CHIEF PROSECUTOR MARK MARTINS REMARKS AT GUANTANAMO BAY 16 MAY 2016 Good evening. Tomorrow the Military Commission convened to try the charges against Abd al Hadi al-iraqi will hold its seventh pre-trial session without panel members present. Abd al Hadi is charged with committing serious violations of the law of war by conspiring with and leading others, as a senior member of al Qaeda, in a series of unlawful attacks and other offenses in Afghanistan, Pakistan, and elsewhere from 2001 to 2006. These attacks and other offenses allegedly caused death and injury to U.S. and coalition servicemembers and civilians. The charges against Abd al Hadi and each Accused mentioned in these remarks are only allegations. They 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. Although I will not comment on the specifics of any motions pending before a military commission, I will provide background for tomorrow s pre-trial sessions, and then I will survey important developments in ongoing military-commission cases. Upcoming Proceedings and Developments in United States v. Abd al Hadi al-iraqi The Military Judge had cancelled 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, 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. AE 54D. Then, in February, the Commission also cancelled the sessions previously scheduled to occur in April but rescheduled 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 Commission denied the defense motion and will hold pre-trial sessions beginning tomorrow. In his Docketing Order, the Military Judge indicated his intent to hear argument and receive evidence, as required, on Appellate Exhibit 15K, a defense motion to continue the proceedings for at least 18 months to prepare for trial. AE 55G at 2. The Docketing Order, the defense motion for a continuance, and the government s response are all available on the military commissions website. Developments in United States v. Mohammad, et al. When we last spoke in February for the pre-trial sessions in United States v. Mohammad, et al., 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 Al Nashiri Military 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 ten-category 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. 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 on 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. 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. Also in April, 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. Finally, the Judge 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. The Judge scheduled the next pre-trial sessions to occur from 30 May through 3 June 2016. The Docket Order is available on the military commissions website at Appellate Exhibit 423. 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 government has moved the U.S.C.M.C.R. to lift the stay in its 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-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 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 Al-Nashiri, 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. The next day, the government moved the U.S.C.M.C.R. to lift the stay. While the military-commission proceedings still remain stayed, 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 120GGGGG. 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. * * * * For their continuing support to these proceedings, 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.