Statement from the Chief Prosecutor Regarding This Week's Hearing in the 9/11 Case

Khalid  Shaikh  Mohammad,  Walid  Muhammad  Salih  Mubarak  Bin  ‘Attash,  Ramzi  Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi stand charged with Attacking Civilians, Attacking Civilian Objects, Murder in Violation of the Law of War, Destruction of Property in Violation of the Law of War, Hijacking or Hazarding a Vessel or Aircraft, Terrorism, and Conspiracy in connection with the attacks on our nation on September 11, 2001.  These attacks resulted in the deaths of 2,976 persons. We acknowledge the desire for justice under the rule of law felt by so many who are observing these proceedings, including the survivors and victim family members for whom fair, open, and accountable trials are worth the effort, however long they may take.  In addition to those who will observe from stateside viewing sites, some family members of victims traveled here to witness the proceedings.  We welcome them and appreciate what this week means to them. We also welcome those in the media and non-governmental organizations who traveled here to attend the sessions.  Through you and through closed-circuit transmission, the public observes and better understands the legal issues in dispute.    In sessions without panel members, the judge considers various pre-trial legal matters the parties have raised in court filings.  The law in all U.S. courts requires that such matters be addressed and that the disposition of each issue be placed on the record.  This methodical and adversarial process is the same in a federal district court before seating a civilian jury and in a court-martial before assembling the members. The military judge’s order providing the sequence of the motions is available on the military-commissions website (Appellate Exhibit 59I), as are all of the parties’ pleadings for the issues that the Commission will consider.  The Commission released to the public the pleadings that the parties will argue this week.  Observers of commissions have noted that publicly releasing these pleadings as soon as possible prior to the hearings promotes wider understanding of the proceedings.  The government has also made available binders containing written copies of all the pleadings to the media and non-governmental organizations attending the sessions in Guantanamo.  Many government officials and employees continue to work hard to implement the policies and practices necessary for transparency. The motions to be taken up this week raise issues involving the production and protection of discovery, the presence of the accused, and public access to the Commission’s proceedings.   Review of the briefs and attendance at oral arguments in the coming week by members of the media will enable you to hear all sides of these motions and thus fulfill your professional obligation to avoid reporting only one perspective of any contested issue.  Such diligence is important.  Although there are some issues on which the government and counsel for the accused agree, there are also areas of disagreement.  The facts and legal rationale of each matter will be duly considered by the judge, but there is also great benefit in your independent consideration and, through you, in consideration by the wider public that is interested in this significant trial. I will comment briefly on three broader issues regarding reformed military commissions. First is the legal concept of relevance.  The parties have the right to present evidence that is “relevant and necessary.”  They have no right to present irrelevant matters.  The party seeking to present a matter as evidence, including witness testimony, must demonstrate that the matter is both relevant and necessary.  Permitting parties to present matters that are irrelevant would unduly burden society in an intrusive and costly way.  That is just as true in federal courts and courts-martial as it is in military commissions. Evidence is relevant and necessary where it contributes to a party’s presentation of the case in some positive way on a matter in issue.  For example, with respect to a charge of Terrorism under the Military Commissions Act of 2009, the elements of that offense include (1) intentionally killing or inflicting great bodily harm on one or more protected persons or engaging in an act that evinces a wanton disregard for human life and (2) doing so in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct.  So evidence, like witness testimony, that contributes  to  one  side  or  the  other’s  presentation  of the case on whether the accused intentionally killed protected persons would be relevant and necessary.  Similarly, evidence showing that the killing was done in a manner calculated to intimidate the civilian population would be relevant and necessary. The same standard applies to affirmative defenses.  For example, in military commissions, if the accused can show that he was unable to appreciate the nature and quality or the wrongfulness of his acts as a result of a severe mental disease or defect, these facts could support an affirmative defense. So evidence tending to contribute to the accused’s presentation  of the case on the question of his mental capacity would be relevant and necessary. Put another way, the focus of the trial is, as it should be, on the guilt or innocence of an accused on the charges alleged.  All information that may tend to exculpate an accused, including classified information, must be provided to the defense in discovery so that the accused has the opportunity to challenge the case against him. I reiterate that the law clearly holds that no statement obtained as a result of torture or cruel, inhuman, or degrading treatment will be admissible as evidence against an accused.  And any assertion that the Military Commissions Act of 2009 expressly permits the admissibility of so-called “derivative evidence” obtained as a result of torture or cruel, inhuman, or degrading  treatment is false.  The Military Commissions Act of 2009 safeguards against the admission of such evidence through the totality-of-the-circumstances  test  and  the  “voluntariness”  determination under section 948r.  And any new information uncovered about post-capture treatment will be made known to the appropriate authorities tasked with investigating allegations regarding  the  accused’s  treatment.  However, there may be instances where post-capture treatment is not relevant to the alleged charges. Some have complained that the rule of relevance will be applied to assure that no evidence of an accused’s post-capture treatment will be heard in their cases.  This is false.  Defense counsel could offer evidence of post-capture treatment that may be relevant and necessary to the consideration of whether statements made to authorities were voluntary.  Were an accused to be convicted, evidence of post-capture treatment could mitigate the offense and thus be relevant and necessary to the determination of a just sentence.  These are just two examples in which a military commission will not shrink from examining post-capture treatment that is relevant and necessary to the matters before it. I emphasize that the charges before a military commission are only allegations and that an accused is presumed innocent unless and until proven guilty beyond a reasonable doubt. Second, as most of you are aware, some defense counsel asked the Commission to delay this  week’s  hearings, contending that environmental conditions rendered their office space uninhabitable.   The government takes concerns regarding the habitability of all working spaces seriously.  In response to the defense’s concerns, qualified officials from the Industrial Hygiene Department of the U.S. Naval Hospital Guantanamo Bay assessed the buildings in question.  The Joint Task Force Preventive Medicine Department also conducted a rodent survey.  Following the assessments, the office space was certified as habitable, and the buildings were cleared for resumption of normal working operations.  The government provided the Commission and the defense the memoranda and reports regarding the hygiene assessment and the rodent survey.  And just last Friday, after having examined the assessments, the Commission denied the defense motion to delay this week's hearings (Appellate Exhibit 82H). The focus of the trial can thus remain, as it should, on the guilt or innocence of the accused and not on counsel accommodations.  Again, while taking seriously the genuine needs of counsel to fulfill their professional responsibilities, the quality of justice is not determined by physical trappings. Finally, as you may know, I have previously described the categories of criticisms levied against reformed military commissions.  These criticisms can be summarized by six “Uns”:  that military commissions are unfair, unsettled, unknown, unbounded, unnecessary, and un- American.  Recently, we heard a seventh “Un”—that entirely apart from fairness considerations or any of the other “Uns,” reformed military commissions are unpopular and therefore doomed to futility or purposelessness. The purpose is clear.  The work is worthy.  The Congress of the United States, representing the sovereign will of the American people, has repeatedly demonstrated strong support for these military-commission trials.  Similarly, two Presidents of the United States, elected by the American people, have signed successive acts regarding military commissions into law.  It is increasingly clear that military commissions have an important, albeit narrow, function within United States national security and justice institutions.  The suggestion that they are unpopular thus merits one or more “Uns”  in  reply:  unsupportable, and in any event unauthoritative as an expression of the people’s will in a constitutional democracy. In closing, I would like to recognize the daily professionalism of the Coastguardsmen, Sailors, Soldiers, Airmen, and Marines of Joint Task Force Guantanamo.