Military Commissions

Final Preparations for Departure to Guantanamo Bay, Cuba

Introduction

Me in Spring 2022

I am scheduled to travel to Guantanamo Bay, Cuba as a nominee of the Military Commission Observation Project (MCOP), which is part of Indiana University McKinney School of Law’s Program in International Human Rights Law. (Read more about the MCOP here).

I am a student at IU McKinney Law, and I am eligible to be nominated for Guantanamo travel, as are all IU McKinney students, faculty, staff, and alumni of Indiana University McKinney School of Law (IU McKinney) – because the Pentagon granted special “Observer” status to this IU McKinney Program.

Here you can read more about me, IU McKinney Professor George Edwards who founded this Guantanamo project, how I came to be involved in the Guantanamo project, the selection / nomination process, all the paper I had to fill out to participate, and the hearings I am scheduled to monitor at Guantanamo the week of 23 – 30 July 2022 (against Mr. al Nashiri, who allegedly plotted the 2000 bombing of the USS Cole off the coast of Yemen).

Meeting with the Director and Acting Deputy Director

On 28 June 2022, Professor Edwards and MCOP Acting Deputy Director Professor Charles Dunlap held a zoom meeting with me and several other people scheduled to travel to Guantanamo Bay in the month of August. During that meeting, the Directors stressed the importance of complying with requirements of the “Guantanamo Agreement Checklist” that was provided to me and the other travelers by Professor Edwards. The Checklist requires filling out paperwork on time, communicating with the Directors in a timely manner, responding to emails, informing the Indiana University Office of International Affairs of our travel plans, getting health insurance for foreign travel, immediately informing the Directors of any correspondence coming from the Pentagon, and many other requirements.

My first blog post

MCOP travelers to Guantanamo post about their experiences on a blog on this website:  Gitmo Observer – www.GitmoObserver.com. We post about the selection and nomination process, preparing for travel to Guantanamo Bay, experiences during the hearings, and impressions after returning to the United States.

Professor Edwards asked me to share my initial draft blog post with his edits and comments with the August travelers via email so that they could have an idea of what an informative first post could look like. After the meeting, I sent the blog post with the edits to the other travelers.

On 30th June 2022, I received an invite from WordPress to post to the blog on GitomoObserver.com. The next day, 1st July, I posted to the blog for the first time.

Booking my flight from Indiana to DC

The first round of paperwork I received from the Pentagon informed that travelers to Guantanamo Bay will leave from Joint Base Andrews near Washington, DC.

I began tracking flights from Indianapolis International Airport to Reagan National Airport in Washington, DC the first week of July in preparation for leaving the last week of 23-30 July 2022. On 5th July, I sent a prospective flight itinerary to the Project Director, Professor Edwards, which is required according to the Guantanamo Agreement Checklist. That same day, Professor Edwards approved the prospective itinerary, and I purchased the flight, round trip. I planned my flights to arrive in Washington, DC early on 22nd July, the day before my scheduled departure from Joint Base Andrews on 23rd July, and to return to Indianapolis from DC on 31st July, the day after returning to DC from Guantanamo Bay. I inquired to Professors Edwards and Dunlap regarding a potential scholarship to help cover the costs of flights and travel to and from Washington, DC, as that expense had in the past been the responsibility of the individual observers. I was informed that the parameters of the scholarship are still in development, and that I would be informed of the scholarship’s availability when that information is available.

Forms for the Indiana University Office of International Affairs

Having confirmed my flight itinerary to Washington, DC and back to Indianapolis, I uploaded a PDF screen shot of the itinerary including times, airline (American Airlines in my case), and flight numbers to the iAbroad system. iAbroad is the system that the Indiana University Office of International Affairs uses to send and compile necessary paperwork and forms required for students to travel internationally. By that time, I had already completed an initial set of forms that I had submitted through iAbroad, which were sent to me in the days immediately following the day I informed the Office of International Affairs that I would be participating in the MCOP at Guantanamo Bay.

After the first set of forms is complete, iAbroad sends a second set of forms. The flight itinerary was the last requirement in the second set of documents iAbroad requires. However, I waited to submit that last section of the documents because I did not yet have confirmation of the flights from Joint Base Andrews to Guantanamo Bay and back. I did not want to submit the section with incomplete information, but when I checked iAbroad the following week (11 July), my forms were all submitted and the itinerary section was no longer available to edit. This concerned me, as I hadn’t included information about the flights to and from Guantanamo Bay.

On 14th July, I drove to Indiana University-Purdue University Indianapolis (IUPUI) campus, which is where IU McKinney is located, for two reasons; to pick up a physical copy of the GeoBlue Insurance Card that I was informed the first week of July would be waiting for me at the Study Abroad Office, and to talk to someone at the Study Abroad Office or the Office of International Affairs about my problems uploading Guantanamo flight information to iAbroad. I received my copy of the GeoBlue Insurance (it isn’t necessary to have the physical card but given the option I felt safer having it with me) and met with Ms. Stephanie Leslie from the Office of International Affairs. She confirmed that my Washington, DC flight information had been properly uploaded and asked me to email her the information that I currently had about the Guantanamo Bay flights. I emailed her the flight estimates that were included in the first email from the Pentagon back in May and told her that I would keep her updated with future information as it comes my way. Ms. Leslie said that would be fine. She asked if I was ready and prepared with everything else, and I told her that I was except for the requirement to have a PCR covid test within 72 hours of arrival at Joint Base Andrews. She suggested I ask the University if they were still conducting covid tests. More on trying to get a PCR Covid test below.

Correspondence with Previous Travelers

On Wednesday 23rd July I went to the IU McKinney School of Law to meet with Ms. Madison Sanneman, who works for the Law School and recently traveled to Guantanamo (read her blog posts here). I have had an email correspondence going with Madison since early June; she has been an amazingly helpful resource in my preparations for Guantanamo. I met with her that Wednesday to go over some last-minute questions I had about the facilities at Guantanamo, proper clothes to bring, anything I may be overlooking, what to pack, what the court proceedings were like, what the food was like, and her overall impressions of the trip. Again, Madison provided me with wonderful information that sincerely helped relieve some of the stress and anxiety I was feeling about the trip.

During June and July 2022, I also had an ongoing text correspondence with Mr. Collier O’Connor (read his blog posts here). I had initially reached out to Collier to thank him for his detailed posts on the Gitmo Observer blog, and followed up with several questions as the weeks went on. He always replied to me in a timely fashion and with helpful information.

It is a requirement of the Guantanamo Agreement Checklist to contact previous travelers. Aside from that requirement, I would highly suggest that it is essential to correspond with and meet in person if possible previous travelers in order to have a smooth and complete preparation for travel to Guantanamo Bay.

Getting a Covid PCR Test

The Pentagon requires a negative PCR covid test to be presented at Joint Base Andrews before boarding the plane to Guantanamo Bay. The test must have been administered within 72 hours of boarding the plane. On Wednesday the 20th July, I received the final instructions from the Pentagon including flight details stating that we would be departing Joint Base Andrews bound for Guantanamo Bay at approximately 10:20 AM Saturday 23rd July and as the Covid test results needed to be printed and brought with, I would need the results well before that time.

Although Indiana University had been administering covid-19 tests to students for free during the pandemic, it turns out that Indiana University was (and is) no longer administering Covid tests to students. I do not know when they stopped, or why. However, I had to look outside school to find a testing facility. I scheduled to take a test at CVS Pharmacy in Indianapolis (the Beech Grove location) which said on its website that PCR test results are typically returned within 1-2 days of testing.

I was very worried about taking a Covid test and then having the Guantanamo flight leave later than I was anticipating, so I made the decision to get tested closer to my date of departure to be sure that my test would be within 72 hours of boarding the plane. That was a mistake. I got my Covid test at CVS Pharmacy on Thursday 21st July at 11:50 AM, approximately 46 hours before I was scheduled to board the plane bound for Guantanamo Bay at Joint Base Andrews, Saturday 23rd July at 10:00 AM.

However, the test at CVS was self-administered and they do not send the tests straight to the lab – I was instructed to place the test in a drop box on the side of the CVS building to be picked up at a later point in time. The pharmacy tech at the window told me that test results are typically returned within 2-4 days. That made me very anxious, as that time frame would mean there was a strong possibility that I would not get my covid test results back until I was already scheduled to be on a plane to Guantanamo.

I scrambled to try and get another PCR covid test that would get me results at a quicker time. I tried Methodist Hospital, but they, and all IU medical facilities, would not administer a Covid PCR test for travel without an order from a doctor. I called my doctor’s office, but they would not end up getting back to me until Friday July 22nd (with the very unhelpful information that the doctor would not provide an order for a PCR test for travel purposes). I found a private lab facility, GenePace, that would administer a PCR test and guarantee the results by 6:00 PM the next day (which would be Friday the 22nd, giving me enough time to get the results printed to take to Joint Base Andrews on Saturday the 23rd). The test cost $119.00 and I had to drive to Carmel to get it. It was not a pleasant experience. Now that Federal funds for Covid testing seemed to have dried up, it is apparently difficult to get a PCR test with quick results for travel without paying for them or waiting on a pharmacy like CVS or Walgreens.

In hindsight, I should have asked previous travelers when the best time to get tested was, or I should have voiced my concerns to Professor Edwards or Professor Dunlap about a possible delay in the flight schedule from Joint Base Andrews and what that would mean for the 72 hour testing window. Future travelers should ask questions of the Directors or previous travelers if they have concerns.

For the record, my $119 GenePace test was emailed to me with a timestamp at 5:05 PM on Friday 22nd July, and my free CVS test (they may charge $25 to my insurance company, but I am not sure yet) in an e-mail time-stamped 9:19 PM on Friday 22nd July.

The Manuals

Packing and Building my Binder

After running around trying to get Covid tested for a large part of my Thursday, I started to pack my bags. I received a phone call the afternoon of Thursday the 21st July from a Pentagon official. She said it was her job that day to contact travelers bound for Guantanamo on our flight 2 days later to make sure they have everything in order. She also provided me with contact information for the person that would pick me up from the Visitor Center at Joint Base Andrews when I arrived at 6:00 a.m. Saturday. I confirmed that I had all of the documents that I needed except for the pending Covid test result. I thanked her for the information.

I added my printed documents to the binder I put together for the checklist and Fair Trial Manualand Know before you Go manual. I made sure my passport and covid vaccine card were tucked away safely in my backpack. I packed and unpacked and repacked my clothes several times. I booked a hotel room at the Quality Inn across the street from Joint Base Andrews. At about 11:00 PM I set my alarm for 3:30 AM and went to sleep.

A Day in Washington, DC

A screenshot of the SmarTrip App I used to easily ride the Metro in DC

My wife gave me a ride to Indianapolis International Airport early in the morning on Friday 22nd July; I arrived at approximately 4:05 AM for my American Airlines flight scheduled to leave at 6:22 a.m. I passed through security, and reached my gate by approximately 4:35 AM, even with TSA pulling me to the side, making me go through the body scanner, and patting me down. I boarded the plane for DC at 5:55 AM, and we took off on schedule at 6:22 AM, arriving in DC at 8:00 AM. We had to wait for an open gate until about 8:15 AM.

I downloaded the DC Metro SmarTrip card to my Apple Wallet and loaded it with $10.00. My iPhone actually prompted me to do this when I stepped off the plane and turned off airplane mode on my phone. I did not know if downloading that app was a useful or appropriate thing to do, so I simply googled if I could use SmarTrip on Apple Wallet to use the Metro, and the answer was definitively “yes.” With the app downloaded, you can just load money directly from a checking account and tap your phone on the pad to open the fare gates to get to the train platforms.

Google Maps told me which lines to take. I posted on this blog a map of the lines.

The D.C. Metro is very simple to use, and there are plenty of people around and security guards and signage to point you in the right direction if you get confused. I took the Metro to L’Enfant Plaza, which is near the center of DC where all of the Metro lines intersect, then walked 7 minutes to a location I had booked to hold my luggage for a small fee for the day. I booked it through Vertoe.com, and it cost a little over $7.00 to have my bag securely held while I explored DC for the day.

A map of the DC Metro. I took the Green Line to the last stop, Branch Ave., before calling a Lyft to take me the rest of the way to the hotel.

After dropping off my bag at approximately 9:45 AM, I walked around the outside of the Capitol Building and the Supreme Court, and through the US Botanical Gardens and the National Gallery of Art Sculpture Garden and explored inside the National Museum of Natural History. The Gardens and the Museum are free to enter and are located near the National Mall.

I also wandered around adjoining neighborhoods talking to my wife on the phone and searching out food. I ate at a delicious hole in the wall called Burrito Brothers at around 12:00 PM. I spent the remainder of my afternoon walking around the National Mall, visiting the Washington Monument, World War II Memorial, Lincoln Memorial, and Reflecting Pool.

Around 3:30 PM I took the Metro from the Smithsonian station to L’Enfant Plaza, then walked back to the location where my luggage was being held and picked up my bag. I then walked back to L’Enfant Plaza and took the train to the farthest south station, the Branch Ave. Station. From there I ordered a Lyft to take me the rest of the way to my hotel, which is directly across the street from the Joint Base Andrews Visitor Center. It was about a 10 -minute Lyft ride and cost $22.79, including tip. I checked into the hotel at approximately 4:00 PM.

A Short Stay at the Hotel

I received my PCR covid test back in an e-mail from GenePace time-stamped 5:05 PM. My Covid test results came back negative. I asked the hotel front desk clerk to please print three copies of the results for me, and she did. After that I walked to a Hispanic Grocery store called La Colonia and bought some food for dinner that night and breakfast the next morning. I got plenty to eat for just over $9.00.

I chose to stay at the Quality Inn across the street from the base because I did not want to have to deal with the stress of relying on a taxi/Uber/Lyft early in the morning and risk being late to meet the escort. The room cost $118. The website says breakfast is complimentary, but the dining room has been closed since Covid. The room was nice and clean with a desk and free Wi-Fi. The reviews on Google for the Quality Inn are not great, but I have no complaints. The front desk staff was very courteous and helpful.

Getting to Joint Base Andrews in the morning

Tomorrow, I will plan to walk over to Joint Base Andrews to arrive at the visitors center by 6:30 AM to be picked up by my escort. Google maps shows that it will only be a 7 minute walk from the front desk of the Quality Inn where I’m staying to the front door of the Visitors Center.

My next blog post will cover checking in at Joint Base Andrews, the flight to Guantanamo, and my first day at Guantanamo Bay.

Timothy Morgan

J.D. Candidate 2025

NGO Observer, Military Commission Observation Project (MCOP)

Program in International Human Rights Law (PIHRL)

Indiana University McKinney School of Law

Day 3 at Guantanamo Bay, Cuba; Radio GTMO; Beach; Q & A With Defense of 9/11 Defendant “AAA” (Monday, 7 March 2022)

I arrived at Guantanamo Bay 3 days ago to monitor U.S. Military Commissions, but so far, the hearings have been delayed / postponed until Wednesday, 9 March. Because of the delays, the other 5 observers and I have been doing other things during the time that the pre-trial hearings would have been taking place.

This morning I woke up early to go on a run with two of the other NGO observers. The three of us ran about 2.25 miles around the Camp Justice area, along a beach-front road that goes by one of the most beautiful beaches at Guantanamo Bay, Cuba, Glass Beach (described later in this post).

After the run, I showered in the shower facilities provided at Camp Justice (photos from a previous blog post) and then ate breakfast with the other 5 observers at the Galley. Because there were no pre-trial hearings today, the other 5 NGO observers and I, with the help of our escorts, planned the following itinerary for the day:

  • A “windshield tour” (driving tour) of Guantanamo Bay. Our escort drove us down the main roads of Naval Station Guantanamo Bay and drove us through some of the different housing neighborhoods. I did not photograph the houses during this driving tour.
  • A visit to the local radio station (Radio GTMO, described more later in this blog post)
  • Snorkeling at Glass Beach (described more later in this blog post),
  • A Question and Answer session with members of the al Baluchi (“AAA” aka “Triple A”) defense team and with the Chief Defense Counsel (described more later in this blog post).

Radio GTMO

The outside of the Radio GTMO building.

Radio GTMO is a radio station that broadcasts in English on the NSGB (Naval Station Guantanamo Bay). Radio GTMO was established in 1940 and is run by military personnel. The station houses one of the largest military collections of vinyl records. According to our tour guide, the vinyl collection is worth approximately $1 million and was acquired over the years that it has been in operation when special military base vinyl records were produced in order to create the library of music that the DJs were able to broadcast.

The vinyl record collection at Radio GTMO, estimated to be worth over $1 million.

During the tour, the tour guide, a member of the military wearing civilian clothing (I did not ask which branch the guide served in) showed us 6 NGO observers the broadcast room (pictured), a small recording studio (not pictured), and the vinyl collection of Radio GTMO (pictured). At the end of the tour, we were taken to the souvenir section of the radio station, where a variety of T-Shirts, coffee mugs, and other small souvenirs are sold. I purchased a T-shirt for my son and a coffee mug for my wife, both of which contain the text “Rockin in Fidel’s Backyard.”

The DJ at Radio GTMO is live on the air in the studio as the other NGOs and I receive a tour of the rest of the station.

Glass Beach

After our tour of Radio GTMO, our escort took us to get lunch. After lunch, our escort drove us 6 NGO observers to Glass Beach, one of the beaches at Guantanamo Bay, Cuba. Our escort told us that Glass Beach got its name because of the large amounts of beach glass that can be found there.

Glass Beach is sandier than other beaches in Guantanamo Bay, Cuba, and green, brown, and clear beach glass can be found all over the beach.

Us 6 NGO observers snorkeled at Glass Beach and saw some amazing fish, colorful rock formations, and coral. When I set off from Indianapolis last Friday, 4 March, I did not expect to spend today snorkeling. I thought I would be observing the pre-trial hearings that were originally scheduled to start today. It feels a bit strange to be in “vacation mode” today, but at least all of us NGO observers were able to schedule a meeting with members of the “AAA” defense team for later today.

When we finished snorkeling at Glass Beach, our escort took us back to Camp Justice where we showered and got ready for our on-the-record meeting with members of the “AAA” defense team at 4:00 PM.

Meeting the Defense

The “AAA” defense team had invited us 6 NGO observers to a barbeque dinner and informal meeting yesterday, Sunday, 6 March (described in a previous blog post). At the end of the dinner, we got contact information for one of the defense attorneys, and asked to schedule a more formal meeting to discuss some of the issues that are expected to be argued during the pre-trial hearings this week. Earlier today, a member of the defense team reached out to one of the other NGO observers to formally schedule a meeting today, 7 March 2022 at 4:00 PM.

Inside the NGO Resource Center where our meeting with the “AAA” Defense Team took place earlier today. This tent has also been set up as a place for NGO observers to work. However, the other NGO observers and I mostly worked elsewhere because the wifi connection was not strong enough to reach the NGO Resource Center.

The Q & A meeting with the defense team took place in the NGO Resource Center in Camp Justice. The meeting consisted of all six NGO observers asking questions, and six members of the defense (three military team members, and three civilians) answering our questions. Questions ranged from broad questions about the 9/11 case generally, to more specific questions about the motions on the docket for the upcoming pre-trial hearings. Below is a selection of the questions and answers that stood out the most to me.

Questions and answers have been paraphrased and are not direct quotes.

Q: What is the role of the Chief Defense Counsel?

A: The Chief Defense Counsel, now General Thompson, does not represent any specific client, but instead acts as a resource for each of the defense teams that represent each of the defendants at Guantanamo Bay being charged. The Chief Defense Counsel helps to manage resources and funds necessary for the effective defense of the defendants.

Q: Will the pre-trial hearings still begin on Wednesday, 9 March, 2022? (The hearings were originally scheduled to begin today, 7 March, 2022. However, on Friday, 4 March, I was informed that the hearings had been postponed until Wednesday, 9 March.)

A: The start of the pre-trial hearings is still somewhat in question. The judge has indicated that the pre-trial hearings will still begin on Wednesday. There is a possible scenario where judge McCall holds abridged hearings instead.  Abridged hearings would mean that the hearings are only in session for a few hours that day, instead of having a full day of hearings, which could last around 8 hours.

Q: What is the difference between the Convening Authority and the Judge in the Military Commission trial?

A: The Convening Authority has a kind of governor and prosecutor authority combined together. The judge listens to the oral argument and has a similar authority to a judge in a US federal court. (I later went online to read more about the Convening Authority on the Office of Military Commissions website: https://www.mc.mil/aboutus/organizationoverview.aspx)

Q: What kind of treatment does the defense want Mr. al Baluchi to receive?

A: The defendant wants to receive medical treatment that is similar to the medical treatment given to individuals who have received Traumatic Brain Injuries (TBI). There is a treatment plan that the defense would like to be implemented by the treating doctor for the 9/11 defendants. However, this treatment plan has usually not been implemented by the doctor on-site.

Q: What is the defense argument about the “meaningful separation” between detention at the CIA black sites, and detention at Camp 7? What does the prosecution define as “meaningful separation?” (The 5 men were held in CIA black sites and subjected to enhanced interrogation techniques. While at these black sites, these men made statements. In 2006, the 5 men were moved to Guantanamo. They were interrogated and made statements.)

A: The defense argues that the so-called Enhanced Interrogation (torture) of the defendants that began at the CIA black sites, in effect, continued once the defendants were transferred from the black sites to Guantanamo Bay. The defense argues that, taken as a whole, there was a continuing course of conduct in the interrogation of the defendants, such that the interrogation/torture of the defendants at the CIA black sites has tainted any confessions/admissions/statements made by the defendants after being transferred to Guantanamo Bay cannot be used in the trial, because the effect of the interrogation/torture was so extensive that the statements cannot be reliable and should be considered as coerced statements.

According to the defense, the prosecution defines “meaningful separation” as a change in time, place, and questioner. The prosecution thus argues that statements made by the defendants after they were transferred to Guantanamo Bay can be used in the trial because the statements were made in a different time, place, and with a different questioner than any statements from the CIA black sites.

Q: What is the defense and prosecution argument about when hostilities began between the United States and Al Qaeda?

A: According to the defense, the prosecution argues that hostilities began in 1996 when Osama bin Laden released a statement declaring the United States an enemy.

The defense said that they disagree the prosecution, and that hostilities did not begin until 7 October 2001, when President George W. Bush announced the beginning of strikes against Al Qaeda camps (https://georgewbush-whitehouse.archives.gov/news/releases/2001/10/20011007-8.html).

Q: Why does defining when the beginning of hostilities was matter for this case?

A: According to the defense, this matters because whether or not there was an armed conflict at the time of the 9/11 attacks has an effect on whether or not a military commission is the appropriate place to try the defendants, as opposed to a civilian criminal court.

End-of-Day Thoughts

As I write up my thoughts from today, I am thinking about how many issues which, on the surface, appear simple, are still being argued in pre-trial hearings to the court. For example, the court has still not determined when hostilities began between the United States and Al Qaeda. And while the date when hostilities began may seem to be insignificant at first glance, this determination may in fact have a huge impact on the whole legitimacy of even using the Military Commissions as the proper venue for trying the defendants.

I am glad that I was able to meet with the defense team for “AAA.” However, I would like to meet with defense counsel for other defendants. I would also like to meet with the prosecution. The other NGO observers and I are working with our escort contacts to try to arrange more meetings this week. Hopefully we will be able to set up meetings with other defense teams and the prosecution.

Collier O’Connor 

J.D. Candidate, 2022

NGO Observer, Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

Day 2 at Guantanamo Bay, Cuba; Relaxation; Fun; and Work Meeting with the Defense Team of “AAA” – Who is Charged with Helping Plot the 9/11 Attacks on the Pentagon and World Trade Center (Sunday, 6 March 2022)
Our tent had four beds, each in a “room” cordoned off, creating semi-privacy. This is a photo of one of the empty rooms in the tent where I am staying at Camp Justice.

I arrived at Guantanamo Bay, Cuba, yesterday, Saturday, 5 March 2022, and last night was my first night sleeping in my home for the next week, the newly constructed tents in Guantanamo’s “Camp Justice”.

I am here to monitor pre-trial hearings in the U.S. Military Commissions case against 5 men charged with planning the 9/11 attacks. And I will share more about that aspect of my mission later in this blog.

But first, I will share about my accommodations here at Guantanamo, and how I spent my Sunday –

There are four beds in my tent, that I shared with 1 other male NGO (non-governmental organization) observer.

We were told that these new tents replaced tents that NGOs and others had used for years, and that the old ones were not sturdy, not as comfortable, and were kept incredibly cold to keep out the local wildlife, mainly iguanas and banana rats. However, it seems as though the newly constructed tents are able to keep the animals out without having to keep the temperature uncomfortably cold. I am thankful for that.

My bed was comfortable, the temperature inside our tent was very comfortable (the thermostat is set at 70 degrees F.), and I slept well and woke up feeling refreshed after my long day of travel yesterday. (You can read about my travel from Joint Base Andrews, in Washington, D.C., to Guantanamo Bay, Cuba here).

(In a future post, I will include a more detailed description of the tents and more photos of them.)

This is another empty room in the tent where I am staying at Guantanamo’s Camp Justice.

The pre-trial hearings

Originally, thepre-trial hearings for 5 men accused of plotting the 9/11 attacks on the World Trade Center and Pentagon were scheduled to begin on Monday, 7 March 2022, at 9:00 a.m. However, we were told on Friday, before departing for Guantanamo Bay, Cuba from Joint Base Andresw, that the hearing are currently scheduled to begin on Wednesday, 9 March 2022 at 9:00 AM. We were told that the delay was caused by additional ex parte hearings between the judge and legal counsel. We were not told of the substance of these ex parte meetings.

The air conditioning tubes, trash can, and fire extinguisher at the front of the tent where I am staying at Camp Justice.

A little later in this blog I will share more about the substance of motions that the prosecution and defense are scheduled to argued before presiding Judge McCall.

Because the hearings are not scheduled to start until Wednesday, the 5 other NGO representatives and I do not feel as pressured to spend our Sunday preparing for court, so we set out at a more leisurely pace.

Sunday Morning in Guantanamo

This morning I woke up around 7:00 AM, having slept comfortably for about 7 hours. The tent I slept in was quite nice for a tent, and I slept well.

As I woke up and started getting ready for breakfast at the base Galley, I could not help but think of my proximity to the Courtroom 2 facility that is set up to hold the pre-trial hearings and trials for the 5 men accused of platting the 9/11 attacks. The fence surrounding the courtroom is very close to my tent – the Camp Justice flags are just next to the fence, and the tents are near the Camp Justice flags.

It was a strange feeling to be so close to this Courtroom and to wake up feeling so refreshed and excited. I almost feel as though my excitement is misplaced or inappropriate given the context in which I am here — to monitor one of the most significant legal proceedings in the history of the United States criminal justice system

The 5 other NGOs representatives and I had breakfast at the Galley. A photo of all of us at Andrews before our Guantanamo flight can be found here [link].

For breakfast I had a fresh, made-to-order omelet and a bowl of fruit. I also enjoyed a hot cup of coffee. Breakfast at the Galley is cheap, only $3.85.

After breakfast, our escort drove us to Girl Scout Beach, one of the beaches close to Camp Justice that is picturesque in a way that almost made me forget that I was not just on a Caribbean vacation. We all walked around the narrow, stony beach for a while, and then our escort drove us further down a deserted road to the Guantanamo Lighthouse Museum, not far from Girl Scout Beach.

This sign at Girl Scout Beach showed the beach map and beach rules.
The stairs going down to Girl Scout Beach. The water in the photo is Guantanamo Bay.

Guantanamo Bay Lighthouse Museum

The Guantanamo Bay Lighthouse Museum is incredibly interesting. A Navy officer who served as a museum tour guide gave us a tour of the museum. The museum details the long history of the United States’ presence in Guantanamo Bay. Museum exhibits describe how at the end of the 19th century the United States helped Cuba rid the area of the Spanish, the 1903 lease between the United States and Cuba allowing the United States to establish a military presence, and the renewed lease in 1936 which reaffirmed the lease terms which forms the legal basis for allowing the United States to continue to operate Naval Station Guantanamo Bay.

Me in front of the lighthouse at the Lighthouse Museum

After we toured the Lighthouse Museum, our escort drove us back to the Galley for lunch.

The other NGOs and I then went to the local dive shop to rent some gear to go snorkeling during later in the afternoon. We returned to Girl Scout Beach and snorkeled for a few hours, This was the first time I had ever snorkeled, and the variety of fish and coral I saw was incredible in Guantanamo Bay, just a few feet off the shore of the beach, in water that was only about 5-7 feet deep.

After we snorkeled, we returned to Camp Justice to get ready for our dinner and meeting with members of the defense team of one of the 5 accused 9/11 defendants. At that dinner, the other NGO representatives and I hoped to learn more about the issues and motions that are on the docket for this week’s pre-trial hearings.

Meeting the Defense Team for Mr. al Baluchi (“AAA”)

Around 6:00 PM, our escort drove us to an outdoor, covered campsite, overlooking one of the Guantanamo beaches — the location of the BBQ dinner meeting with the defense team. Apparently, during each week of hearings in the 9/11 case, the defense team for one of the defendants – Mr. Amir al Baluchi (also known as “AAA” or “Triple A”) – holds a BBQ for NGO and media representatives either the night that the plane arrives from Andrews, or the next night.

Tonight, the defense team had prepared a full meal for us, which included hamburgers, veggie burgers, several delicious salads and sides, and drinks.

We began with introductions – with the 6 of us NGO representatives meeting defense team lawyers, paralegals and others. They gave us a packet of documents briefly to explain the motions that are on the docket order for the next few weeks. The documents also contained a vocabulary list of words used in Military Commissions that we are likely to hear in the upcoming pre-trial hearings [I discovered that the Guantanamo Bay Fair Trial Manual: Excerpts contains a much more extensive vocabulary list – I had distributed copies of this Manual to all the NGOs while we were at Andrews yesterday.]

According to the packet and explanations from the defense, there are four types of motions that are on the docket to be discussed in the pre-trial hearings this week. These four main categories are:

1) “The CIA’s Rendition, Detention, and Interrogation Program” (which I understand to be about the black sites);

2) “The circumstances and conditions of confinement after the high value detainee (HVD) transfer to Guantanamo in 2006”;

3) “Discovery regarding the existence of hostilities between the United States and Al Qaeda”; and

4) “Form of discovery.”

Additionally, the packet listed two full pages of motions, with citations to the specific motion numbers, that are on the docket order and are planned to be discussed.

Final Thoughts

I have just arrived back from the meeting with the defense as I sit in my tent in Camp Justice and write my thoughts in my journal, which I will later type up and post as a blog post here (gitmoobserver.com). It was so interesting to hear directly from the defense attorneys who have been working on the 9/11 defense team for so many years. I am very excited to hear the arguments that will be made in the upcoming pre-trial hearings, especially the arguments regarding when the existence of hostilities between the United States and Al Qaeda began.

Collier O’Connor 

J.D. Candidate (2022)

NGO Observer, Military Commission Observation Project (MCOP)

Program in International Human Rights Law

Indiana University McKinney School of Law

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.

Screen Shot 2017-10-12 at 11.18.29 PM

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!