Military Commissions

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

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

Indiana law students and faculty at Ft. Meade’s Guantanamo hearings

Ft. Meade # 1 of 4

Right to left — Mr. Tex Boonjue, Ms. Hee Jong Choi, and me. We’re standing in front of the Post Theater at Ft. Meade.

I was at Ft. Meade, Maryland today to monitor hearings in the Guantanamo Bay Military Commission case against an alleged high-ranking al Qaeda member, Hadi al Iraqi. Hadi faces war crimes charges in the court, located in a remote area of Cuba. The U.S. military broadcasts the hearings live to a Ft. Meade base movie theater (the Post Theater) via a secure video-link.

Indiana students at Ft. Meade

I was joined by two Indiana University McKinney School of Law students, both of whom have strong interests in human rights and international criminal law. They are both representatives of Indiana’s Military Commission Observation Project (MCOP).

Ms. Hee Jong Choi is a rising third year student who is an intern in Indiana’s Program in International Human Rights Law. She has been working on North Korean human rights issues, while she was based in South Korea for the first half of the summer, and while based in Washington, DC at an NGO (HRNK – The Committee for Human Rights in North Korea) for the second half of the summer.

Mr. Tex Boonjue is a rising 2nd year Indiana student, who is working for the Court of Appeals for the Armed Forces (CAAF) at the Washington, DC Naval Yard.

Fort Meade's Post Theater is screening Guantanamo Bay war crimes hearings during the day, and San Andreas in the evenings.

Fort Meade’s Post Theater is screening Guantanamo Bay war crimes hearings during the day, and San Andreas in the evenings.

Defendant’s opportunity to speak today – Conflict of interest

Today’s hearings were notable, in that the defendant had an opportunity to speak more than defendants typically speak at military commission hearings. Typically, at the beginning of a hearing week, the military judge will ask the defendant whether the defendant understands his rights. The judge lists our numerous rights, and the defendant is given a chance to answer as to his understanding of those rights. Generally, after that, the lawyers do the rest of the talking, along with the judge.

Today, an issue was presented regarding the possibility that the lawyer who represented Hadi for a year may have a conflict of interest that could have a negative impact on Hadi. The judge asked Hadi series of questions, in open court on the record, and Hadi replied. Hadi and the judge entered into a discussion about these issues.

Hearings suspended, again

Ultimately, due to questions concerning the possible conflict, the judge suspended the hearings, indefinitely.

The hearings for July 2015 had been scheduled for two weeks, beginning Monday, 20 July. The night before, this conflict issue was raised in special conference, and the judge postponed the hearings until today, Wednesday the 22nd. Today, we had about 3 hours of court time, including the time that the defendant and the judge conversed, and including pauses and a long break.

The two weeks of hearings could be over as of lunch time today.

In the meantime, many dozens of people associated with the hearings boarded a plane this past Sunday at Andrews Air Force Base, bound for 2 weeks at Guantanamo Bay. The plane may be forced to return to Andrews more than a week early, with only 3 hours of court.

At the Ft. Meade Commissary today

At the Ft. Meade Commissary today

Who else was at Ft. Meade today?

Also in the Post Theater observing today’s hearings were 7 law student interns from the Office of the Chief Prosecutor of the Military Commissions, along with one of their supervisors, Major Chris Hartley (Army JAG, International Law Advisor). Two law student interns from the Human Rights First National Security section were present, as was another gentleman who did not identify himself. A DoD contractor was there to help ensure that no one brought cell phones into the Theater. And a technician and another administrator popped in from time to time to check up on things.

It was an early lunch day at Ft. Meade.

Greg Loyd, our Indiana McKinney representative who is in Guantanamo Bay this week, reported that there is plenty to keep him and observers busy down there, even with the hearings being suspended. He, and the rest of us, are spending time working on the Guantanamo Bay Fair Trial Manual.

George Edwards – Ft. Meade, Maryland

9/11 Commissions Halted Due to Unlawful Influence

Today, February 25, 2015, Chief Judge Colonel James Pohl, U.S. Army, ordered a halt to the case against the 9/11 defendants at Guantanamo Bay with his finding that Department of Defense officials tried to unlawfully influence the military commissions judiciary.  You can read today’s ruling here on the Gitmo Observer. Judge Pohl ordered “abatement” of the case until the rule change is rescinded by the proper authority. The prosecution has five days to appeal the new order, if it chooses to do so.

Judge Pohl ruled that the actions by the Deputy Secretary of Defense, acting upon the recommendations of the Convening Authority, constitute at least the appearance of an unlawful attempt to pressure the military judge to accelerate the pace of litigation and an improper attempt to usurp judicial discretion, thereby compromising the independence of the military judge.

The ruling arises out of the December 9, 2014 memorandum of Major General Vaughn Ary, U.S.M.C. (Ret.), the “Convening Authority” in charge of the military commissions at Guantanamo, to Deputy Secretary of Defense Robert Work asking him to require military commission judges to relocate to Guantanamo Bay “to accelerate the pace of litigation.”  On January 7, 2015, the Deputy Secretary of Defense issued the rule change requested by the Major General Ary.

On January 30, defendants in the 9/11 case filed a motion to dismiss the case for unlawful influence over the military judiciary. Judge Pohl ruled on their motion today.

First Up: Motions on Severance & Conflict-of-Interest

gitmo picI am en route via Chicago and Washington D.C. to Guantanamo Bay, Cuba for the first week of the 9/11 hearings.  The hearings are scheduled to start at 9:00 am on Monday, 9 February 2015. Judge Pohl has ordered that all five defendants must be present in court.

The first issue to be addressed during this session is reconsideration of Judge Pohl’s order of August 2014 (AE312) to sever Ramzi bin al Shibh’s case from the other four 9/11 defendants. Mr. in al Shibh’s case was severed as a result of the prosecution’s request for a competency hearing for him as well as the conflict-of-interest matter arising from FBI investigation into his defense team. If this sounds familiar, it should. These same motions were scheduled for hearing but not heard when the December 2014 hearings were cancelled over the female guard issue.

The resolution of the potential conflict-of-interest matter is a complex issue that has delayed the hearings for nearly a year. In 2014, the Military Commission concluded that there was no actual or potential conflict with respect to four of the five 9/11 defense teams. The Military Commission did conclude that there may be an actual or potential conflict with respect to the legal team representing Mr. bin al Shibh. In August, Judge Pohl ordered Independent Counsel for Mr. bin al Shibh to investigate and advise him. Lt Col Julie Pitvorek, USAF was assigned as Independent Counsel for Mr. bin al Shibh. LtCol Pitvorek will be present at the February hearings, as will Mr. Harrington and Lieutenant Commander (LCDR) Bogucki, Mr. bin al Shibh’s present counsel.

In April 2014 a Special Review Team consisting of Department of Justice prosecutors was appointed to investigate the FBI’s undisclosed interviews and investigations of certain members of the 9/11 defense teams. The creation of the Special Review Team was required because General Martins’ prosecution team can not investigate the defense teams. The Special Review Team functions as the prosecution with respect to the investigation of the defense teams and whether the FBI activity created a conflict-of-interest for the defense team.  The Special Review Team was in court at the preliminary hearings in June, August, and October on behalf of the prosecution. These prosecutors will be in court for the February hearings to represent the government for the three pleadings that will be heard by Judge Pohl related to these matters.  Should these matters be resolved, the parties will move on to the many other matters scheduled for argument in the following weeks.

The matters before the Military Commission are legally and factually complex. It makes it challenging for NGO Observers tasked with observing, analyzing, and reporting on whether the military commissions are open, transparent, and providing fair trials to the defendants.  It is important that we focus on our specific role in the process. The Guantanamo Bay Fair Trial Manual is a great tool to help us do so.

The matters scheduled on the docket include:

AE 312C Defense Response to Emergency Government Motion to Reconsider AE 302 Severance Order The order severing Mr. bin al Shibh is currently in abeyance (temporarily suspended). The judge may revoke the order, sever Mr. bin al Shibh, or continue to hold it in abeyance.)

AE 292RR Prosecution Special Review Team Motion for Reconsideration of AE 292QQ (Order) (Prosecution Special Review Team seeks to have Judge Pohl reconsider his decision that there may be a potential conflict within Mr. bin al Shibh’s defense counsel.)

AE 292VV Defense Motion to Compel Discovery Related to Interference with Defense Function by the United States.  (The defense asks Judge Pohl to compel the Prosecution’s Special Review Team to provide the evidence related to the FBI’s investigations of the defense teams. )

AE 292YY Defense Motion for Appropriate Relief-Disclosure by Military Judge Whether He has Acquired Information Relating to the Case from an Undisclosed Source and the Details of the Information (The defense asks Judge Pohl to disclose what information he has about the FBI investigation that has not been provided to the defense.)

AE152 Prosecution Motion for R.M.C. 909 Hearing (The prosecution asks the Commission to establish the competency of Ramzi bin al Shibh to stand trial.)

AE 254KK Prosecution Government Motion For an Expedited Litigation Schedule to Resolve AE 254Y (The prosecution requests oral argument relating to the issue of female guards in contact positions with defendants.)

AE 331 Military Commission Judge Trial Conduct Order (The military judge ordered the government to review the Protective Order regarding classified information and sealed pleadings in light of the release of the Torture Report.)

AE 008 Defense Motion to Dismiss for Defective Referral (The defense position is that the Convening Authority did not charge the defendants properly.)

AE 031 Defense Motion to Dismiss for Unlawful Influence (The defense position is that the President of the United States put pressure on the Convening Authority to bring the case against the defendants.)

AE 192 Defense Motion to Disqualify (The defense position is that the Legal Advisor to the Convening Authority unlawfully interfered with the professional judgment of the Chief Defense Counsel and Mr. al Hawsawi’s Learned  Counsel.)

AE 196 Defense Motion to Disqualify (The defense position is that the Chief of Operations for the Convening Authority unlawfully interfered with the professional judgment of the Chief Defense Counsel and Mr. al Hawsawi’s Learned Counsel.)

AE 254 Defense Emergency Defense Motion to Permit Attorney-Client Meetings (The defense position is that JTF-GTMO is interfering with attorney-client visits.)

AE 112 Defense Motion to Compel White House and DOJ policy on Rendition, Detention, and Interrogation Program (The defense seeks to compel discovery about the policies underlying the CIA rendition, detention, and interrogation program.)

AE 114 Defense Motion to Compel Information regarding Buildings in Which Defendants May Have Been Confined (The defense asks the prosecution to produce evidence about any facility where the defendants were held.)

AE 182 Defense Motion to Possess and Resume Use of a Microsoft-Enabled Laptop Computer (The defense asks that the defendants have access to standalone computers to work on their defenses.)

AE 183 Defense Motion for Telephonic Access for Effective Assistance of Counsel (The defense asks to be able to communicate by telephone with the defendants.)

AE 195 Defense Motion to Compel Production of Communications Between Government (The defense seeks information about government involvement with the movie Zero Dark and Filmmakers of Zero Dark Thirty.)

AE 206 Defense (Mohammed) Motion to Cease Daily Intrusive Searches of Living Quarters and Person (The defense wants the prison to use less intrusive means to search for physical contraband.)

AE 036E Prosecution Motion to Clarify Order AE036D (The prosecution asks the Judge to order that the prosecution has control over all witnesses, including remote testimony.)

AE 036G Defense Motion to Compel Discovery (The defense wants the Judge to compel discovery on government policy of producing witnesses.)

AE 036H Defense Motion to Compel Witnesses (The defense wants the Judge to compel witnesses on prosecution statements regarding costs of producing witnesses.)

AE 214 Defense Motion to Compel access to Government of Saudi Arabia. (The defense requests that the Military Commission compel the Secretary of Defense to facilitate communications between Mr. Hawsawi and Saudi Arabia.)

AE 119 Defense Motion to Dismiss and to Compel a Status Determination Pursuant to Article 5 of the Geneva Conventions (The defense asserts that there is a question as to the status of the defendants under Article 5 of the Geneva Conventions and charges should be dismissed.)

AE 164 Defense Motion to Stay all Review Under 10 U.S.C. § 949-4 and to Declare 10 U.S.C. §949p-4(c) and M.C.R.E. 505(f)(3) Unconstitutional and In Violation of UCMJ and Geneva Conventions (The defense argues that the Commission’s decision to permit trial counsel to substitute, summarize, withhold, or prevent access to classified information is unconstitutional.)

AE 018W Joint Defense Motion to Amend AE 018U Privileged Written Communications Order (The defense argues that interpretations of the provisions in the written communication order are restricting attorney-client communications and should be amended to protect the rights to effective assistance of counsel and to prepare and participate in own defense.)

AE 018BB Defense (WBA) Motion to Compel Paper Discovery in Accordance with Privileged Written Communications Order (The defense requests that the Commission order the government to provide a duplicate copy of all paper discovery materials releasable to Mr. bin ‘Attash.)

AE 018MM Defense Motion to Compel Reasonable Privilege Review Team Hours of Operation (The defense requests that the Commission order the Privilege Review Team (PRT) to maintain reasonable weekend hours at all times; or at a minimum, maintain weekend hours for processing materials immediately prior and to and following hearings, or when there are approved attorney-client visits.)

AE 161 Defense (AAA) Motion to Require the Government to Comply with MCRE 506 Regarding redaction of Unclassified Discovery (The defense argues the Commission should order the prosecution to produce the complete, unredacted copies of certain unclassified discovery documents under Military Commissions Rule of  Evidence 506.)

AE 190 Defense (AAA) Motion to Compel Production of Information Relating to Statements Made by Mr. al Baluchi or Potential Witnesses at a Detention Facility Classified Motion AE 191 Defense (AAA) Motion to Compel Production of Information  Classified Motion AE 194 Defense (AAA) Motion to Compel Discovery of Mr. al Baluchi’s Statements (The defense requests that the military judge compel production of all records of all statements made by Mr. al Baluchi in the government’s possession

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

A Student’s Perspective on the USS Cole Trial- May 27, 2014- Kristi McMains

Military commissions have a lot in common with what we know as a regular trial that takes place in the US Court system. What differentiates a military commission is that a military commission is a court of law traditionally used to try law of war and related offenses. An alien unprivileged enemy belligerent who has engaged in hostilities, or who has purposefully and materially supported hostilities against the United States, its coalition partners or was a part of al Qaeda, is subject to trial by military commission under the Military Commissions Act of 2009.

I have read the brief of the Amici Curiae prepared by retired military admirals and generals in support of the defense council who is in opposition to the military commission as the forum to try this case. An amici curiae opinion is an opinion on the case or an issue in the case that is written from an interested third party who is not directly involved in the litigation. There are two points in this brief that particularly struck me: that the attack on the USS Cole occurred at a time where there was no “war”, and secondly that allowing this “retroactive” dating of when a time of war existed would lead to endangerment of American soldiers lives were they to be tried in a military court abroad. I find that these two issues are inherently linked to one another, and I must respectfully, yet strongly, disagree with the assertions from the defense.

“Terrorism” as it is known today is a fairly new concept. I asked my parents if they were worried about “terrorists” and “terror attacks” when they were growing up, and their answers both surprised and saddened me. According to them, a “terrorist”, as they used the term growing up, was an unruly child, one whose actions were unpredictable and wild. Today, kids as young as grade school know a “terrorist” to be someone who has the intent to scare and potentially harm a large group of people. Frankly, the events of 9/11 had to change the definition of terrorism and, subsequently, the rules and regulations that are linked to this concept.

I would argue that we are in a theatre of war whenever we are attacked in connection with an act of terror. The USS Cole attack was undeniably an terrorist attack, one designed to be targeted directly at some of our sailors stationed abroad. Although the President and Congress had not specifically declared a war, in my mind there is no question that attacking a US military ship with a bomb constitutes an act of war. It is for this reason that I disagree with the defense and their arguments that the military commission is inappropriate because it did not occur in a time of war.

The second point that struck me was the assertion that allowing this trial to be held in a military commission would put our own soldiers at risk for trials abroad. One of the greatest qualities of our nation is that we want to treat everyone in a dignified and respectful manner. We are cognizant of the consequences of our actions and want to do our best to secure our soldiers’ safety and security. However, what fails to be mentioned is that not all countries are following the American example. If an American was captured by al Qaeda, the American would not receive increased protection because if his nationality. Rather, the chances that he will be treated with brutality are immensely high.

In their briefing, the defense council described some instances during the second world war and the reign of Hitler. At that time, the American military made sure that German prisoners were treated to the same rations as American soldiers. General Dwight D. Eisenhower said that he did “not want to give Hitler the excuse or justification for treating our soldiers more harshly than he was already doing.” Sadly, the circumstances are not comparable to the situation that is at hand today. Our current conflict is not against a unified armed force that is led by a single commander; we are against individuals who are united under a common enemy, America.

A military commission is a way to let these individuals, who have been accused of war crimes against the United States and our compatriots, a chance to be treated with a level of respect and humanity that would likely not be reciprocated if the roles were reversed. Trying these cases in American federal courts would hinder the administrations of justice because the nature of the beast of war and terror. A military commission affords these individuals a fair trial, complete with zealous advocacy and opportunity. It is the correct forum for this case and is sufficient in ensuring that justice will be administered.

 

A Student’s Perspective on the USS Cole Trial – Kristi McMains- May 25, 2014

I am delighted to be chosen to travel to Ft. Meade, Maryland in order to observe the hearing of Al Nashiri and his involvement in the bombing of the USS Cole. This is truly a once in a lifetime experience and as a third-year law student who has an equal fascination with law, policy, national security and human rights, there is no greater opportunity than this.

I remember sitting in my sixth grade math classroom after a break in ISTEP testing on Tuesday, September 11, 2001. Our school guidance counselor came in, gestured for our teacher and proceeded to have a heated whispered conversation. Our teacher then told us that the school was canceling ISTEP for the day, and started showing us a funny video online. We were all confused. A few minutes later, I was in the hallway when one of the social studies teachers ran by with tears in her eyes. It was not until the lunch period when a fellow student announced to our table that, “The United States had just been bombed.” I can still remember the feeling that washed over me at that moment. I felt as though everything slowed down, and a panic came upon me like none I had experienced before. I eventually learned the truth about what happened that day. In fact, sealed up in a shoebox in my parents attic, I took every copy of any newspaper I could find from September 12, 2001, and taped it in the box with a sign on it that says, “Not to be opened until 2021.”

That day changed my life. It changed the nature of our country as a whole. America had arguably not been attacked on home soil since near the birth of our nation. Pearl Harbor was the only other attack that was similar to this one, but it happened far off our coast, not in one of the biggest cities in our nation. One of the main reasons that I chose to attend law school is the fascination that I have always held for the law and our nation’s security. After 9/11, I started becoming more attuned to the emotions that other countries and citizens of those countries had towards America. I became fascinated with everything relating to national security and the law, whether it be news stories, novels, or speaking with everyone and anyone I could who had different experiences dealing in this unique brand of international affairs.

I had the wonderful opportunity to work out in Washington, D.C. for a summer as a Congressional aide to our now Indiana Governor Mike Pence. I learned to give tours of the Capitol where I talked about the plaque that sits on the far end of the rotunda honoring Flight 93 and the crewmembers and passengers who stepped up and saved the Capitol from being struck by the last plane. I toured the Pentagon and saw exactly where the plane struck the ground, bounced up, then slid into the side of the building where some of our nation’s most protected meetings occur. One thing that particularly struck me about the Pentagon was that the section where the plane hit was under construction; the number of people in that section was a fraction of the normal workforce and from that, lives were spared. Through my studies of aviation law I was able to learn about that day from the men and women working in the air traffic control tower here in Indianapolis. Our city became one of the main hubs for grounding planes, and these individuals had the task of grounding the second largest number of planes of any airport in the nation. They spoke of how they were frantically searching the radars for the hijacked planes and how eerie it was when their radar only showed around twelve planes that were strictly being monitored or flown by members of our armed forces.

That day helped solidify my future in law. The American justice system fascinates me in the sense that even these men, who have been recommended for prosecution for war crimes, get fair and honest trials. The USS Cole attack predated 9/11 by only eleven months; it was the first real glimpse into the mass casualty mindset that these individuals have against Americans and our way of life. Having the unique opportunity to observe the trial of the alleged mastermind of the attack will be enlightening and exciting.

I am also eager to observe the military commission process and how it differs from litigation in the US courts. I currently work at the trial law firm of Cline Farrell Christie & Lee and have already learned an incredible amount about our trial system here at home. I hope to highlight some of the commonalities and differences amongst the two in my postings and also explore why and if the military commission is appropriate for the issue at hand.

I leave in two days for my trip to Maryland. I have packed my bags, loaded my iPad with the incredible briefing binder that was put together by the leaders of this program, and am looking forward to my time at the base!