AL-KASSAR v. BUREAU OF PRISONS et al.

Filing 269

ORDER DIRECTING PLAINTIFF'S PRESENCE AT TRIAL BY VIDEO - Mr. al-Kassar will participate in the bench trial remotely by video. The Court will issue separate orders to ensure his presence and anticipates that the United States will facilitate his participation as stated in the affidavit of Kathy Hill. (SEE ORDER.) Copy sent to plaintiff via US mail. Signed by Judge James Patrick Hanlon on 2/1/2023.(TPS)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
MONZER AL-KASSAR,

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Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

No. 2:18-cv-00086-JPH-MKK

ORDER DIRECTING PLAINTIFF'S PRESENCE AT TRIAL BY VIDEO
This case is set for a bench trial starting on March 6, 2023. The Court
previously directed the parties to state their positions regarding whether Mr. alKassar, who is currently housed at the United States Penitentiary in Marion,
Illinois ("USP Marion"), should participate in person or by video. Counsel for Mr.
al-Kassar argues for Mr. al-Kassar to be able to appear in person while counsel
for the United States argues that he should appear by video. Dkt. 265.
The Court's evaluation of this issue is guided by Perotti v. Quinones, 790
F.3d 712 (7th Cir. 2015), where the Seventh Circuit identified several factors that
a district court must consider, including: (1) the cost and inconvenience of
transporting the plaintiff to court from his place of incarceration; (2) the potential
danger or security risk that the plaintiff would pose to the court; (3) the
substantiality of the matter at issue; (4) any need for an early determination of
the claim; (5) the possibility of postponing trial until the plaintiff is released from
prison; (6) the plaintiff's probability of success on the merits of his claim; (7) the
integrity of the correctional system; and (8) the plaintiff's interests in presenting
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his testimony in person rather than by alternate means, such as by deposition.
Id. at 721.
The United States argues that transporting Mr. al-Kassar would create a
substantial and unnecessary security risk. Mr. al-Kassar is incarcerated for,
among other things, providing support and resources to foreign terrorist
organizations. Dkt. 265-1 ¶ 3. He has an extensive network outside of prison
and the highest security-level designation possible within the Bureau of Prisons
("BOP"). Id. ¶ 4. County jails lack the capacity to maintain appropriate
monitoring and security for Mr. al-Kassar so if Mr. al-Kassar were to appear in
person, he should be housed at the Communications Management Unit ("CMU")
at the United States Penitentiary in Terre Haute ("USP Terre Haute") where his
communications can be monitored consistent with his security level. Id. ¶ 5-6,
9. The United States assures the Court that if Mr. al-Kassar participates in the
trial by video, he will be provided with paper copies of all exhibits, a continuous
video link with the Court, and a phone line to allow him to communicate with
counsel privately.
Mr. al-Kassar's counsel argues that Mr. al-Kassar's in-person appearance
is critical. First, he will be the main witness in his case and provide key evidence
in support of his claims, and in-person testimony is the most effective means to
present his testimony. He further explains that being in person will also facilitate
his ability to confer with counsel throughout trial. He contends that this is
particularly important because counsel has had limited opportunity to confer
with him as they prepare for trial. Nonetheless, Mr. al-Kassar "strongly objects
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to being held in custody at USP-Terre Haute (in the Communications
Management Unit ("CMU") or otherwise) because it is the same location and
personnel by which he suffered the very harms alleged in this lawsuit." Dkt. 265
at 2. Mr. al-Kassar states that if the USP Terre Haute is the only location where
the Court would permit him to be held, he would prefer to appear remotely from
his current location at USP-Marion.
Considering the factors set forth in Perotti, the Court finds that the factors
against in-person testimony outweigh the factors that support in-person
testimony. First, the United States has demonstrated the above-average security
risk posed by transporting Mr. al-Kassar for trial. Housing him somewhere other
than a CMU of a United States penitentiary could create serious security risks
to the BOP and the public. In addition, this case has been pending for several
years and, according to the BOP inmate locator, Mr. al-Kassar is not set to be
released from prison until 2032, at the earliest. Thus, resolution of this case
before Mr. al-Kassar is released weighs in favor of having him participate
remotely. Mr. al-Kassar's interest in presenting his testimony in person is
moderated by the fact that the trial is to the Court, rather than a jury. Last, the
Court notes that Mr. al-Kassar was able to effectively participate and testify by
video at the Pavey hearing.
Accordingly, Mr. al-Kassar will participate in the bench trial remotely by
video. The Court will issue separate orders to ensure his presence and
anticipates that the United States will facilitate his participation as stated in the
affidavit of Kathy Hill. Dkt. 265-1 ¶ 8.
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SO ORDERED.
Date: 2/1/2023

Distribution:
MONZER AL-KASSAR
61111-054
MARION
U.S. PENITENTIARY
P.O. BOX 1000
MARION, IL 62959
David J. Carr
ICE MILLER LLP (Indianapolis)
[e-mail]
Kayla Ernst
ICE MILLER LLP (Indianapolis)
[e-mail]
Rachana Nagin Fischer
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]
Justin R. Olson
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]
Paul Conrad Sweeney
ICE MILLER LLP (Indianapolis)
[e-mail]
Shelese M. Woods
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]

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