Victims' Rights Advocacy: Interview with Dr. T. Markus Funk

Funk is a white-collar lawyer and commercial litigator who, before joining the global law firm Perkins Coie, was part of the federal prosecution team that prosecuted the mob murders that inspired the movie Casino. He also served as the DOJ’s Section Chief in post-conflict Kosovo. Markus earned a PhD in law from Oxford (where he started his legal career as a law professor), has been elected to membership with the American Law Institute, and is a prolific author on topics ranging from anti-corruption, anti-trafficking, and self-defense law theory to victim rights and advocacy at the International Criminal Court. Funk, along with Andrew S. Boutros, founded the ABA’s Global Anti-Corruption Committee.

Funk served as a law clerk to Judges Morris S. Arnold (Eighth Circuit Court of Appeals) and Catherine D. Perry (US District Court—St. Louis). He taught law at the University of Chicago, Northwestern University, the University of Arkansas-Little Rock, Denver University, and the University of Colorado. He received both the DOJ’s highest trial performance award and the State Department’s highest general service award.

Active in projects abroad, as we’ll get to below, the ABA in 2022 asked Funk to serve as an official observer at the Military Commissions trials held in Guantanamo Bay, Cuba.

Markus, what drew you to international work, and even when your practice has had a domestic focus, how have you cultivated that interest?

For starters, I am a dual national. My father was a photographer for National Geographic, among other magazines. My mother was German (they met during his first assignment abroad), so I grew up in Germany until I was 17. Attending the Frankfurt International School, my graduating class of 83 had students from some 30 countries. So, in that sense, a transnational perspective was part of my life from birth.

At a young age, I learned about the historic Nuremberg Trials held in the aftermath of World War II. This offered my first look at creating an all-important historical record of abuse. If you had asked me in high school what I wanted to be, I would have told you a  “war crimes prosecutor.”

Later in life, and in part from 2004–06 when I lived in Kosovo working for both the US State Department and Department of Justice, I had a front-row seat to the investigation and prosecution of war criminals. That experience was tremendously rewarding. But it also opened my eyes to some of the foot faults needlessly committed by those international actors charged with prosecuting the world’s most serious crimes and criminals. This partly motivated me to write my Oxford University Press book Victims’ Rights and Advocacy at the International Criminal Court and to co-found the Global Anti-Corruption Task Force (now Committee) in 2009.

Until the COVID epidemic shut down most of the world, I flew hundreds of thousands of miles, sometimes in a single year, typically leading investigations abroad into alleged wrongdoing, such as bribery, corruption, and fraud, for large companies overseas.

In a profession that asks most practitioners to specialize, how have you been able to diversify yours in substance and geography?

Growing up overseas with a father who often was on assignment and with classmates who, in any given year, would have a 60 percent turnover as their parents’ employers moved them to other countries, I had little choice but to embrace change and new beginnings. During my two clerkships, early teaching career, and time as a federal prosecutor, tackling new subject matter was the order of the day.

When I entered private practice, I tried to figure out the legal areas where I might have an information or experience advantage. Having successfully tried some 24 criminal felony cases to verdict as a federal prosecutor, including one trial that lasted more than three months, I knew walking into private practice that I felt at home in the courtroom. But, I was open to subject-matter niches.

Because I quickly realized that just doing what everyone else was doing was not likely to work well for me, and because of some other dynamics, during my first year in private practice, I struck out on my own. I helped launch my firm’s Supply Chain Compliance Practice—the first such practice among the AmLaw100—because I could use my experience to help companies avoid child and trafficked labor in their supply chains. [Markus and US District Judge Virginia Kendall co-authored the leading book on trafficking and supply chains, Child Exploitation and Trafficking: Examining Global Enforcement and Supply Chain Challenges, and US Responses.]

Later, I expanded my focus to other areas in which I had valuable government and other non-firm experience, including internal investigations focused on detecting wrongdoing and anti-bribery compliance. [Markus authored another Oxford Press book with Andrew Boutros: From Baksheesh to Bribery: Understanding the Global Fight Against Corruption and Graft.]

So while the development of my practice at first blush might appear a bit eclectic, what was really happening was that I was trying to match my areas of expertise with areas of need for clients. In the intervening years, I was able to handle typical litigation and investigations but was able to draw from a more diverse quiver of subject matter areas. 

You’ve been part of trial skills trainings/projects in Haiti, Kosovo, Sudan, Macedonia, and the International Criminal Court. How did you get involved in those projects, and what did they entail?

Kosovo really kicked things off. When I arrived in Pristina, Kosovo, the country was struggling to switch from the Soviet-style inquisitorial legal system to a more rule-of-law-based adversarial system. Put another way; it was switching away from a legal system in which the court, or at least a part of the court, is actively involved in investigating the facts of the case. It was trying to switch to a system more sensitive to the liberty of the citizen and where the court is supposed to act more like an impartial referee between the parties.

The problem was that this new system was unfamiliar to the Kosovar lawyers, prosecutors, and judges. Compounding the issue were international (including, unfortunately, many US-based) organizations trying to “train” local lawyers using instructors, many of whom had never prosecuted, defended, or even adjudicated cases.

The net result were trials in which, for example, the defendant sometimes sat alone in the center of the courtroom without counsel, where many judges took on the roles of prosecutors, and where certain Supreme Court justices argued that their rulings were their personal “work product” and refused to make them public. [On behalf of the USDOJ, Funk participated in a televised signing of a Memorandum of Understanding with the Chief Justice of Kosovo’s Supreme Court, pursuant to which all rulings going forward were printed and made publicly available.]

Recognizing that more was required, my incredibly gifted colleague Dastid Pallaska and I realized the need for a comprehensive guide to trying cases under Kosovo’s procedural rules and statutes. What we ended up producing was a DOJ and Kosovo Judicial Institute-endorsed trial skills handbook that married real-world trial practice approaches with Kosovo’s new legal provisions. The book was a much-needed first step in getting the tremendously talented and long-suffering local lawyers pointed in the right direction. [Funk’s Trial Skills Handbook has frequently been cited by the Kosovo Supreme Court.]

With the tailwind of the Kosovo Trial Skills Handbook at our backs, we prepared similar guides and provide trainings for lawyers and the judiciary in Haiti, Darfur, Macedonia, and the International Criminal Court.

I would imagine you are asked to contribute to a lot of different projects or causes. How do you decide whether to engage in a particular pro bono effort?

Sometimes I wonder if I am taking on too much (a feeling I know many of my colleagues share). On the pro bono front, we have accepted many matters. That said, I mostly work with organizations or individuals accused of legally challenging offenses (most recently, a judge accused of divulging court-sensitive information). My first reaction is to say “yes,” but I am fortunate to have trusted colleagues serving as sounding boards as we consider whether taking on the matter is appropriate.

What do you think the role of American attorneys is in contributing to the rule of law at home and abroad?

The rule of law is often considered an abstract principle. But to those who lived in geographies where the rule of law has broken down, it becomes a very real thing. Prisons full of political opponents, an atmosphere of fear and repression, and economic climates that stand no chance of attracting foreign investment are some of the very tangible costs when the rule of law receives insufficient nurturing.

Post-war areas of the world are full of well-intentioned but largely under-equipped foreign attorneys seeking to “help.” For those who really want to make a difference, achieve a well-honed skill set before you board the flight. We must have our own house in order before we set forth to help others.

Lawyers, whether part of organizations such as the ABA or otherwise, must also carefully guard against the temptation to lose empathy and refuse to show grace to those with whom they disagree. I see this corrosive dynamic creeping into every part of society, including the legal profession. 

Speaking of contributing to the rule of law at home, you recently traveled to Guantanamo Bay as an Official Observer. Tell us about that.

The American Bar Association asked me to serve as its official observer of the Abd Al-Rahim Hussein Al-Nashiri Guantanamo Military Commission hearings. On April 23, 2022, our flight departed Andrews Air Force Base destined for Guantanamo Bay, Cuba (GTMO).

To get you oriented—of the approximately 779 men detained in Guantanamo since January 2002, some 32 have been charged in the Military Commission. The 57-year-old Saudi-born Al-Nashiri is one of only five active cases in the Commission, none of which have yet gone to trial. Nashiri, who was first captured in October 2002, is accused of, among other things, being the mastermind behind the October 2000 bombing of the U.S.S. Cole in the port of Aden, Yemen. He allegedly reported directly to Osama bin Laden. The bombing killed 17 US sailors and injured nearly 40 other crew members. The government is seeking the death penalty against Al-Nashiri.

I spent eight days as a guest of the Department of Defense. The pretrial hearings I observed involved the prosecutors’ request to admit incriminating in-custody statements from others directly implicating Nashiri but who, as the evidence indicated, were tortured while in custody in the early 2000s. Techniques included “monstering”—forcing the detainees to stay awake for up to 72 hours. (You may be wondering how in-custody statements can be admitted in federal court, where such out-of-court, in-custody statements would be barred on Confrontation Clause and hearsay grounds; the Military Commission Act allows such statements into evidence.)

Another unusual aspect of the hearings was that the entire courtroom is a SCIF—a Sensitive Compartmented Information Facility. Observers watch the proceedings from behind a sound-proof window. Even compared to US-based Supermax prisons, the security precautions at GTMO were exceptional (which helps explain, at least in part, why the US government spends a reported $15 million on the detention of each prisoner each year).

I took on this work as a Perkins Coie pro bono project,  and I reported to the ABA that the hearings were professional, that the prosecution and defense were experienced, and that the judge was even-handed and did an impressive job running the courtroom.

I should add that, contrary to widespread belief, the approximately 25-square-mile Naval Station Guantanamo Bay supports many military and interagency operations, not just the Joint Task Force detention facilities and Military Commission courtrooms. GTMO was constructed in 1898 and is our oldest overseas base. Of the 6,000 or so full-time government employees at GTMO, approximately 1,500 work at or with the Joint Task Force (which runs the detention site and courtrooms). That said, 1,500 military personnel for 39 remaining charged and uncharged detainees is a significant allocation of resources.

One additional aspect of the trials worth mentioning is that an acquittal at GTMO does not mean the detainees are going free. For enemy combatants like Al-Nashiri, the courts use a “preponderance of evidence” standard—that is, more probable than not—in assessing whether an individual is properly detained under the Executive’s detention power. The Military Commission trials, in contrast, use the familiar “beyond a reasonable doubt” standard. The upshot is that, even if Nashiri is acquitted at trial, he will almost certainly remain in military detention for the rest of his life. If he, on the other hand, receives the death penalty, it is also a virtual certainty that the appeals and other processes will ensure that he will die of natural causes prior to any execution.

What’s the best piece of advice you’ve ever received?

“Don’t let the bastards get you down,” “keep your power,” and “fail better” are a trifecta of guiding principles that have served me well. But carrying forward this advice regularly requires a healthy helping of self-confidence.

Pursuing your own way when necessary and appreciating that some of life’s greatest lessons come when things are not going well are perspectives worth cultivating. That said, always be open to, and in fact welcome, the advice of trusted confidants who will honestly tell you when you can do better.