Published by The Lawfare Institute
in Cooperation With
Military Commissions Chief Prosecutor Mark Martins issued the following statement over the weekend:
CHIEF PROSECUTOR MARK MARTINS
REMARKS AT GUANTANAMO BAY
28 MAY 2016
Good evening. As we commemorate Memorial Day on Monday, we pause in solemn tribute to members of our armed services, past and present, and, most of all, to the Fallen. We recognize that they include among their ranks members of our military who chose to serve after September 11th, inspired by the courage and selflessness on such tragic but unforgettable display throughout that murderous day. One of those who has inspired this new “Greatest Generation” of servicemembers is Diane Marie Urban, who—despite surviving the wing of Flight 175 grazing the 78th floor of the South Tower—perished after stopping to comfort a seriously injured woman and then assisting a second woman, Diane’s lifelong friend, to the only passable staircase. Another who has inspired the 9/11 generation is Keith Fairben, a paramedic, who would never return home after rushing to the South Tower to assist the injured. Another is James Samuel, Jr., whose memory lives on in the scholarship fund his family established in his name. Another is David Retik, whose wife established a nonprofit foundation in his memory, which will also endure through his loving children. Still others are Michael Andrew Bane and Peter Chirchirillo, whose examples have given their wives the strength to overcome heartbreaking loss and continue serving their communities. The families and friends of those attacked on September 11th, like those whom we honor each Memorial Day, know sacrifice intimately. We remember each and every one of them.
Upcoming Proceedings and Developments in United States v. Mohammad, et al.
On Monday the Military Commission convened to try Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi will hold another series of pre-trial sessions without panel members present. These five Accused stand charged with plotting the attacks of September 11th, which resulted in the deaths of nearly 3,000 persons. I emphasize that the charges are only allegations. The Accused are presumed innocent unless and until proven guilty beyond a reasonable doubt. Matters under consideration by a military commission in this or any other particular case are authoritatively dealt with by the presiding Judge. Any comments addressing systemic issues that are the subject of frequent questions by interested observers should always be understood to defer to specific judicial rulings, if applicable.
When we last spoke for the United States v. Mohammad, et al. pre-trial sessions in February, I mentioned that the prosecution had agreed to produce to the defense discoverable information falling within a ten-category construct the Military Judge in United States v. Al Nashiri had established in that case. The Judge established this construct “to focus the Prosecution’s analysis of information as it unilaterally fulfills its discovery obligations and responds to current and future discovery requests” from the defense for information regarding the Central Intelligence Agency’s (“CIA”) former Rendition, Detention, and Interrogation (“RDI”) Program. The government moved the Military Judge in Mohammad to adopt the tencategory construct, and last month he granted this request. AE 397F. (He denied the government’s request to consolidate discovery motions involving information not included within the former RDI Program. Id.) Discoverable information falling within the ten categories, albeit small in proportion to what has already been provided, is substantial in absolute terms.
For those items, many of which are classified, the government is in the process of identifying appropriate substitutions and other relief, using the classified-information procedures of the Military Commissions Act of 2009 (“M.C.A.”), to prevent damage to the national security. The prosecution invoked these procedures in February 2016, requesting substitutions and other relief for four of the ten categories of information in the ten-category construct. See 10 U.S.C. § 949p-4(b)(1)-(3); see also 10 U.S.C. § 949p-6(d). Since then, the prosecution has requested substitutions and other relief for an additional two categories of information. Under the M.C.A., a military judge grants such requests for relief if the military judge finds that it “would provide the accused with substantially the same ability to make a defense as would discovery of or access to the specific classified information.” 10 U.S.C. § 949p-4(b)(3); see also 10 U.S.C. § 949p- 6(d)(2). This process requires the prosecution to propose particularized relief to the Military Judge in any case where discoverable information remains classified and cannot be provided to the defense in its original form. The process, though painstaking, is necessary and worth the effort and time it takes to protect the Accused’s right to a fair trial while safeguarding the national security.
Meanwhile, the prosecution has provided to each defense team more than 330,000 pages of unclassified discovery. This includes material comprising the government’s case against the Accused and information required to be disclosed to the defense under the government’s affirmative discovery obligations. The prosecution has provided this discovery to the defense while safeguarding our nation’s counterterrorism secrets.
Also, to date, the parties have briefed in writing some 216 substantive motions and have orally argued some 50 motions. Of the 216 motions briefed, 12 have been mooted, dismissed, or withdrawn; 99 have been ruled on by the Judge; and an additional 38 have been submitted for and are pending decision. The Judge has received testimony from 30 witnesses in more than 85 hours of testimony, with all witnesses subject to cross-examination, to assist it in deciding pretrial motions. The parties have filed 234 exhibits and more than 110 declarations alleging facts and providing references to inform the Judge’s consideration of these issues. This information, while never meant to imply that justice can be distilled into numbers, nonetheless reflects methodical and deliberate movement toward trial.
In other case developments, the Military Judge has issued several rulings. During the last pre-trial sessions in February, Walid Muhammad Salih Mubarak Bin ‘Attash reiterated his desire to terminate his learned counsel’s representation and sought to terminate another civilian counsel’s representation. (These representation issues are addressed in the Appellate Exhibit 380 series of pleadings.) Finding no good cause for their termination, the Judge declined to terminate either counsel’s representation but ordered appointment of independent counsel for Bin ‘Attash. See AE 380II. After the February sessions, counsel for Bin ‘Attash moved the Judge to abate the proceedings until the Appellate Exhibit 380 series of pleadings was resolved. The Judge has denied the defense motion for abatement and rescinded his ruling ordering appointment of independent counsel, finding that if any Accused “has a question about his right to counsel, he may bring it to the attention of the Commission directly to be resolved.” AE 380QQ.
The Judge also denied a defense motion to make permanent an interim order “‘limiting the use of female guards to physically touch the Accused during movements to and from attorney-client meetings and Commission hearings, absent exigent circumstances, until such time as the Commission makes a final ruling on AE 254Y.’” AE 254JJJJJ (quoting AE 254JJ). (AE 254Y is a motion originally filed by Bin ‘Attash asking the Commission to order the “Commanders of Joint Task Force Guantanamo (JTF-GTMO) and Joint Detention Group (JDG) to stop using female military guard personnel (female guards) as escorts where the position requires physical touching of Mr. bin ‘Attash by a female guard.” AE 254JJJJJ.) The Judge also denied a defense motion to recuse himself from considering Appellate Exhibit 254Y or to defer ruling on Appellate Exhibit 254Y until equal-opportunity complaints filed by JTF-GTMO guards were resolved. And he denied a defense motion to dismiss the charges, abate the proceedings, and disqualify certain officials from participating in the Commission because of public comments they had made about the interim order. AE 254JJJJJ. The Judge nonetheless granted a defense motion for relief—and thus deferred rescission of the interim order for six months— ”to cure the taint of apparent [unlawful influence] caused by the public comment.” Id.
Yesterday, Secretary of Defense Ash Carter and Chairman of the Joint Chiefs of Staff General Joseph F. Dunford, Jr. released the following statement:
Military commissions are part of our system of military justice. The Department of Defense, and we personally, are committed to fairness and transparency in military commission proceedings, and to the independence of the judges who oversee them.
Our comments and those made by other senior officials regarding gender-neutral staffing of guard forces at JTF-GTMO have given rise to a concern that the comments may have appeared to be intended to influence the proceedings. We continue to believe that our military has legitimate and strong interests in gender-neutral staffing, integration of women into all positions, and the prevention of gender discrimination. We also believe that protection of the freedom of religion, and the access to representation, are fundamental to who we are. To be clear, we had no intention to influence the military judges presiding over the military commissions. Along with other senior officials in the Department, we respect the role of military judges in evaluating these issues as they might affect an individual case and we fully expect them to make their independent determinations on these and other matters.
Dep’t of Defense, Press Release No: NR-187-16 (May 27, 2016).
The Judge also denied in part a joint defense motion to dismiss the charges and specifications or remove death as a potential sentence based on allegations that government officials unlawfully influenced the Commission and the Convening Authority and inhibited defense counsel from exercising their professional judgment. AE 31BBB. The Judge denied that portion of the defense motion alleging unlawful influence on the Convening Authority’s decision to refer the charges and specifications to trial as capital offenses. Id. He also denied that portion of the defense motion alleging an adverse impact on decisions made by defense counsel—“but only in so far as [those allegations were] being addressed in this motion.” Id.
The Judge indicated he would examine other unlawful-influence allegations in the context of the particular motions in which they were raised. Id. Finally, the Judge agreed with the defense that “there is the potential for statements and other sources of public information, made outside the Commission process, to taint the panel.” Id. So he granted the defense motion in part, affording the defense “the opportunity to address the need for expanded voir dire and liberal challenges when the issue of seating the panel is properly before the Commission.” Id.
The Judge denied a defense motion to dismiss the charges for allegations that the Convening Authority was improperly appointed and thus without authority to convene this Military Commission. AE 105B. The Judge concluded that the Convening Authority “was properly appointed by the Secretary of Defense as authorized by, and in accordance with, the Appointments Clause and 10 U.S.C. § 948h (M.C.A. 2009)” and that the Convening Authority “properly exercised authority to convene this military commission.” Id.
Also, the Judge had canceled the pre-trial sessions originally scheduled for April 2016 upon review of a filing from Special Trial Counsel whom I had detailed to represent the United States with regard to the Appellate Exhibit 292 pleadings. AE 416D. Appellate Exhibit 292 is the defense motion to abate the proceedings to inquire into whether a conflict of interest exists between defense counsel and the Accused. But on 27 April 2015, the Judge found that “there are no facts, investigations or conflicts that implicate any of the Accused or Defense Counsel in this Commission” and ruled that Special Trial Counsel are “not required to render subsequent reports on the issue” they brought to the Commission’s attention. AE 292QQQQQ.
In other orders, the Commission denied a defense motion from Mohammad to abate the proceedings until the government restored his interpreter’s required security clearance and access to information controlled by a special access program or “SAP.” AE 406H. The Commission ordered that by “15 June 2016, the [Convening Authority], or the [Chief Defense Counsel] as appropriate, if necessary, shall detail or employ a qualified interpreter with the required security clearance and SAP access to participate in Commission hearings, meet with Mr. Mohammad, and have access to classified discovery materials.” Id. at 7. On a separate issue, the Commission ordered the government to provide a complete report from the Government Accounting Office to the defense or advise the Commission whether the government intends to request substitutions or other relief under M.C.R.E. 505(f)(2). AE 319D. Finally, the Commission amended its scheduling order, moving the pre-trial sessions it originally scheduled for 22-26 August 2016 to 12-16 September 2016. AE 362H. The next pre-trial sessions are scheduled for 18-29 July 2016. Id.
As for the pre-trial sessions beginning on Monday, the Judge has indicated his intent to hear argument on several matters, including matters regarding the Privileged Written Communications Management Order (AE 18 series), a government motion to conduct depositions of certain witnesses (AE 422), and a government motion to admit death certifications into evidence (AE 391). The Judge’s order listing the motions currently on the docket is publicly available on the military commissions’ website. It is Appellate Exhibit 423. His Amended Docket Order, which adds two appellate exhibits to his original Docket Order, is Appellate Exhibit 423A.
Developments in United States v. Abd al Hadi al-Iraqi
The Military Judge had cancelled the pre-trial sessions scheduled for November 2015, January 2016, and April 2016 after Abd al Hadi “requested the release of his current detailed military defense counsel” and the Chief Defense Counsel “approved” this request in September 2015. AE 53B at 1. “The Military Judge thereafter approved” the release of his current detailed military defense counsel, necessitating the detailing of “new military defense counsel to represent” Abd al Hadi. Id. The Military Judge cancelled the pre-trial sessions previously scheduled to begin in November 2015 to allow this process to occur. The Military Judge also ordered defense counsel to notify the Commission of certain events to keep the Commission “abreast of the progress of the Chief Defense Counsel in detailing new military defense counsel and in this new Detailed Military Defense Counsel’s formation of an attorney-client relationship with” Abd al Hadi. AE 53B at 1.
In accordance with that order, on 13 November 2015, the defense notified the Commission that it detailed three new military defense counsel to the case. AE 7B; AE 7C; AE 7D. Also, on 18 November, the Chief Defense Counsel notified the Commission that “an agreement was reached for two civilian counsels to work on Mr. [Abd al Hadi’s] case in a pro bono status.” AE 53D at 1. He also “indicated he is in the process of hiring a [Department of Defense] civilian attorney whom he will detail to represent Mr. [Abd al Hadi] as an assistant defense counsel . . . .” Id. In a written order, the Commission set a 1 January 2016 deadline “for pro bono civilian defense counsel to complete and submit all required documentation to obtain security clearances and to complete all required application procedures for qualification as civilian defense counsel prescribed by [Regulation for Trial by Military Commission] 9-5.c.” AE 53D at 2.
Although the next pre-trial sessions were originally scheduled for the week of 25 January, one of the newly detailed defense counsel informed the Commission during an 18 November Rule for Military Commissions 802 conference that the defense was “not ready to proceed in light of the ongoing efforts to obtain pro bono civilian defense counsel.” Id. at 1. He further informed the Commission that it “could not proceed until the pro bono civilian defense counsel was detailed as the lead defense counsel.” Id. at 1-2. The prosecution agreed with the defense “position concerning the Commission’s inability to proceed with substantive matters.” Id. at 2.
The Military Judge kept the January 2016 session in place so that the defense could “state their position on the record,” id., but shortened the scheduled hearing dates by three days. Then, on 19 January 2016, the defense moved the Commission to delay the January sessions “‘to allow [pro bono counsel] to not only receive his security clearance, but also to be granted access to and meet with his client and travel to Guantanamo Bay, Cuba.’” AE 54D at 1 (quoting AE 54A at 1). The government did not object to the defense request to continue the January sessions because additional time was required by both parties to obtain evidence and witnesses relevant to a thorough resolution of Appellate Exhibit 15K, a defense motion opposed by the prosecution that requested another continuance of at least 18 months to prepare for trial. AE 54C at 1. The Commission granted the defense request as to the January sessions. AE 54D. In February, the Commission also cancelled the sessions previously scheduled to occur in April but re-scheduled the session for May to the previous week and scheduled sessions for July and September. See AE 15M.
Although the defense moved to continue the May sessions too (see AE 55E), the Military Judge denied the defense motion and held pre-trial sessions on 17 May 2016. During these sessions, he heard argument on the defense motion requesting an 18-month continuance. AE 55G at 2. The Judge denied the request and ordered the parties to conference and agree upon future litigation milestones. AE 15R. According to the order, the parties must submit a joint pleading listing the agreed-upon subjects of future milestones by 24 June 2016. Id. If the parties agree upon timelines for these milestones, they must include the timelines in the joint pleading. Id. But if the parties cannot agree on timelines, they must submit separate pleadings with their proposed timelines by 1 July 2016. Id.
The next pre-trial sessions are scheduled for 11-15 July 2016. The Docketing Order for those sessions is Appellate Exhibit 56.
Developments in United States v. Al Nashiri
For several months the proceedings in United States v. Al Nashiri had remained stayed as the government sought re-nomination and re-confirmation of the military judges as judges on the United States Court of Military Commission Review (“U.S.C.M.C.R.”), our first reviewing court. As I discuss further below, that process is now complete, and the U.S.C.M.C.R. has lifted the stay in the two interlocutory appeals. The government filed two interlocutory appeals in the U.S.C.M.C.R. on grounds that the military trial judge in the Al Nashiri case had, under the statute authorizing such appeals, “terminated proceedings of the military commission with respect to [certain] charges” and “excluded evidence that is substantial proof of a fact material in the proceeding.” 10 U.S.C. § 950d. Meanwhile, the Military Commission abated future commission sessions pending resolution of these appeals by the U.S.C.M.C.R. See AE 340J.
The government’s efforts to seek re-nomination and re-confirmation of the military judges were prompted by language in a June 2015 decision of the United States Court of Appeals for the District of Columbia Circuit, our federal appellate reviewing court. The U.S.C.M.C.R. has sought to expedite consideration of the government’s interlocutory appeals, as the law commands. In November 2014, however, the D.C. Circuit had stayed proceedings in the U.S.C.M.C.R. while it considered Al Nashiri’s petition for a writ of mandamus and prohibition to the U.S.C.M.C.R. alleging that military judges are assigned to the U.S.C.M.C.R. in violation of the Appointments Clause and cannot be freely removed in violation of the Commander-inChief Clause of the Constitution. Order, In re Al-Nashiri, No. 14-1203 (D.C. Cir. Nov. 12, 2014), ECF No. 1521946.
On 23 June 2015, the D.C. Circuit denied Nashiri’s petition and dissolved its stay of the U.S.C.M.C.R.’s proceedings. In re Al-Nashiri, 791 F.3d 71, 86 (D.C. Cir. 2015); Order, In re AlNashiri, No. 14-1203 (D.C. Cir. June 23, 2015), ECF No. 1559091. The court reasoned it would be inappropriate to issue the writ because Appellee’s challenge “raise[d] several questions of first impression” and Appellee “can adequately raise his constitutional challenges on appeal from final judgment.” In re Al-Nashiri, 791 F.3d at 73, 85. In doing so, the D.C. Circuit did not resolve questions raised by the Appointments Clause challenge, but it concluded that “the President and the Senate could decide to put to rest any Appointments Clause questions regarding the CMCR’s military judges . . . by re-nominating and re-confirming the military judges to be CMCR judges.” Id. at 86. According to the D.C. Circuit, “[t]aking these steps— whether or not they are constitutionally required—would answer any Appointments Clause challenge to the CMCR.” Id.
As I mentioned, the re-nomination and re-confirmation process for five military judges to be U.S.C.M.C.R. judges is complete. On 10 September 2015, the Secretary of Defense assigned several incoming military judges to be U.S.C.M.C.R. judges under 10 U.S.C. § 950f. He also recommended that the President nominate those judges—in addition to the judges already serving on the Court—for appointment and confirmation as U.S.C.M.C.R. judges. The Secretary’s recommendation was transmitted to the President for his consideration of their appointment as U.S.C.M.C.R. judges. On 14 March 2016, the President transmitted the nominations as military judges on the U.S.C.M.C.R. of six servicemembers to the Senate Armed Services Committee for the Senate’s advice and consent. Then, on 28 April 2016, the Senate confirmed five of those servicemembers to be appellate military judges on the U.S.C.M.C.R.
With the re-nomination and re-confirmation process thus complete, the government moved the U.S.C.M.C.R. to lift the stay on 29 April 2016. Nashiri opposed that motion, arguing in part that the military judges should disqualify themselves from serving on his panel. The U.S.C.M.C.R. rejected Nashiri’s arguments and lifted the stay for both interlocutory appeals on 18 May 2016. This past week Nashiri petitioned the D.C. Circuit for a writ of mandamus and prohibition to compel the military judges’ disqualification and moved the D.C. Circuit to stay the proceedings in the U.S.C.M.C.R. Yesterday the D.C. Circuit denied the writ petition and dismissed the motion to stay as moot. This means that the proceedings in the U.S.C.M.C.R. will resume. With the briefing in the first interlocutory appeal complete, the Court ordered oral argument for that appeal on 2 June 2016. The Court also issued a briefing schedule for the second interlocutory appeal. In accordance with that schedule, the government submitted its opening brief on 24 May 2016. Nashiri’s response is due on 13 June 2016, although he has asked the Court for an extension.
While the military-commission proceedings still remain stayed at this time, the government continues its comprehensive review process to comply with the Commission’s 24 June 2014 Order establishing the ten-category construct I mentioned earlier. AE 120AA. To date, the prosecution has substantially responded to the Order with respect to all ten categories and continues to seek access to other, potentially discoverable information. For eight of the ten categories, the Commission has approved requests for substitutions and other relief under the M.C.A. to prevent damage to the national security. AE 120HHHHH. Other requests remain pending with the Commission.
The prosecution also continues work that began in February 2015 to review the full Senate Select Committee on Intelligence “Study of the Central Intelligence Agency’s Detention and Interrogation Program.” AE 206Q. The prosecution is required by law to review the Study for potentially discoverable information, see AE 206U, and to request substitutions and other relief from the Commission using the M.C.A.’s classified information procedures as necessary to protect national security information while also ensuring that an accused can confront the charges and evidence and can raise lawful defenses.
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We thank the Soldiers, Sailors, Airmen, Marines, Coast Guardsmen, and government civilians of Joint Base Andrews, Joint Task Force Guantanamo, and Naval Station Guantanamo Bay for their continuing support to these proceedings in the coming week. And we close this evening as we began: honoring the sacrifices of our all-volunteer armed forces and our fallen heroes, including those who died in the service of their country on September 11th and aboard the USS COLE (DDG 67) in October 2000.