Brig. Gen. Mark Martins Remarks After Al-Nashiri Hearing Yesterday

Chief Prosecutor Mark Martins

Remarks at Guantanamo Bay

17 January 2012

Good afternoon.  Today, the military commission convened to try the charges referred to it against Abd Al-Rahim Hussayn Muhammad al Nashiri held what is known under the Rules for Military Commission as a session without panel members present.  Such sessions—in the same manner that a federal district court hearing a criminal case will do prior to the seating of a civilian jury—enable the hearing of various matters in an orderly, methodical way for resolution by the judge prior to trial.  This adversarial process is consistent with the fair, transparent, and accountable administration of justice under the rule of law. The judge called the commission into session without panel members to begin to consider ten different motions raised by the defense and the prosecution.  He ultimately decided to take these motions in an order differently than they were filed, as is of course his prerogative under law.  I will briefly list these, in the order of filing, along with any results decided by the judge, just to recap:

• First, a defense motion to allow requests for expert assistance to be ex parte and with limited notice to the opposing party.  (Appellate Exhibit 10)  The judge ruled that Rule for Military Commission 703 required somewhat more than the limited notice as such notice had been defined in the defense motion, but he also provided instruction to ensure both the accused’s opportunity to obtain witnesses and evidence and the protection of attorney-client confidences.
• Second, a government motion seeking a narrowly tailored protective order to safeguard specific pieces of law enforcement, national security, and privacy information provided by the Government to the accused during discovery or otherwise learned by the accused, which though unclassified the Government maintains should not be disclosed before trial beyond the accused and expected witnesses due to an overriding public interest.   (Appellate Exhibit 14)
• Third, a defense motion seeking some means of barring or limiting DoD from conducting comprehensive routine and non-content screening of defense department network computers in order to prevent viruses and cyber attack. (Appellate Exhibit 16)  The judge heard the testimony of one witness on this matter and ruled that the defense could meet its obligations to protect client confidences through use of encryption.
• Fourth, the proposed trial schedules submitted by both the defense and the prosecution.  (Appellate Exhibit 23)
• Fifth, a defense motion objecting to the Government’s proposed protective order seeking narrow and tailored safeguards of national security information consistent with full trial preparation by the accused under the classified information procedures required in the Military Commissions Act of 2009.  (Appellate Exhibit 24)
• Sixth, a defense motion to abate or void the proceedings based on allegations that not yet having received necessary security clearances at the time of filing of the motion was preventing members of the defense team from reviewing discovery materials.  (Appellate Exhibit 25).  The judge dismissed this motion upon defense’s own withdrawal of the claim, given that the security clearances were granted in advance of any materials requiring the clearances.
• Seventh, a defense motion for the accused to be unrestrained during meetings with his attorneys.  (Appellate Exhibit 26)  The judge denied the motion, finding a legitimate government interest in the options provided by the detention facility for meeting with the client.
• Eighth, a defense motion alleging interference by Joint Task Force Guantanamo in the accused’s receipt of confidential legal mail from his attorneys.  (Appellate Exhibit 27)  The judge has not completed consideration of this motion, but he did rule today that the defense had not established the relevance and necessity of appearance by a member of the existing Privilege Review Team, while also ruling that Rear Admiral Woods’s relevance and necessity as a witness had been established, but solely with regard to how the 27 December order proposed by the Government for adoption by the Commission as to Mr. Al Nashiri was being implemented.  The commission then heard testimony from Admiral Woods.
• Ninth, a government motion for public access to open proceedings of the military commission via closed-circuit television transmission to remote locations.  (Appellate Exhibit 28).  The judge granted this motion over defense’s objection while agreeing to consider future motions relating to public access.
• And Tenth, a defense motion alleging that classified information procedures are inconsistent.  (Appellate Exhibit 29).  The judge resolved this concern of the defense by clarifying that defense counsel may freely use the unofficial transcript posted the day after proceedings.

That is the state of litigation at this time.  The broader context is that a decade ago, Mr. Al-Nashiri is alleged to have carried out a deadly plot with other members of al Qaeda to attack ships off the Arabian Peninsula.  The charges against him consist of multiple serious violations of the law of war in connection with the bombing of the United States warship the USS Cole and the French Merchant Vessel MV Limburg and with the attempted bombing of the United States warship the USS The Sullivans.  I emphasize that the charges before the military commission are only allegations, and that the accused enjoys a presumption of innocence unless and until proven guilty beyond a reasonable doubt.  The charges have been referred to a military commission empowered to impose the death penalty. I will not comment on specifics of the case of Mr. Al-Nashiri other than to note, as I have, the results announced by the judge today. I will note that far from seeking to violate attorney-client privilege, the United States respects the privilege and the role of defense counsel.  As in federal practice, the prosecution plays no part in handling the correspondence of an accused in a detention facility or the email of his attorneys, does not communicate with facility personnel concerning contacts they have with an accused’s legal materials, and is not privy to those materials.  Further, the United States seeks to implement reforms sought via passage of the Military Commissions Act of 2009, in which effective assistance of counsel was an area of particular interest.  This was so, even though accused persons in military commissions have been zealously represented at government expense to date, something that has been noted again and again even by critics.  All recognize that even competent defense lawyers need access to evidence, confidential access to their clients, and access to witnesses in order to prepare.  Many dedicated public servants are committed to ensuring they get such access, and the judge also has remedies available to him to balance the accused’s right to prepare for trial and the security interests of this country and our people. In closing, I want to emphasize that judges in our time-honored system decide motions.  This commission is no different.  The judge considers the facts and applies a well-developed body of law and precedent.  In the case of Zacarias Moussaoui, the federal judge considered hundreds of motions over the course of a 4-year, 4-month trial.  There were, in that case, 1900 docket entries and some 1200 exhibits.  Such trials, even if numerically few, implicate hugely important national interests, and I respectfully submit that such interests fully vindicate the energy and expense invested.  Not only must we continue to pursue the truth for the surviving family members of victims who have been rendered silent, but we must also pursue it because that is what justice requires.  A civilized and open society facing very real and modern security threats can demand no less. And now, I’ll be happy to take questions. *     *     *     *     *     * I want to reiterate that  it has been a collaborative effort by the Federal Bureau of Investigation and the Naval Criminal Investigative Service to marshal the evidence on which the charges against the accused are based, and I note again that the prosecution of this case combines dedicated trial counsel from the Defense and Justice Departments.  Within the space defined by our values and the law, we must use all of the instruments of our national power and authority to counter transnational terror networks, and this investigation and prosecution is reflective of that pragmatic approach.  I also want to commend the daily professionalism of the Sailors, Soldiers, Marines, and Airmen of Joint Task Force Guantanamo. I believe the public proceedings witnessed today fully live up to Justice Jackson’s remark that “there is no reason for a judicial trial except to reach a judgment on a foundation more certain than suspicion or current rumor.”  People of our tradition, he said “cannot regard as a trial any proceeding that does not honestly search for the facts, bring forward the best sources of proof obtainable, [and] critically examine testimony. . . . you must put no man on trial if you are not willing to hear everything relevant that he has to say in his defense . . . .”  That is what happened today in this adversarial, law-governed proceeding, and that is what will happen tomorrow.  I look forward to talking to you after that proceeding.