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IU McKinney students observe trial proceedings at Guantanamo Bay

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gitmo-cole-15col.jpg The USS Cole after it was attacked by suicide bombers in October 2000 in Yemen. (Photo courtesy of United States Marine Corps)

Sitting in a hotel room, preparing to watch a video cast of a hearing with Abd al-Rahim al-Nashiri, one of the alleged masterminds behind the bombing of the USS Cole, Whitney Coffin considered the process of using military commissions to try suspected terrorists.

“Before I actually see the hearing, my pre-impression is this is the best way to do it,” Coffin, a 2014 graduate of Indiana University Robert H. McKinney School of Law, said. “Some push to put this in federal courts, but what state is going to want an accused terrorist in their state? It’s a military commission. I think it’s necessary to have (the commissions) in Cuba where it has always been in Guantanamo Bay.”
 

 

riley-patricia1.jpg Riley

Indiana Court of Appeals Judge Patricia Riley holds a very different opinion. After she returned from a week in Guantanamo where she observed other hearings for al-Nashiri, she struggled to describe what she witnessed.

“When people hear that I’ve been there, they ask, ‘What’s it like? What happened?’” Riley said. “All I’ve been able to say is, ‘it’s disturbing.’”

The differing views reflect the questions, confusion and anger surrounding the court proceedings at Guantanamo Bay. The United States is navigating new territory judicially as well as emotionally as it attempts to figure out how to try these detainees. They are individuals who do not fit the traditional definitions of soldiers, and they are accused of committing acts of terrorism that do not adhere to the rules of conventional warfare.

As Coffin pointed out, “Guantanamo Bay is such a gray area.”

Shining a light into the grayness is the U.S. Military Commission Observation Project at IU McKinney School of Law. Students, faculty, staff and alumni are joining organizations to watch the hearings and blog about their thoughts and impressions.


edwards-george.jpg Edwards

The continuing project is part of the law school’s Program in International Human Rights Law founded by IU McKinney Professor George Edwards. In February the program was awarded nongovernmental organization observer status by the Pentagon’s Convening Authority for Guantanamo Bay U.S. Military Commissions. Other groups that have observer status include the American Bar Association, the American Civil Liberties Union and Amnesty International.

“I did it for the school. I did it for the students. I did it for the promotion and protection of human rights, generally,” Edwards said of his decision to have the program apply for observer status.

Letting the world know

In particular, Edwards said, the observation program fit well with PIHRL’s teaching, research and service responsibilities in the area of international human rights law. A key component of the IU McKinney observation project is that the participants will share their experiences with the ongoing military commission with others.

Recent blog entries from the IU McKinney participants provide colorful details about every part of the process – from what they packed and how they traveled to the observation site, to descriptions of courtrooms and summaries of the arguments presented by the prosecutors and defense attorneys.

Third-year IU McKinney student Kristi McMains wrote about her surprise that the defendant, al-Nashiri, looked like any man walking down the street. He was clean-shaven with a head of dark hair, and during the proceeding he was “leaning back in his chair, yawning and looking sort of nonchalant about what was happening around him.”

Participants in the Military Commission Observation Project are sent either to Fort Meade in Maryland where they watch a video feed of the hearing being conducted at Guantanamo Bay or to Guantanamo Bay itself to witness the proceedings in person.

The IU McKinney students who apply to observe typically have an interest in national security law and counterterrorism. In their blog entries and conversations, they are generally supportive of the military commission system, maintaining the defendants are getting a fair trial.

Students and graduates prepare for the observations by studying the military commission process. Prior to spending a week in Guantanamo Bay, Riley read extensively about the detention center and the detainees. She also talked to Indiana attorney Richard Kammen, who is the lead defense counsel for al-Nashiri.

“I wanted to be a witness,” Riley said of her reason for participating. “I really think that we’re going to be on the wrong side of history on this issue so I wanted to watch it for myself and try to understand legally how this could be happening.”

Open, clear and informed mind

The observation project is not the first time IU McKinney has been involved with the military commissions. Under Edwards’ direction, PIHRL did legal work in 2003 and 2004 on behalf of the defense of 800 detainees then being held at Guantanamo Bay. Again in 2007 and 2008, the program provided some assistance for Omar Khadr, a Canadian detainee.

In addition, Edwards was selected as an expert witness for the trial of David Hicks, the Australian detainee who was the first person convicted in a U.S. military commission since World War II.

Edwards said the work done for the defense is not reflective of any bias on the part of his program. The defense counsel simply called first, he said, and if the prosecution had reached out, the program might have done work for that side.

The neutrality extends to the observation project. Edwards said he seeks to attend, observe, analyze, critique and report.

“I’m interested in helping to ensure the right to a fair trial is provided for all stakeholders,” he said. “The stakeholders are more than just the defendants. The stakeholders’ interest includes the prosecutors who represent society and victims. I’m interested in the right for all stakeholders to have a full and fair proceeding.”

The observers, Edwards said, can bring the global community into Guantanamo by going to the hearings with an open mind, a clear mind and an informed mind.

Observing the hearings is demanding work done under tight security that is unusual and unfamiliar for many individuals who participate.

At Guantanamo Bay, the observers were escorted from their tents to a pre-fabricated building where the courtroom is located, Riley said. They walked through a security screening, much like those at airports, at the end of which a young soldier stood behind a podium and wrote each observer’s name in an old-fashioned ledger book.

Inside, the observers were assigned seats in the courtroom gallery which is separated from the judge and attorneys by two panes of glass. They could see what was happening through the glass, but the audio comes from the large monitors which show a video of the proceedings with a 40-second delay.

At Fort Meade, the observers see the same video feed. It is shown in a large movie theater but, as in Guantanamo, the participants are not allowed to bring anything other than pen and paper into the room.

Jeffrey Kerner, a 2002 graduate of IU McKinney, described his experience at Fort Meade as sitting in the 100-year-old theater next to a 75-year-old usher. Recounting the experience, he, too, raised questions about public access, wondering why the proceedings are not streamed over the Internet allowing him to watch the hearings on his computer from home.

The trial of al-Nashiri has yet to start. Hearings being conducted now are going over the various motions filed by the defense and the prosecution.

And that caused additional concern for Kerner, who worried about the pace of the proceedings. He said bright people are on both sides, but the process is getting bogged down in multiple motions and hearings. He sees danger that the process could continue without end.•

Read more about other  Hoosiers' involvement with the proceedings at Guantanamo Bay, including the Indiana lawyer representing Abd al-Rahim al-Nashiri.

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  • guantanamera
    Yo soy un hombre sincero De donde crece la palma, Y antes de morirme quiero Echar mis versos del alma.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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