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Hoosiers play integral roles in historic military commissions

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The words Indianapolis attorney Richard Kammen used to describe the trials taking place at Guantanamo Bay are jarring – “legally grotesque situation,” “huge stain on American justice,” “secret expedient rigged justice.”

Then he noted the situation of alleged terrorists being put on trial for acts of terrorism and murder is not black and white. There is enormous heartbreak on the side of the defendants and their families as well as on the side of the victims and their families.

Still, the military commissions – a hybrid system which combines elements from federal and military courts that is being used to try the accused terrorists – have long raised concerns about fairness and due process.

“No one could look at what’s going on in these commissions and conclude that they’re anything other than secret, truncated, expedient justice that has only one goal and that is not to seek the truth but to ensure that these people are convicted and executed,” Kammen said.

A nationally known death penalty defense lawyer, Kammen, of Kammen & Moudy, is lead attorney on the defense team of Abd al-Rahim al-Nashiri, identified by the U.S. government as the alleged mastermind behind the 2000 bombing of the USS Cole which killed 17 crew members and wounded 39 others. The Saudi is being held in Guantanamo Bay and tried under the military commissions system where, if he is found guilty, he will face the death penalty.

The military commissions established in 2001 by the Bush administration were intended to try enemy combatants suspected of terrorism. Five years later, the Supreme Court of the United States upended the process by ruling in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that the military commissions violated the Uniform Code of Military Justice and the Geneva Conventions.
 

gitmo-coin-15col.jpg Indiana Justice Steven David holds a challenge coin he helped design while working at Guantanamo Bay as chief defense counsel. (IL Photo/ Marilyn Odendahl)

When the Supreme Court issued its opinion, Indiana Justice Steven David was at Guantanamo Bay serving as the interim staff judge advocate. (At that time, David was a Boone Circuit judge who had been called to active duty.) He pulled the decision from the fax machine and began reading to determine whether the SCOTUS ruling meant the detainees had to be released.

The detainees stayed, but the trials were put on hold until Congress created the Military Commissions Act of 2009 which gave the defendants some rights such as the right to attend their own trials.

Subsequently, David was promoted to chief defense counsel and put in charge of an office that ballooned from 15 people managing fewer than five cases to more than 100 people handling 25-plus cases. His primary responsibility was hiring and training civilian defense attorneys to represent the detainees.

He compared the creation of the hybrid system at Guantanamo to building a railroad as the train was running. David did not help craft the military commissions nor make any decisions regarding how they would function.

At that time, he remembered, the nation was struggling with distinguishing which detainees were merely soldiers and which were masterminds. The country was wrestling with how to treat the different detainees. Yet, he conceded that many believed the defendants could be tried in federal courts.

“Occasionally, I would say we could get a faster, fairer trial in Indiana, but that didn’t go very far,” David said.

Kammen agreed, saying the federal courts could handle the trials of the Guantanamo detainees just as the courts handled the trial of Oklahoma City bomber Timothy McVeigh. Kammen fears if the military commissions are deemed to be successful, they could easily be expanded to try American citizens.

Asked about the differences between defending someone at Guantanamo with someone in Indiana, he paused, let out a breath and muttered to himself, “Boy, where do you begin?”

al-Nashiri was captured in 2002 and held for four years in a CIA black site. Kammen said the government has admitted that al-Nashiri was physically, psychologically and sexually tortured during that time, and he sees an undercurrent of this case as the government’s attempt to keep secret what occurred in those ghost detention centers.

A complicating factor in the al-Nashiri prosecution is the amount of information that has been classified and how the government keeps this information from public view. Every time Kammen leaves Guantanamo, his notes are sealed and put into a high-security computer which means whenever he wants to review those notes, he has to travel to Washington, D.C., to access the computer.

Even pulling a court filing requires wading through multiple layers of secrecy and bureaucracy. To review a six-page motion, Kammen had to fly, again, to Washington. Then to talk about it with opposing counsel, he had to meet the military lawyer in a sensitive compartmented information facility.

On top of this, the defense team is not permitted to discuss the classified information with their client.

Kammen next highlighted hearsay rules as an example of how frustrating the process is at Guantanamo. Rather than calling all the witnesses the FBI interviewed during its investigation of the Cole bombing, the military commission is going to allow the federal agents to take the stand and read the 77 statements from the 66 witnesses.

One of al-Nashiri’s original attorneys, Nancy Hollander, attorney at Freedman Boyd Hollander Goldberg Urias & Ward P.A. in New Mexico, asked Kammen to join the defense team once her client was charged with the death penalty.

She echoed the criticism of the proceedings, calling them scary and a place where American justice does not exist.

“I think our job is to do the very best we can and to do everything we can to save (al-Nashiri’s) life and to show this court is a sham,” Hollander said.

Kammen sees the defense as being powerless in this process, so his goal is to be the voice of truth. The microphone and court reporter are creating a record which scholars 20 or 30 years from now will be able to review and draw conclusions.

“Ideally, history will judge that we were the ones who were speaking the truth to the power in all of this,” Kammen said.

One of the court reporters creating the transcripts is James Connor, president of Connor Reporting in Indiana. The reporters work in a separate room, watching the proceedings on a video feed that has a 40-second delay to allow the judge to cut any classified information that comes out in court.

The hearings begin at 9 a.m. and usually conclude at 5 p.m. There is a break for lunch as well as an afternoon recess to allow the defendants to place their prayer rugs and pray. The final transcripts are completed within two hours after the hearings close each day.

“I think this is such a different process from our normal trial procedures, and once completed and examined, in hindsight, many lessons will be taken away from this whole process,” Connor said.

When people look back and examine these proceedings, David hopes the focus will be on things like trial strategy and newly discovered evidence rather than the fundamental system itself. The current challenge, he said, is ensuring the military commissions are as credible as they can possibly be.

“That’s where I wish everybody would focus their discussion on, how do we make this credible, how do we make it more credible and how do we get on the other side of this so that we can get through this,” David said. “That’s the challenge.”•

Read more about the U.S. Military Commission Observation Project at IU McKinney School of Law, in which students, faculty and alumni will watch the hearings and blog about their impressions.

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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