October 21, 2016
By: Casey Seaton
The al-Nashiri hearings I was scheduled to observe were to take place October 17-19. . . . I managed to catch the October 18th. Missing the 19th was part of my scheduled plan as I needed to return to work in Indianapolis, but missing the 17th was an unscheduled but not unanticipated scheduling change.
As many know, hearings are subject to change; that is even more so the case for the hearings of this commission. Instead of starting at 0900, the first day of the hearing was rescheduled for a start time of 1300. The scheduling change was due to some sort of setback between al-Nashiri and his lawyer. A change of counsel was mentioned, though I cannot confirm that is what caused the delay.
At any rate, since everyone at Ft. Meade–seemingly everyone but the individual in charge of streaming the video feed–was in the dark about the rescheduling, I naturally made sure to show up plenty early for the 0900 start time I then still believed was in effect. Being early, I had plenty time to take a brief self-guided tour of the base; I got to see it amid a beautiful, crisp Maryland morning, and I even came across a street named for one of Indiana University’s most revered alumni:
The lack of knowledge about the rescheduling was not much of an issue though as it gave Prof. Edwards and myself time to tour the military base and take, I believe at last count, half a billion photos in front of various Ft. Meade related signs. A few samples are shown here:
The afternoon start time proved to be ineffective at Ft. Meade as well. Though the hearing had commenced down in Cuba, the audio and video feeds were faulty at our location. Word is that this was the first time in seven years of doing this at Ft. Meade that technical difficulties carried the day. We later found out that severe storms temporarily damaged the transmitter down in Cuba, causing the malfunction. Fortunately, IU McKinney student-observer David Frangos was live at the Gitmo site and fully filled us in on all the relevant details.
Tuesday, October 18th proved to be a much smoother ride. The hearing began promptly at 0900 as scheduled. The morning hours of the hearing were filled with oral argument by military members representing both the government and the defendant. As a slight aside, the military member representing the defense during this session was female, a fact relevant to the balance of employment versus religious rights issues that occasionally creep into these settings. Though attempting to keep a neutral perspective on the entire process and each involved individual’s rights and stakes, I admittedly feel strongly biased here in favor of the woman, which is why this is as far into this issue as I will delve given the context and point of these observation positions.
Now back to our regularly scheduled report: Each side questioned witness Michael Quinn, a higher ranking military man brought, remotely, as the defendant’s witness but seemingly favoring the government’s story. Mr. Quinn was testifying as a witness for the defense as they attempted to make their case that the military commission set up to oversee and overhear these terrorism trials was flawed, perhaps legally unsupported, and untrustworthy. On direct examination, Mr. Quinn seemed to be getting cross examined, and on cross he seemed to be on direct. It was a bit odd, but for the purpose for which the defense called him to testify, perhaps the facts just lent themselves towards supporting the government’s argument. It did seem as though the defense was really stretching and contorting their argument beyond what evidence of foul play they had, but perhaps that was just a combination of my lack of understanding and the defense counsel’s lack of clarity.
After a lunch break, the afternoon portion of the day’s hearing began. This section of the hearing was much more understandable and thus easier to follow, perhaps because of the background knowledge that came as a result of observing the morning session. This session was dominated by Mr. Kammen, a high-profile defense attorney from Indianapolis, and Mr. Martin, a highly decorated military officer, representing, as he put it, “a very large client in the U.S. government.” We did catch two glimpses of the defendant, but we never heard him speak. He was present only for the afternoon session this day because he had been feeling ill and opted not to attend the morning session.
The afternoon was dominated by what swelled to become passionate colloquy about a couple of emails, only it wasn’t about the emails, only it was. . . . Apparently, the government and the judiciary, not the presiding judge but someone else in his camp, exchanged a few emails without letting defense counsel know about the exchanges. In some circumstances, this is allowed, such as when it is clear that the exchanges were simply regarding housekeeping, administrative issues. In all other cases, such ex parte exchanges are considered prejudicial foul play and are highly disfavored by the unincluded party. Such exchanges as the latter also cast a vast shadow of distrust and abuse of discretion over the entire process, since both the prosecution and the judiciary are actually government-related creatures.
This high level of mistrust and skepticism was what made this seemingly non-issue into such a majorly contentious point. The defense wanted the judge to order the government to turn over the communications for the sake of transparency and integrity and to counter the history of “iffiness” about the trustworthiness of the commission that has pervaded the years of litigation involved with these terrorism charges. The government’s interest in keeping the communications out of the hands of the defense was to avoid setting a precedent of having to disclose what they considered work product or confidential communications over to the defense. Essentially, it was the public policy versus the slippery slope argument. The judge did not rule on this issue the day I was there.
The judge was put in a precarious position, but he did a good job of transparently explaining his thought process in weighing the evidence and the effect of his decision-making. He repeatedly emphasized, essentially, how much time is wasted year-in-and-year-out over such seemingly trivial issues. I believe this is why he kept pushing the defense to trust that the communications in dispute were in fact trivial. Still, the defense did a good job of using reason to express why he felt obligated to distrust this approach, however trustworthy he actually thought the judge.
The judge clearly wanted to take a pragmatic approach and get the ball rolling on these hearings, largely for the sake of the families of victims involved, among all others who have committed so much time to these cases, whether voluntarily or not. I appreciated how the judge pushed each side by using the best, strongest, toughest arguments of one side against the other. He would appear strongly in favor of the side adverse to the person he was questioning thereby really making each side’s counsel clarify their points and make their case in the most persuasive ways possible. He would then express that he is still wholly undecided and will really need to think this through. I thought it was a very effective approach.
I am glad to have participated in the hearing observation program, but I do have two major criticisms about the hearings and this process as a whole. From my vantage point, the long drawn out nature of these cases (over 16 years thus far for this case) is extremely excessive. I mean, this case is not even close to going to trial. This process needs to be revamped for efficiency going forward for the sake of all parties involved. Further the entire process needs to be revamped for the sake of economical soundness. From what I understand, defense counsel are flown to and from their places of residency, for Mr. Kammen that would be Indianapolis, IN, to either DC or Cuba (oftentimes on more or less empty military planes for the Cuba trips) each and every time something as minimal as a legal paperwork filing happens. I would imagine that is only the tip of the iceberg when it comes to such waste too, unfortunately. I understand that the reason for such apparent waste is security, but in today’s technological age and with our country’s know-how, we can definitely do better, be more efficient, and provide fairer trials beneficial to all involved.