Trial

Detour from USS Cole – Official Tour of Ft. Meade – Kristi McMains – 29 May 2014

What to do at Ft. Meade when Observers are barred from hearings?

The Judge in the al Nashiri case determined that hearings for the remainder of the week were to be classified. NGO Observers, like those of us representing the IU McKinney Military Commission Observation Project,  are not permitted to monitor classified hearings.

After receiving word that the hearings were done for the week for us, I scrambled to catch a flight back to Indianapolis on Thursday (what would have been the second day of hearings for this week). I was hopeful that my (more…)

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!