Catherine Lemmer

Stakeholder Rights – The Prosecution

I am scheduled to leave for Guantanamo Bay on February 7 to obusbaseserve the Guantanamo Bay military commission pre-trial proceedings in the case against the five 9/11 defendants. The flight is a little longer than necessary because the plane is prohibited from crossing Cuban air space. In addition to the NGO Observers, the plane to Guantanamo Bay will carry many of the other players, including the defense teams, prosecutors, media, and victim family members.

As an NGO Observer, it is my role to attend, observe, analyze, critique, and report back on the Guantanamo Bay proceedings to help ensure that the proceedings are fair and transparent for all of the stakeholders. The Guantanamo Bay Fair Trial Manual sets out the rights and interests of the many stakeholders: the defendants, prosecution, victims and their families, press, witnesses, Joint-Task Force-GTMO, U.S. citizens, international community, and NGO observers.

general martins
Brigadier General Mark Martins (Harvard University)

Since my December 2014 Guantanamo Bay mission I have given a good deal of thought to the rights of one stakeholder group in particular: the prosecution. I met Brigadier General Martins, the chief prosecutor, and some members of his team in December during the NGO observer briefing. During the briefing he was asked the “How did you get here question?” In his response he described his past military service, conversations with family, and his legal education and training.

At the conclusion of our meeting, I thanked him for taking on the role of chief prosecutor. Many might wonder why. The short answer is that the prosecutor represents the rights and interests of society as a whole. The guarantee of a fair and transparent trial is as dependent on the prosecution upholding its duty to all of the stakeholders as it is on the defense teams zealously working on behalf of their clients and the judges engaging in thoughtful and insightful legal analysis when rendering rulings.

Standard 1.1 of the National Prosecution Standards of the National District Attorney’s Association states that “the primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth.” Standard 3-1.2(c) of the ABA Standards for Criminal Justice further notes that it is the duty of the prosecutor to “seek justice, not merely to convict.”  10 USC §949(b) (2014) prohibits the coercion or influence of military commission prosecutors. As a stakeholder entitled to a fair trial the prosecution in fulfilling its duty to seek justice has the right to operate with sufficient resources, without judicial prejudice, and free from outside influence.

The duty to seek justice through the representation and presentation of the truth is not necessarily inconsistent with a military commission proceeding. General Martins has indicated that the prosecution is bringing only those charges it believes it can prove; and that no classified information will be used as evidence as it is important for all the stakeholders to be able to evaluate the merits of the evidence. In short, he has advocated for justice with an open and transparent proceeding. However, General Martins and his team are in the challenging position of bearing the burden of illegal and unethical actions by governmental units over which he has no authority (e.g., the FBI and CIA). It may not be possible to counter the taint of these actions on the military commission proceedings. It remains to be seen how he and his team will balance the consequences of these actions while upholding the duty to seek justice.

He is an equally delicate balance with respect to the families of the victims. General Martins often speaks of justice for the victims. The voice of the victims and their families is a strong and compelling voice and the jury (panel) when finally selected and sitting will undoubtedly empathize with it.  As the proceedings progress, those interested in a fair and open process will need to be attentive to ensure that the prosecution serves justice by remaining neutral to and independent of each individual stakeholder group.

(Catherine Lemmer, 9/11 Hearings, Guantanamo Bay, February 2015)

Preparing for Guantanamo Bay 9-11 Hearings

Our plane to Guantanamo Bay is scheduled to depart from Andrews Air Force Base on Saturday morning, 13 December 2014.

Our plane to Guantanamo Bay is scheduled to depart from Andrews Air Force Base on Saturday morning, 13 December 2014.

Panic like a 1st year law student or new law firm associate!

It is easy for an Guantanamo Bay fair trial NGO observer to experience the same sort of panic that a first year law firm associate experiences when thrown into a complex litigation matter. I’ve spent a fair bit of time over the last few days reading and re-reading the motions to be heard next week when I am in Guantanamo Bay. Despite my homework, I am not sure I fully comprehend the significance of many of the details.

 

Blog posts – to a fair trial – Guantanamo Bay Fair Trial Manual.

Generally, my blog posts during my Guantanamo Bay mission will not focus so much on the substance of the legal arguments related to the case. Instead, they will focus on right to a fair trial issues, as discussed in the Guantanamo Bay Fair Trial Manual. However, on the eve of my departure, I wanted to post on the defendants in the hearings next week, the pre-trial motions scheduled, and on the odd assortment of categories of lawyers expected to be present to represent the defendants and to represent the U.S.

The hearings for 15 – 16 December 2014

Five motions are scheduled to be heard during two days of hearings at Guantanamo Bay in the case against 5 alleged masterminds of the World Trade Center / Pentagon attacks on 9-11. All five defendants, Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak bin ‘Atash, Ramzi bin al Shibh, Ammar al Baluchi (aka Ali Abdul Aziz Ali), Mustafa Ahmed Adam al Hawsawi, and their legal defense teams are expected to be present for the hearings. Also expected to be present is Independent Counsel appointed for Mr. bin al Shibh.

The regular prosecutors in the case will likely not be in the courtroom during at least some of the hearings, but the U.S. will be represented by a “Special Review Team” that was called in to represent the U.S. next week because of conflict of interest issues related to due to allegations related to the FBI allegedly infiltrating defense teams on the case(more…)