Former Guantanamo Prosecutor Visits Law School

Meredith Heagney
Law School Office of Communications
February 25, 2013

It’s the conundrum no professional wants to face: Do what you believe is right, at the expense of your career, or ignore your conscience and reap the benefits?

Omar S. Ashmawy, Staff Director and Chief Counsel with the Office of Congressional Ethics, faced this wrenching choice while working as a military prosecutor in Guantanamo Bay as part of the Judge Advocate General’s Corps (JAG). Ashmawy, who prosecuted U.S. v. Hamdan, the first U.S. war crimes tribunal since World War II, visited the Law School on January 28 to share his fascinating story and what he’s learned about ethics in his accomplished and fascinating career.

Ashmawy was a major in the Air Force who had prosecuted more than 100 cases when he asked to be transferred to Guantanamo Bay, where the U.S. holds detainees believed to be involved with terrorism. Ashmawy is half-Italian, half-Egyptian, and a Muslim, and his father and uncle, who was an Egyptian Supreme Court judge, spent years working to combat Islamic extremism. Ashmawy, who speaks Arabic, had heard the prison compound was beset with problems, and believed he could serve his country by going there.

“I wanted to use those skills to make our country safer and bring some experience into what appeared to be a problematic process,” he said.

Unfortunately, Ashmawy was dismayed at how broken the system at Guantanamo turned out to be. Many of the the prosecutors on the detainees’ cases were very inexperienced, officials were often hostile to the inmates’ religious and ethnic backgrounds, and many of the cases lacked a strong evidentiary record. Ashmawy was encouraged to be part of the Hamdan team, because he believed in the legitimacy of the case, he said. It involved a defendant accused of providing material support to terrorism; Hamdan has been described by the U.S. government as a driver and bodyguard for Osama bin Laden. Ashmawy and the prosecution were successful in getting a conviction in the military court, but it was overturned in the D.C. Circuit Court of Appeals because Hamdan’s offense was committed before the Military Commissions Act, which outlawed “material support” for terrorism, was passed in 2006.

Ashmawy also provided the students with a fascinating description of what Guantanamo Bay really looks like. He described an Americanized town with fast food and a baseball diamond, where it wasn’t unusual to hear the tinkling of an ice cream truck. He described the bizarre juxtaposition of a breathtaking view of the Caribbean Sea and a series of prison buildings.

After two years of feeling ineffective and discouraged by the system, Ashmawy realized he had to leave.

“It was the hardest moment I had ever experienced,” he said. “You realize there is no way to actually make this better.”

After he left the Air Force, Ashmawy joined the Office of Congressional Ethics. The office operates as an internal affairs department for the House of Representatives, investigating allegations of ethics violations by members of Congress. Ashmawy leads the office’s staff; their job is to provide evidence of potential wrongdoing to a board of former members of Congress, like a grand jury. From there, the board may authorize an investigation.

“We have to judge what is ethical and what is not ethical,” Ashmawy said. “It’s never as simple as legal and illegal.”

Ashmawy told the students that now is the time to start thinking about how they will react when, inevitably, they have to choose between the right thing and the career-enhancing thing.

“You’re going to have someone who’s paying you, sooner or later, to do something you’re not comfortable with,” he said. “What are the bounds of a lawyer’s responsibility to their clients, to the Constitution and to themselves?”

And for those students who might think that Ashmawy’s circumstances were remarkable or unusual, he warned them to think again.

When it comes to ethical dilemmas, “these are problems you’re going to have no matter what job you have.”