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Lawyer for Accused 9/11 Plotter Speaks Monday

JAG attorney: Gitmo commissions could fray everyone’s rights

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Navy Commander Suzanne M. Lachelier

Do military trials for Guantanamo Bay prisoners dispense justice to terrorists or trample the U.S. Constitution?

Navy Commander Suzanne M. Lachelier fears the latter.

Lachelier (LAW’92), this year’s School of Law Shapiro Lecturer, is a member of the Judge Advocate General’s Corps; she will speak on Ground Zero for Justice: Guantanamo Military Commissions and the Future of Our Legal Rights, on Monday, February 22, at LAW. Lachelier represents Ramzi bin al Shibh, one of five men being held for allegedly plotting the 9/11 attacks, and Ibrahim Ahmed Mahmoud al Qosi, charged with conspiracy to commit war crimes. Bin al Shibh’s case is higher profile; plans to try him and codefendants in Lower Manhattan recently collapsed. The Obama administration is weighing other civilian trial sites or a Gitmo military commission.

The Max M. Shaprio Lecture, the School of Law’s principal endowed lectureship, was established by the Shapiro family to honor Max M. Shapiro (LAW’33).

The day after Lachelier’s talk, the nonprofit Global Lawyers and Physicians will hold a forum on the ramifications of force-feeding hunger strikers at Guantanamo. The event, featuring experts who have studied the legal and ethical questions surrounding physicians’ involvement in such force-feeding, will be held at the School of Medicine.

BU Today: You were one of only two lawyers permitted to see Guantanamo’s secret Camp 7. Can you describe what you saw?
Lachelier:
No, it’s classified. I can discuss some of what occurred with al Qosi. He suffered isolation for eight months and some physical mistreatment. What remains to be litigated is whether statements the government obtained from him will be admissible at trial.

How might Guantanamo legal proceedings set precedents affecting all Americans?
My concern is that we’re developing a parallel system of lesser rights. We think they’re justified because we have this group of people we label terrorists. I’m concerned about the next war, or the next phase of this war, whether we decide that there’s a new group of people that we label as entitled to lesser rights.

There is precedent for military commissions.
The weight of that precedent has been overstated. There were commissions during the Civil War and World War II, where Nazi saboteurs were caught trying to penetrate the United States. In Vietnam, we also used them. The precedent was to use it in the theater of war. The idea is it’s expedient justice — it’s not supposed to be a lack of justice — in a time of war, when it’s difficult to assemble a full jury and independent judiciary. Commissions are intended to take place in the midst of conflict, and Guantanamo is not the locus of a conflict. It’s a pretty peaceable place in the Caribbean.

Some argue that military tribunals can be more sympathetic to defendants than federal civilian juries. A New York University study found an almost 90 percent conviction rate in civilian courts in terrorism-related cases during the Bush years.
Federal courts are perfectly capable of trying these cases; what the outcome may be should not be driving the decision about where they should be prosecuted. The decision should be where are they going to get open process, in which people will have confidence in the results.

As a candidate, President Obama criticized commissions, but now wants to continue them for some defendants. How bad are they?
It’s difficult to reconcile why one defendant would go in one system and another would go in the other. It seems to be driven largely by political pressures on the White House. It’s been discussed that federal courts are a danger to the protection of classified information. I think that’s a red herring. This administration changed the Military Commissions Act, and the act does provide better process. It still provides less process than a federal court.

You have concerns about the influence of the CIA on the commissions and about the use of selected press leaks.
There was a hearing where someone felt I was about to discuss classified information. A big, red hockey light went off and stopped me from talking. The judge said, “We’re going to check to see what the issue is.” A security officer came back and whispered in the judge’s ear, and the judge told me what I could and could not say. The judge was instructing us from some other power, who, we suspect, was the CIA.

We have frequently found that press stories are leaked “on condition of anonymity” or by “an administration official,” discussing subject matter for which we probably would be prosecuted. For example, our clients filed a joint pleading they wrote themselves. The court did not notify us that they were in possession of that. It was a fairly damaging statement and was published in the New York Times.

Why did you join the military?
I wanted to practice law, and someone told me the JAG Corps was a good way to get in the courtroom right away. I ended up liking it. The people you meet are exceptional.

Have you consulted any BU mentors during these cases?
I had the pleasure of being able to work again with David Rossman, a professor and director of criminal law clinical programs, and Wendy Kaplan, a clinical associate professor of law. I enjoyed those subjects — probably should have paid more attention in law school. I thought they’d be interested in having some students work on research for us, and the students took that on, and not for credit. They were involved because they wanted to be, and I really admire that.

The annual School of Law Shapiro Lecture, Ground Zero for Justice: Guantanamo Military Commissions and the Future of Our Legal Rights, is on Monday, February 22, at 12:45 p.m., at the School of Law, 765 Commonwealth Ave., Room 1270. The forum Hunger Strikes and Physicians is from 4 to 6 p.m. on Tuesday, February 23, in the School of Medicine Hiebert Lounge, 14th floor, 80 E. Concord St., and is open to the public.

Rich Barlow can be reached at barlowr@bu.edu.

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