Lawyers for Abu Zubaydah, one of Guantanamo Bay’s most notorious inmates, are taking an unconventional approach in an effort to get their client out of indefinite detention: They’ve filed an ethics complaint against the chief prosecutor, U.S. Army Brigadier General Mark Martins, for not charging their client. Even stranger, they’ve filed their complaint with the Massachusetts Bar.
To connect the dots from the Guantanamo War Court to the Massachusetts Bar Association, we need to turn the clock back a few years.
The U.S. took Zubaydah into custody in 2002, in a shootout in Pakistan. Initially, the Bush Administration called him a senior member of Al Qaeda, part of Osama bin Laden’s “inner circle.” The CIA brutally tortured Zubaydah while he was in its custody, and he lost an eye.
But Zubaydah isn’t a member of Al Qaeda, according to one of his lawyers, Mark Denbeaux. “I don’t think anyone disputes that anymore,” Denbeaux says. “So the justification for torturing him was completely false.”
Now Denbeaux is in an odd position for a defense lawyer: He wants the government to charge his client. He’s been petitioning Martins, the chief prosecutor at Guantanamo, to do just that. “It’s pretty hard to be a lawyer for somebody and you can’t even get him charged with a crime so they get a trial,” Denbeaux says. “We’ve asked General Martins four different times to please prosecute him, bring charges, and he has not. And his last response to me said, 'I’m well aware of my ethical obligations as a prosecutor.’”
Denbeaux’s seemingly novel argument is that Martins is violating his ethical obligations by not charging Zubaydah. Since Martins is a member of the Massachusetts Bar, Denbeaux filed his complaint with the Massachusetts Board of Bar Overseers, which has zero authority over the military commissions but could sanction Martins.
Martins declined to comment for this story. But retired Air Force Colonel Morris Davis, a former chief prosecutor for the military commissions, called Denbeaux’s complaint “novel and unorthodox.”
“I’m not aware of another prosecutor that had a complaint filed alleging that he by failing to bring charges against a client that it was somehow an ethical violation,” Davis told WGBH News. “But you know, you’re talking about Guantanamo, where pretty much everything related to it is a novel and unique issue.”
During his time as chief prosecutor, Davis also did not pursue charges against Zubaydah — primarily, he says, because he had bigger cases to handle, like Khalid Sheikh Muhammad, the mastermind of the 9/11 attacks.
But Denbeaux suspects a more sinister motive for not prosecuting Zubaydah. “The way in which [the CIA] treated him has become something they’re very embarrassed about, but he is the poster child to describe what torture is, and how it would work, and how its impact was.”
For all the gruesome details we know about Abu Zubaydah’s CIA interrogation, there’s a lot we don’t know — the parts that were censored from the public version of the 2014 Senate torture report. Denbeaux says the real reason the government won’t charge Zubaydah is because they don’t want that information to come out.
Madeline Morris, a former military defense counsel at Guantanamo, says that the protection of classified information is a fairly standard reason for withholding prosecution. “The idea is that the government has to evaluate whether the cost in the revelation of classified information that would be required for a given prosecution is worth it, whether the cost of that revelation is worth the value of the prosecution,” she explains. And whatever the reasons for the classification, Morris says the Chief Prosecutor is not to blame: “Mark Martins didn’t classify the information. He’s responsible to maintain the secrecy of information that has been classified; it’s not up to him to redetermine the appropriateness of any given classification. “
In September, the Massachusetts Board of Bar Overseers declined to pursue the complaint against Martins, telling Denbeaux it was not the appropriate way to address Zubaydah’s indefinite detention. Denbeaux appealed the decision in October and is still awaiting a response.
The board says their confidentiality policy does not allow them to discuss ethics complaints unless and until they result in a lawyer being sanctioned.
Even if Zubaydah gets his day in court, Morris says, that may not be enough. The Obama administration has asserted the right to hold a detainee indefinitely even if they’ve been charged, prosecuted, and acquitted.
It’s hard to imagine the Trump administration taking a more relaxed stance.
