The Obama presidency will soon be over, but there is little doubt that the detainment camp in Guantanamo Bay will live on. It might even expand. Despite President Obama’s wish to close the camp, President-elect Donald Trump promises “to load it up with some bad dudes.” The issue of closure has divided along party lines, but there is a place to meet in the middle: Bring current detainees to trial. Strange as it may sound, Massachusetts could play a key role in taking us there.
The decision of whether, when, and how to prosecute Guantanamo detainees is vested with the facility’s chief prosecutor, Brigadier General Mark Martins. The general recently passed his five-year anniversary as chief prosecutor, but he has not yet lived up to the title of the job. He has charged only a small fraction of his 59 prisoners, the vast majority of whom have languished behind the camp’s barbed wire fences for more than a decade.
There are only nine prisoners who have charges against them, and all but two had been formally charged before Martins assumed his post. And while some prisoners have been cleared for release, dozens of remaining detainees are in the seemingly perverse position of hoping that they will be charged with crimes: It is the only chance that many of them have at freedom.
Among them is Abu Zubaydah, who has been in captivity since 2002 and has the unenviable nickname “The Guinea Pig of CIA Torture.” For years, the government has maintained that there is sufficient evidence to detain and prosecute Zubaydah. Indeed, Government Accountability Office reports dating back to 2010 show that Zubaydah had been given the “final disposition” of being “referred for prosecution.” And just weeks ago, Martins conceded in a legal motion that “the prosecution of Mr. Zubaydah has been considered previously.” Yet, Martins has failed to prosecute him, stating in that same motion that he could do so “especially as more evidence inevitably comes to light.”
Perhaps Martins is afraid he might lose; he will have trouble using evidence gained from torture, after all. But if he did not have the courage to prosecute based on the more than 14 years of evidence that the government has collected during Zubaydah’s captivity, he cannot reasonably expect to gain it from whatever evidence comes to light in the months, years, or even decades ahead.
Fortunately, where constitutional remedies have not yet forced him to budge, there is another remedy — namely, to subject Martins to ethical discipline for failure to prosecute a case for which there is probable cause.
This is where Massachusetts comes in. Martins is a member of the Massachusetts Bar and, through the operation of Military Commission rules, he is subject to the Massachusetts Rules of Professional Conduct. They declare that prosecutors are held to a higher standard than ordinary lawyers because they are “minister[s] of justice.” They further forbid conduct that is “prejudicial to the administration of justice” and avoiding “pursuit of evidence because the prosecutor believes it will damage the prosecution’s case or aid the accused.” In that connection, the rules hold General Martins to “specific obligations” to see that the detainees are “accorded procedural justice.” But the procedure for prosecuting the detainees has stalled at his desk.
Although prosecutors are rarely disciplined for failure to prosecute, it has occurred in nearly a dozen states, including Massachusetts. And the people who went un-prosecuted in those cases were not stuck behind bars for years and years without any clue as to when they might have a chance to defend themselves in a courtroom.
As a last hope, lawyers representing Zubaydah recently filed an ethics complaint against Martins with the Office of the Bar Counsel, which investigates attorney misconduct in Massachusetts. There is a risk, however, that their plea might slip through the cracks. An initial review from the Bar Counsel did not yield any action against Martins, on the grounds that Martins’ decision was not made by him alone. Daniel Coquillette, a former dean at Boston College Law School, has written to the board, urging it to reopen the case. As Coquillette observed, “the excuse of ‘superior orders’ is a terrible lesson for my students,’’ Thankfully, the Board of Bar Overseers of Massachusetts — the tribunal that handles charges from the Bar Counsel — is considering its own independent review of the complaint.
We should hope that the Massachusetts board will take its role seriously and conclude that Martins cannot be allowed to make an end run around justice by sitting on his duties.
Brian Sheppard is a professor at Seton Hall University School of Law. His colleague, Professor Mark Denbeaux, represents Abu Zubaydah.