Author: caseyseaton

Post Hearing Report

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.

The Seeds of Principle, the Growth of Diplomacy

By Casey Seaton*, October 15, 2016 (pre-Ft. Meade).

Diplomacy is defined, most basically, as a noun meaning something along the lines of governmentally-representative exchanges between nations. Those exchanges can take the form of trade deals, arbitral negotiations, peace talks, hostage releases, money transfers, media management, land rights discussions, immigration quota standards, natural resource use provisioning, joint relief efforts, and joint war efforts . . . just about anything but actually being at war against one another. That act of going to war against one another marks some failure of diplomacy. But if law school has taught me anything—besides that the answer is always “it depends”—it’s that when a problem arises, so too does an opportunity.

So what in the world does any of that have to do with Gitmo? Well, I’ll tell ya. Gitmo is, of course, a United States Government prison facility, to put it in the plainest terms. As such, it is an extension of the U.S. Government. Given its secretive and consequently legendary yet infamous existence, it has become much more than a simple government prison facility. It has become much more than an alleged terrorist holding site. And it has become much more than a political chess piece inside American politics. Guantanamo Bay Detention Camp has become a metaphor for the bedrock of America.

Gitmo tests America’s resolve for upholding some of our most core principles of life, liberty, fairness, and justice. It takes persons who are despised on a national and even international scale and, ideally anyway, makes certain that such persons are treated humanely and fairly until their culpability is judged. If we as Americans fail in our own courtroom to uphold the principles that we base our daily lives on, our societal structure on, then how can we be trusted, how can our word be honored diplomatically when we promise to conduct affairs outside of the courtroom based on these principles? In other words, if we fail to honor our core values in court, in a setting arguably representing the most direct connection to law in its reddest form, how then are we to be trusted to honor those same values elsewhere?

Right, right, right. That’s some great idealism and all, but still, what’s the link between diplomacy and Gitmo?

It’s this. War itself may not be diplomacy, but the failed diplomatic efforts that lead to war do produce diplomatic effects. The prisoners that end up being taken from one land and brought to and held in another create a situation that, at its core, tests the principles upon which diplomatic relations so often stand.

Therefore, Gitmo is a test and a bridge. It tests our resolve to stick to our core principles in what could easily transform into an emotionally-driven, biased-laden environment. It is a bridge between (a) honoring those principles in some of the toughest situations here at home wherein we are our only critics and (b) consistently applying them abroad through the promises diplomats promote. The way we act in the privacy of our own home—albeit a home on a separate island—should be the way we act outside of it as well.

This Guantanamo Bay Military Commission Observation Project provides a means of ensuring that our collective conduct is adequate here at home. It allows curious-minded, legally-trained people like me to be the public eye on the trials. The problem of war, terror, and the trials stemming therefrom then becomes an opportunity for practicing and spreading American ideals.

Conversely, some view this Project as a concession to terrorists. That is a poor view for one central reason; we, as observers, aren’t charged with rooting for persons accused of attacking our countrymen.   No. Instead, we are charged with making sure our ideals aren’t only stated but are consistently put into practice in each and every case, no matter how high the emotional stakes. Without domestic diplomatic missions, of sorts, like the one I am about to make to Ft. Meade, a mission diplomatic in the sense that I am an envoy seeking to safeguard the best of American principles, we lose the benefit of being able to show other nations, ‘hey, we do stand by our promises even when we seemingly will have little perceptible gain.’

Of course, having yet to visit Ft. Meade or Guantanamo to see the conduct of these trials, this is all merely speculative, quixotic prose. My main goal then in viewing the al-Nashiri trial next week, a trial the basis of which IU McKinney student and career military officer David Frangos expertly discussed in his October 10th post on this blog, is to: 1. See if my views linking Gitmo to diplomacy actually do have some practical resonance, and 2. Be an active participant watchdog for American principles. These two goals are of course intertwined, and my participation in the latter has a chance of ensuring the former. I say this because I aspire to be a U.S. diplomat (a.k.a. foreign service officer), which explains the prevalence of diplomacy focuses throughout this piece. As a diplomat (eventually), I can hopefully use what I take from goal number 2 and apply it to confirm the success of goal number 1.  I want to see the seeds of U.S. ideology sprout into U.S. diplomatic doctrine.

*Casey is a May 2016 IU McKinney Law grad who successfully completed the July 2016 Indiana Bar Exam and was recently sworn in to practice law at the state level here in Indiana and at the federal level in the Southern District of Indiana. (The proximity of my writing this piece and my having heard inspiring, romantic, starry-eyed speeches from the state’s top justices should help explain the surplus of idealism in this blog post.) Casey currently works for the downtown Indianapolis firm of Doninger Tuohy & Bailey, LLP and is involved with an assortment of Indianapolis-based organizations focused on local to international exchange.