/11 attacks she and her husband Orlando Rodriguez wrote an open letter, “Not In Our Son’s Name,”calling on President Bush not to resort to a military retaliation against Afghanistan. The print version is here. As a result of the letter circulating on the internet along with several others by victims’ family members calling for non-violent solutions, they met others who held similar beliefs. From these connections, the non-profit September 11th Families for Peaceful Tomorrows was formed on February 14, 2002.

The organization’s mission is stated on its website as follows: “an organization founded by family members of those killed on September 11th who have united to turn our grief into action for peace. By developing and advocating nonviolent options and actions in the pursuit of justice, we hope to break the cycles of violence engendered by war and terrorism. Acknowledging our common experience with all people affected by violence throughout the world, we work to create a safer and more peaceful world for everyone.” (Peaceful Tomorrows website). The organization has received numerous awards, including a Nobel Peace Prize nomination in 2004.

In 2015 film maker Gayla Jamison produced and directed a documentary about the ongoing reconcilation work of Phyllis and Orlando Rodriguez. The film is entitled In Our Son’s Name.

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Phyllis Rodriguez and her daughter Julia. (Guantanamo Bay Ferry)

The press briefings are recorded and the video posted on the Military Commission site for public viewing. The December 11, 2015 briefing will be posted shortly.  The words and stories of all the Victims’ Family Members are powerful reminders of the importance of making sure that the defendants are afforded fair and just proceedings by the Military Commission.

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Sunrise at Guantanamo Bay, awaiting ferry to the base airport.

By: Catherine A. Lemmer, 9/11 Hearings, Guantanamo Bay, 11 December 2015.

9/11 Hearings Set To Proceed

Professor Catherine Lemmer at Guantanamo Bay, Cuba

Professor Catherine Lemmer at Guantanamo Bay, Cuba, December 2015

There were no open hearings today, December 7, 2015, in the 9/11 case. The hearings were closed for a 505H hearing during which the prosecution, defense teams, and judge addressed a number of evidentiary issues.

One of the on-going matters the parties discussed today was the use of female guards in the detention camps. The inmates object to the use of female guards for religious reasons. The court heard, during the open session in October 2015, extensive testimony and evidence on this issue.  Despite that the court was in open session the transcript has been significantly redacted and is now labeled: “Unclassified For Public Use.” This means that the previously available information is now classified. For example, there is less than one page of transcript for the 11:16 AM to 12:28 PM session on October 30, 2015.

GITMO transcript

gitmo transcript 2

All the transcripts are available on the Military Commission site. The unofficial word is that the female guard issue will be continued in the February 2016 hearings. Judge Pohl will hear additional classified evidence at that time. Until such time, the interim order will remain in place that prohibits female guards from interacting with the defendants for purposes of “legal activities.”  For example, transporting the defendants to attorney meetings or to court.  It is an order limited to legal matters, therefore the female guards are not prohibited from interacting with the defendants in such instances as escorting them to the recreation area or for matters other than legal.

The unofficial word is that the Military Commission will conduct four days of hearings starting tomorrow morning. At that point Judge Pohl will engage in a colloquy with each defendant regarding his right to be present in the courtroom. This colloquy occurs each time the hearings are convened.

As the NGO Observers were not able to be in the courtroom, we visited the Navel Exchange (NEX) for supplies. There was a huge Christmas display in the entrance to the NEX; many of the units decorate a Christmas tree. The Christmas tree pictured above features two local wildlife — the iguana and the banana rat.

The NGO Observers were taken on a drive up on the windmill ridge. From there you could see the entire naval station. The JTF detention centers are on the other side of the island and off-limits to the NGO Observers.

By: Catherine A. Lemmer, 7 December 2015, 9/11 Hearings, Guantanamo Bay

Enroute to Guantanamo Bay for 9/11 Hearings

I arrived at Andrews Air Force Base in the dark and am all checked in. I got my ticket and had a chance to read the Andrews Gazette while waiting for the rest of the NGO Observers to arrive.

Andrews gazette

I’ve introduced myself to the other NGO Observers as they arrived and I’ve handed out the newest version of our Guantanamo Bay Fair Trial Manual. There are seven observers this time, representing law schools, human rights and other non-profit organizations, and the private bar. I look forward to sharing conversations and learning from them this week.

Andrews Air Force Lemmer

Professor Catherine Lemmer at Andrews Air Force Base     5 December 2015

The issues before the hearing this week are of great interest — classified information, the female guard issue, the CIA interpreter issue, and the continuing conflict-of-interest issues. I was at Guantanamo Bay for the February 2015 9/11 hearings when the CIA interpreter issue stopped the hearings. I am very interested to see how that issue will be advanced.  It will also be interesting to see if the recent move by the military to open all combat positions to women will have an impact on the discussion of the female guard issue.

The chatter in the departure lounge is that the week is shaping up to be very productive.  It is sure to be an interesting and informative week.

By:  Catherine A. Lemmer, 5 December 2015, 9/11 Hearings, Guantanamo Bay

Traveling to Guantanamo Bay for Hearings Tomorrow

George Edwards & Greg Loyd - Pre-Gitmo - DC - 18 July 2015

Mr. Greg Loyd (left) & Professor in Washington, DC on the eve of Mr. Loyd’s departure for Guantanamo Bay hearings in the case against Hadi al Iraqi. Professor Edwards will monitor the same hearings at a secure location at Ft. Meade, Maryland, beginning Monday, 20 July 2015.

Greg Loyd will fly to Guantanamo Bay, Cuba to monitor hearings in the military commission case again Hadi al Iraqi. Professor George Edwards will monitor those same hearings via a secure video-link at Ft. Meade, Maryland.

Mr. Loyd, who is a graduate of the Indiana University McKinney School of Law, is representing the law school’s Military Commission Observation Project (MCOP), founded by Professor Edwards. Three Indiana students and graduates will join Professor Edwards at Ft. Meade for the hearings, that commence Monday, 20 July 2015.

Abd al Hadi al-Iraqi

Hadi al-Iraqi

Who is the defendant?

The pre-trial hearings are in the case against Hadi al Iraqi, who is an alleged high ranking member of al Qaeda. He is charged with being an al Qaeda liaison to the Taliban, to al Qaeda in Iraq, and to other affiliated groups. Professor Edwards was in the courtroom at Guantanamo Bay in the 2014 summer when Hadi al Iraqi was arraigned on these charges.

The flight to Guantanamo Bay & drive to Ft. Meade

Mr. Loyd is scheduled to report to Andrews Air Force Base on Sunday, 19 July 2015, for his flight to Guantanamo Bay. Professor Edwards and the other Indiana monitors are scheduled to drive to Ft. Meade early Monday morning for the hearings. While Mr. Loyd will be in the Guantanamo courtroom, the Ft. Meade viewers will witness the proceedings live by video.

Blogging

All Indiana monitors will be posting blog entries about their observations. They are all using the Guantanamo Bay Fair Trial Manual to help them assess whether in their opinion, all stakeholders are receiving the fair trial to which they are entitled. The defendants are entitled to a fair trial, and so too is the prosecution. Other stakeholders with rights and interests include the media, the U.S. an international public, and the victims and victims’ families.

 

 

Going to Guantanamo – Overnight at Andrews Air Force Base

Air Force H20

Outside Andrew Air Force Base from my hotel.

I flew from Indianapolis to Washington DC to a beautiful 30 degrees. My hotel for the night is just across the street from Andrews Air force Base, where I’m to report at 6:45 a.m. tomorrow for my flight to Guantanamo Bay, Cuba to monitor the case against al Nashiri, who is charged with being a mastermind of the suicide bombing of the USS Cole in Yemen that killed 17 US sailors in 2000.

On this trip, I will be joined by ten other Non-Governmental Organization (NGO) Observers, some of whom have already expressed interest in the Guantanamo Bay Fair Trial Manual, that we at the Indiana University McKinney School of Law have been researching and writing.

Flying to DC

My trip was uneventful, save for the look on all who tried to lift my carry-on luggage containing the Manuals, which at this point are in two Volumes, totaling over 400 pages. More about the Manuals later.

On my flight from Indianapolis there was an ‘interesting’ conversation going on behind me. I was sitting in front of the loudest three on this very small plane. Their conversations spanned from blue-collar job variations by state, Hoover Dam documentaries, Benghazi and then, Guantanamo! I held my breath.

Their biggest and only complaint was that US taxpayer money was paying for top-notch medical care “for those 9-11 prisoners down there in Cuba” while people here cannot afford it.

The pilot came on the intercom, and voices behind me were lowered for the remainder of the flight. I am still a little shocked that three people on that small plane going from Indiana to the East Coast would talk about Guantanamo Bay, on the eve of my first trip to that U.S. detention center on a remote Caribbean Island.

Preparing for my mission to Guantanamo Bay, Cuba

As an NGO observer, I am tasked with evaluating whether the all stakeholders are being afforded the rights and interests to which they are entitled through the Military Commission process. Yes, I will be examining rights of the defendants. Also I will examine rights of victims and their families, rights of the prosecution, rights of the press, and rights and interests of others who have a stake in the proceedings.

To help prepare for this mission, I have familiarized myself with the Guantanamo Bay Fair Trial Manual, which at this point I find to be of ‘biblical’ importance. As I mentioned, it is now in two Volumes. Volume I is the main body of the Manual, and identifies the international and domestic U.S. law that governs the Military Commissions. It provides a good idea of what a fair proceeding should look like, so that NGO Observers will have a good point of reference. It also contains a number of extensive, comprehensive “checklists” that Observers can use to give an idea of what to look for when they are observing.

Volume II contains the Appendices, which include hard copies of many important legal documents, such as parts of the Military Commission Act, Rules of Procedure, and International Documents, including parts of the Geneva Conventions.

Both Volumes have been instrumental in helping me prepare for my role as an observer. I have done background readings on blogs from other participants who have attended the hearings, as well as from the Military Commission Website and other resources. The Gitmo Observer Blog also contains Briefing Books under Research and Resources, which have been very helpful in orienting myself with the details of the hearings.

March 2 – 6 Hearings

Vaughn Ary - https://www.linkedin.com/pub/vaughn-ary/3b/644/b7

Retired Major General Vaughn Ary

This week, the al Nashiri court dealt with Unlawful Influence (AE 332, Defense Motion to Dismiss for Unlawful Influence and Denial of Due Process for Failure to Provide an Independent Judiciary). See Alleged Unlawful Influence over Guantanamo Bay Judges.  It is argued that a high ranking military official, retired Marine Major General Vaughn Ary, engaged in “unlawful influence” over the judges of the Military Commission by ordering them to relocate to Guantanamo Bay to help speed up the proceedings.

The defense argued that no military official should be able to order a Military Commission judge to take such actions, since the judges are supposed to be free from outside influence.

The Learned Counsel for al Nashiri’s made a statement about who “can be trusted to act impartially” (Pentagon scraps judges’ Guantánamo move order; 9/11 case unfrozen, Miami Herald). The order of Major General Ary was reversed at the end of this past week, after Ary testified from the Pentagon.

Motions scheduled to be argued next week while I am present as per the second amended Docketing Order are:

  • AE 334 – Defense Motion for Appropriate Relief to Allow Mr. AI Nashiri to Groom Prior to Court Sessions and Meetings with his Defense Team.
  • AE 272D – Government Motion for Reconsideration and Clarification of AE 272C- Ruling- Defense Motion for Appropriate Relief: Inquiry into the Existence of a Conflict of Interest Burdening Counsel’s Representation of the Accused Based on Ongoing Executive Branch Investigations;
  • 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 319I – Defense Motion to Continue the Evidentiary Hearings Related to AE 166 et seq and AE TI 9 Until Preliminary Matters are Resolved;
  • 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 328 – Defense Motion for a Fair Hearing on the Admissibility of Evidence as Noticed in AE 166 and AE 166A; 3 (8) AE 319F, Defense Motion to Compel Discovery Related to AE166/166A/166B and Seeking Further Appropriate Relief;
  • AE 319G – Defense Motion to Compel Witnesses to Testify at the Hearing on AE166/166A/166B/319;
  • 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).

Tomorrow (Sunday), we are scheduled to leave for Guantanamo from Andrews. I plan to post again once I cross the street and enter the base.

I look forward to meeting the other NGO observers.

Aside from the hearings, all that is ringing in my head is ‘banana rats’ – these animals that are supposedly running around pretty freely on Guantanamo Bay. They say that they have to keep the temperature in our GTMO tents very low to keep these rats out at night.

Also, I hear there is a Jamaican shack with the best food on the GTMO base!

Seriously, I am very keen on furthering the goals of the Indiana University Military Commission Observation Project, which include to attend, observe, analyze, critique and report on the Military Commissions. This is a very important project that I believe serves all stakeholders in the Military Commission process.

Avril Rua Pitt, Across the Street From the Andrews Air Force Base Entrance, 28 February 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

9/11 Hearings Misc Motions Heard

On Wednesday, February 11,  Judge Pohl called for the parties to suggest motions that could be heard outside of the 292 conflict-of-interest matter and the prior CIA black site interpreter matter (350). There was an aura that the 9/11 hearings were on life support as the prosecution and defense struggled to put motions on the table that could be argued during the remainder of this week. Mr. Walter Ruiz, Learned Counsel, proposed a number of motions that deal only with his client, Mustafa al-Hawsawi.

This morning he called to order the Military Commission to hear arguments on a variety of outstanding motions. Defendant Mr. al Baluchi chose not to attend the hearings today. As a result, the first few minutes of the proceedings dealt with an Officer of the Judge Advocate General Corp’s office testifying that he had informed Mr. al Baluchi of his rights to attend and to obtain his waiver. Typically when this happens the prosecution files a “submission of alias” because the testifying officer does not provide his name on the witness stand. Learned Counsel for Mr. al Baluchi, James Connell, noted on the record that the prosecution had not made such admission this morning.

David Nevin, Learned Counsel for Khalid Shaikh Mohammed, again went on the record to make an on the record motion (and to indicate that he will be filing a written motion) to halt all proceedings until such time as the matter of the former CIA black site interpreter issue is resolved.  Again, he was overruled.

Today’s activity focused on motions focused by Mustafa al-Hawsawi.  Mr. Walter Ruiz, Learned Counsel, argued the following motions:

  • AE192 & AE196 Motion to Seek to Disqualify Legal Adviser, Office of the Military Commission Due to the Unlawful Interference with the Professional Judgment of the Chief Defense Counsel and Detailed Learned Military Counsel. Mr. Ruiz requested that Judge Pohl go forward with an analysis of the underlying facts and law because these circumstances are representative of an instance of unlawful influence in the proceedings. The issue of unlawful influence does not resolve itself simply because those involved have left the Office of the Military Commission. Ms. Bohrmann, Learned Counsel, for Mr. Walid bin Attash, similarly urged Judge Pohl to undertake the analysis and make a ruling.
  • AE332 & AE340 Motions to compel discovery of Mr. Hawsawi’s medical records and access to medical personnel who treat Mr. Hawsawi. Mr. Ruiz requested access to medical records and medical personnel in order to judge the standard of care his client is receiving and also to help Mr. Hawsawi make medical decisions. His health has showed signs of deterioration. The prosecution challenged these motions by arguing that the medical issues are arising out of a December 2014 incident in which Mr. Hawsawi was injured while in detainment. The prosecution also stated that his medical records, which were classified, are being declassified and delivered to the defense on a rolling basis.
  •  AE303 Motions addressing conditions of confinement. Mr. Ruiz argued that the circumstances of confinement at Guantanamo Bay violate humanitarian law. He did note that there has been one change. For example, Mr. Hawsawi did not have any access to his family from 2003 through most of 2014.  In October 2014 a process was put in place to allow the defendants to record messages that will be delivered to their families. In January 2015 a process was put in place to enable the defendants to Skype with their families. His overall focus was that quality of life will equal quality of defense and that the United States has a legal duty to abide by the law. The prosecution urged Judge Pohl to stay out of the detention role and noted that the Geneva Convention does not apply to these defendants because they are “alien unprivileged enemy belligerents.”
  • AE214 & AE214A Motion to Compel Mr. Hawsawi Access to the Government of Saudi Arabia in Compliance with United States Law and Motion to Compel Prosecution to Produce Un-redacted Copies of Correspondence etc. Pertaining to Requests by Saudi Arabia to Meet With Its Citizens Held in Guantanamo Bay Mr. Ruiz urged Judge Pohl to order this discovery so that Mr. Hawsawi would have access to officials of his home state, Saudi Arabia.

At the conclusion of lengthy oral arguments, Judge Pohl asked if there was any further outstanding matters.  Again David Nevin renewed his concern that the legal proceedings were continuing in light of the 292 and 350 matters.

James Harrington, Learned Counsel for Ramzi bin al Shibh, brought up what he called a “simmering problem.” He stated that the manner in which the defendants are handcuffed/shackled has changed and that as a result the defendants are experiencing injuries.  Mr. Harrington noted that the defendants are not attending attorney-client meetings rather than suffer the injury. He asked Judge Pohl to ask the prosecution to look into the matter and see if the issue can be corrected.

The proceedings concluded with James Connell, Learned Counsel, asking Judge Pohl to issue an subpoena or other relief to provide the defense access to the former CIA black site interpreter.  Judge Pohl declined to do so and asked for a written motion.

Camp Justice Guantanamo Bay, Cuba December 2014

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)

 

40 Seconds is a Long Time & Other GTMO Musings

Monday, February 9, was my first observation experience in the Guantanamo Bay courtroom. It is difficult to describe because I am prohibited from writing much of what I would like to say about the activities in the courtroom. It is a highly controlled area. A sign informs observers that among other things, sketching and even doodling, are prohibited in the gallery. After seeing the courtroom activity, I believe even more so that the courtroom proceedings should be broadcast live on C-SPAN or other network.

Observers, along with the media, are seated in a four-row gallery behind a glass window. Upon entering the gallery you are given an assigned seat number. Media representatives, along with the court sketch artist, are assigned to the front row. Media may also watch the courtroom action on a direct feed to their office/lounge. This allows them to send immediate updates. There is a special gallery section for the family members of 9/11 victims. A curtain can be drawn to protect the victim family members from view of others in the event there is a need for privacy.

The defendants are able to see into the gallery; and at one point Khalid Sheihk Mohammed looked back and acknowledged one of his pro bono attorneys who was present in the gallery.

The gallery is on a 40-second delay. It is amazing how long 40 seconds feels! The time delay gets a bit weird when the “all rise” is given when Judge Pohl leaves and the gallery is still processing the last minute of the activity. I was standing and still scribbling notes as I watched the monitor.

There are a lot of actions that seem unnecessarily proscribed at Guantanamo Bay.  For example, the NGO Observer office/lounge is in the old airport hangar, as is the media’s office/lounge. However, we enter our NGO Observer office/lounge from a door on the outside of the building and can’t go into the hangar. During General Martins’ press briefing, the NGO Observers could not go into the hangar and watch.  We had to stay in our office/lounge and watch it via a live link.

DSCN0945 NGO Observers Media

 

 

 

 

 

 

Similarly the NGO Observers had to watch the defense team press briefing in our NGO Observer lounge/office. The feed to the NGO Observer lounge/office was terminated at the end of the hour, even though the press asked the defense teams if they would continue with the briefing. The NGO Observers later learned that the questions and answers continued for some time after the feed was terminated.

After the startling allegations against the newly assigned interpreter by Ramzi bin al Shibh, one NGO observer remarked “you just can’t make this stuff up!” That about sums up the process here at Guantanamo Bay.

 (Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)

Still Awaiting A 9/11 Update

On Monday, February 9, Judge Pohl recessed the 9/11 hearings to permit General Martins’ prosecution team and the defense teams to investigate the allegations made by the 9/11 defendant, Ramzi bin al Shibh, that he recognized the new interpreter assigned to his defense team as a worker at a CIA black site. Interestingly, his statement naming the individual and directly making reference to a CIA black site was not censored by the Courtroom Security Officer. As a result, the unofficial transcript first posted to the Military Commissions site included the interpreter’s name. Later in the afternoon a redacted unofficial transcript was posted. A number of the NGO Observers felt that the inclusion of the interpreter’s name in a public document was unwise.

General Martins asked for time to discover the facts and file “papers.”  Defense teams asked that the filings be adversarial (ie., available to the defense) rather than ex parte. In addition, defense teams asked that the interpreter be made available for interviews.

There has been a good deal of going and coming of lawyers at the courtroom.  However, no news is leaking out to the NGO Observers. It is now 6:30 pm on Tuesday and the docket does not specifically reflect any filings by the prosecution or the defense on this matter. The prosecution did file an “Unclassified Notice of  Classified Filing” earlier today. The document is not available for public review.

Although there is much speculation as to whether the 9/11 hearings will move forward, there is no news as of this time.

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay)

9/11 Hearings Halted

The 9/11 hearings at Guantanamo Bay were recessed until 9:00 am Wednesday, February 11 to give the defense and prosecution teams to investigate the defense team interpreter accused of being a CIA black site worker.

Today’s action started with a request by retiring Navy Lieutenant Commander Kevin Bogucki to resign from the defense team for Ramzi bin al Shibh.  When asked if he accepted Major Elena Wichner as new counsel, Mr. bin al Shibh stated that he could not trust the defense team interpreter sitting next to him because he recognized him as CIA black site worker that was involved in the CIA Rendition, Detention and Interrogation program.  Cheryl Bohrmann, Learned Counsel for Walid bin Attash, stated her client had informed her of the same just minutes before.

Ironically the interpreter alleged to be a CIA black site worker replaced the individual dismissed from Mr. bin al Shibh’s team who was found to be the FBI infiltrator.

After a brief recess to bring in General Martin’s prosecution team, Judge Pohl asked the prosecution and defense for a “way forward.”  General Martin’s asked for time to investigate and make filings. David Nevin, Learned Counsel for Khalid Sheikh Mohammad, requested that the Military Commission require the dismissed interpreter be held on the island and made available for interviews with the defense.

Cheryl Bohrmann inquired of Judge Pohl if General Martins’ prosecution team was the best option for the investigation of what might again be the government’s infiltration of the defense teams. She noted that her client, Mr. bin Attash, was “visibly shaken” and suggested the the Special Review Team already in place to investigate the FBI conflict-of-interest matter should be used.

Judge Pohl chose to rely on the prosecution and indicated that he didn’t intend that this matter would go through the usual three-week briefing schedule. The hearings are recessed until Wednesday, February 11.

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)

9/11 Hearings in Recess

The 9/11 hearings are in recess because defendant Ramzi bin al Shibh alleged in the courtroom that the interpreter at his defense table had been at a CIA black site. Defense counsel for Walid bin Attash, Cheryl Borhmann, then indicated that her client had informed her of the same.  Court is in recess until 10:30 am.  General Martins’ prosecution team has been called to court to deal with the issue.  His team was not in court because the Special Review Team was representing the government on the FBI conflict of interest matter.

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 9-13, 2015)

Gitmo Observer Provides NGO Observer Resource Centre

The remaining copies of the Guantanamo Bay Fair Trial Manual and other resources and supplies are set up in the NGO Observer lounge and ready for use by the NGO Observers.

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Gitmo Observer NGO Resource Centre

This trip has nine NGO Observers.  The NGO Observers represent the law schools of Duke University, Seton Hall, and Georgetown University. The other NGO Observers represent Amnesty International, National Institute for Military Justice, New York City Bar Association, Judicial Watch, and Pacific Council on International Policy.  Everyone has been uniformly impressed by the Guantanamo Bay Fair Trial Manual. Hopefully we will get some good feedback!

Earlier today the prosecutor provided the updated 9/11 court filings on cds. They also provided two dvd/cd drives for those NGO Observers whose laptops no longer have dvd/cd drives!  Technology sure has a way of complicating things on days.

 (Catherine Lemmer, Guantanamo Bay, 9/11 hearings, February 9-13, 2015)