Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

Statement from Military Commissions Chief Prosecutor Mark Martins

Susan Hennessey
Tuesday, February 16, 2016, 10:36 AM

Military Commissions Chief Prosecutor Mark Martins issued the following statement on Saturday, February 13th:



13 FEBRUARY 2016

Published by The Lawfare Institute
in Cooperation With

Military Commissions Chief Prosecutor Mark Martins issued the following statement on Saturday, February 13th:



13 FEBRUARY 2016

Good evening. “Have an amazing day at school. Remember that I love you, and I’ll see you later.” These were the last words Suzann Cayne heard from her father, Jason Cayne, as she got ready for school and completed her daily routine. That day would turn out to be anything but routine. She lost her father that September 11th morning on the 104th floor of One World Trade Center. Suzann was just seven years old then. Now she is older than the age of her mother, Gina, when Gina married Jason. Although the passage of time does little to make the hurt go away, Suzann and Gina have kept the memory of Jason alive, starting a foundation in his name to provide counseling and pro bono legal and financial advice to more than 60 families. Their presence here today—as survivors committed to seeking a sustainable justice under law—is another fitting tribute to the life Jason lived. We are humbled by their resolve, and draw strength from their example, as we continue working seven days a week to complete the job committed to our care.

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.

During the period since our last series of pre-trial sessions in December 2015, the Military Judge issued an order denying the defense motion to dismiss the case for an alleged defective referral. AE 8NNN. That motion, it should be noted, was the longest pending motion in these proceedings, having been filed before arraignment of the Accused on 5 May 2012 and urged by defense counsel for oral argument at the arraignment itself. Also since our last in-court proceedings, the Military Judge issued a written order with his separate finding—first announced in court on 26 October 2015—that “there is no actual conflict of interest or potential conflict of interest with respect to” learned counsel for Mr. Binalshibh and his defense team. AE 292JJJJ at 12-13. The Judge had recessed much of the in-court activity last year and during the latter months of 2014 to resolve issues related to a joint defense motion asking the Commission to inquire into possible conflicts of interest between defense-team members and the Accused as a result of a reported FBI investigation into Mr. Binalshibh’s defense team. With the Judge’s finding that no conflict exists, the in-court proceedings resumed, and the parties resolved other longstanding matters. Their resolution culminated in the Judge rescinding his order to sever Mr. Binalshibh’s case from the other four cases, AE 312D, and finding that Mr. Binalshibh “does not suffer from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of his case,” AE 152KK at 9.

The resolution of these longstanding matters also culminated in all cleared defense-team members signing the Memorandum of Understanding Regarding the Receipt of Classified Information (“MOU”) as the predicate for receiving classified information from the government. See AE 13BBBB. Within days of their signing the MOU—a standard requirement in national security cases—the prosecution promptly began providing the Defense classified information in accordance with the Military Commissions Act of 2009 (“M.C.A.”). To date, more than 320,000 pages of unclassified material and thousands of pages of classified material comprising the government’s case against the Accused, as well as material required to be disclosed to the defense under the government’s affirmative discovery obligations, have been provided to each of the defense teams.

In addition to this material, the government is preparing to provide the defense a remaining amount of information that is small in proportion to what has already been provided, but is nevertheless still 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 M.C.A., to prevent damage to national security. The prosecution will invoke these procedures by submitting proposed substitutions and other relief to the Military Judge for his approval. 10 U.S.C. § 949p-4(b)(1)-(3); see 10 U.S.C. § 949p-6(d). This process requires the Military Judge to fashion particularized relief for each item of information that remains classified. 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 national security.

In the Amended Docket Order, the Judge has indicated his intent to hear argument on motions to compel the prosecution to produce additional information and, in particular, certain information relating to the Central Intelligence Agency’s former Rendition, Detention, and Interrogation (“RDI”) Program. Some of this information is public; on 9 December 2014, the Senate Select Committee on Intelligence made public the 517-page Executive Summary of its Study on the CIA’s former RDI Program. Other of this information remains classified under the Third Amended Protective Order #1 To Protect Against Disclosure of National Security Information. During the December 2015 sessions, the prosecution moved the Judge to consolidate and defer, until the February 2016 sessions, argument on all motions to compel the production of information relating to the former RDI Program. The Judge granted the motion and included the prosecution’s consolidation proposal (AE 397) on the Amended Docket Order (AE 402A).

The Defense has notified the prosecution it reasonably expect to disclose, or cause the disclosure of, classified information in connection with these motions to compel, among other motions. See AE 402C (AAA). The Defense has also moved the Judge to conduct a hearing under Military Commission Rule of Evidence (“M.C.R.E.”) 505(h) to make a determination regarding the use, relevance, or admissibility of this classified information. Id. In his Amended Docket Order, the Judge indicated his intent to conduct such a hearing “[i]f required . . . at times to be determined.” AE 402A at 4. If the Judge decides to conduct an M.C.R.E. 505(h) hearing 3 in camera about classified material that may relate to a motion to be litigated later, the parties will not litigate the merits of the underlying motion itself—that takes place in a session later, and such sessions are to be as open as possible. One purpose of such a hearing, which in cases involving fewer defense lawyers and prosecutors can often be held in a judge’s chambers, is to isolate and minimize that portion of proceedings that truly may need to be closed.

The Judge may determine that there is a need to conduct a closed session under Rule for Military Commissions 806. If so, this closure of the proceedings from the public must meet the same strict criteria demanded in federal civilian criminal trials—namely, the Press-Enterprise II factors—and thus must be as narrowly tailored as possible, preserving on the record the rationale and basis for civilian appellate court review. This means that the proceedings must be open unless (1) there is a substantial probability that an overriding interest will be prejudiced if the proceedings remain open; (2) closure is no broader than necessary to protect the overriding interest; (3) reasonable alternatives to closure were considered and found inadequate; and (4) the judge makes case-specific findings on the record justifying closure. To date, the Judge has held three closed sessions. Total closure comprising these three sessions amounts to less than one percent of the proceedings to date. So, even for a pre-trial process involving several challenges and other matters implicating classified information, more than 99 percent of that process has been open to the public. The government is committed to ensuring that all its evidence presented in the case-in-chief at trial will be in open court.

Meanwhile, to date, the parties have briefed in writing some 207 substantive motions and have orally argued some 46 motions. Of the 207 motions briefed, 10 have been mooted, dismissed, or withdrawn; 96 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 28 witnesses in nearly 81 hours of testimony, with all witnesses subject to cross-examination, to assist him in deciding pre-trial motions. The parties have filed 207 exhibits and more than 100 declarations alleging facts and providing references to inform the Judge’s consideration of these issues. This information, while never meant to suggest justice can be quantified, reflects methodical movement toward trial.

Developments in United States v. Al Nashiri

The proceedings in United States v. Al Nashiri remain stayed as the President considers 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. The government filed two interlocutory appeals in that court 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 has 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. Last November, however, the D.C. Circuit had stayed proceedings in the U.S.C.M.C.R. while it considered 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-in-Chief Clause of the Constitution. Order, In re Al-Nashiri, No. 14-1203 (D.C. Cir. Nov. 12, 2014), ECF No. 1521946. On 23 June, 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 “can adequately raise his constitutional challenges on appeal from final judgment.” In re Al-Nashiri, 791 F.3d at 73. 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.

Our efforts to seek re-nomination and re-confirmation of the appellate military judges continue. The government has reported to the U.S.C.M.C.R. that 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. Also on that date, he 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 has been transmitted to the President for his consideration of their appointment as U.S.C.M.C.R. judges. If the military judges are so appointed, their appointment is expected to proceed on to the Senate Armed Services Committee for the Senate’s advice and consent. The government will further update the U.S.C.M.C.R. no later than 4 March 2016.

Meanwhile, the government continues its comprehensive review process to comply with the Commission’s 24 June 2014 Order. AE 120AA. In this Order, the Commission established a ten-category 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 former RDI Program. Id. 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 six of the ten categories, the Commission had previously approved requests for substitutions and other relief under the M.C.A. to prevent damage to national security. See AE 120NNNN. And in November 2015 the Commission approved such requests for an additional two categories. See AE 120SSSS; AE 120UUUU. On 12 January 2016, the government produced to the defense substitutions approved by the Commission. AE 120BBBBB (noting that the government produced substitutions approved in AE 120VV relating to paragraphs 13.i. and 13.j. of the Order, AE 120BBB relating to paragraph 13.c. of the Order, and AE 120FFF relating to paragraphs 13.i. and 13.j. of the Order). 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.

Developments in United States v. Abd al Hadi al-Iraqi

In July, “the Defense brought to the Commission’s attention the possibility of a conflict of interest involving one of the Accused’s previous detailed defense counsel” who represents an Accused in another military commission. AE 49I at 1. The Commission later ruled that the previous detailed defense counsel was excused from representing Mr. Abd al Hadi and that his excusal was proper. Id. at 4-5. It also ruled that there is no conflict of interest between Mr. Abd al Hadi and the excused counsel or between Mr. Abd al Hadi and his current detailed defense counsel. Id. at 7. The government asked the Commission to inquire during the September 2015 pretrial sessions whether Mr. Abd al Hadi had restored his current detailed defense counsel to full representational capacity.

During the September 2015 pre-trial sessions, Mr. Abd al Hadi “requested the release of his current detailed military defense counsel,” and the Chief Defense Counsel “approved his request.” 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” Mr. 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” Mr. Abd al Hadi. AE 53B at 1.

In accordance with that order, on 13 November, 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 is 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, requesting 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 but evinced that the session dates set forth in Appellate Exhibits 15G and 15J will remain in place at this time. AE 54D. The next sessions are scheduled to occur from 18 to 22 April 2016. AE 15J.

* * * *

For their support to these proceedings in the coming weeks, I commend and thank the Soldiers, Sailors, Airmen, Marines, Coast Guardsmen, and government civilians of Joint Base Andrews, Joint Task Force Guantanamo, and Naval Station Guantanamo Bay.

Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.

Subscribe to Lawfare