Mark Martins Comments on Nashiri Motions Hearing

Chief Prosecutor Mark Martins

Remarks at Guantanamo Bay on 12 April 2012

Good afternoon.  Today, the military commission convened to try the charges referred to it against Abd Al-Rahim Hussayn Muhammad al Nashiri held another in a series of pre-trial sessions without a jury present.  The judge heard argument and considered the remainder of twenty-four different motions and other matters raised by the defense and the prosecution.  Categories of matters taken up today included:

• First, the judge heard renewed defense motions objecting to the government’s ex parte application seeking safeguards of national security information under the Military Commissions Act of 2009 (Appellate Exhibits 35, 42, and 43).  The judge denied one defense motion as not ripe and directed the steps and a revised timeline—consistent with the classified information procedures of that Act—that the parties would use to ensure that substitute classified summaries of documents protect both the accused’s ability to fully prepare his defense and the government’s obligation to protect national security information.

• Second, a series of motions relating to discovery, the process by which the accused learns what evidence the government has in its possession regarding the alleged offenses or material to the preparation of the defense, and the provision of experts (Appellate Exhibits 38, 40, 44, 53, 54, 56, and 57).  The judge made various rulings.  Important among these were the granting of an additional defense investigator, the order for production by the government of a cost estimate for investigating the offenses in this case, and the order that depositions be taken of witnesses in Yemen.  The process used for the taking of any depositions will be virtually identical to that used under Rule 15 of the Federal Rules of Criminal Procedure, and the deposition officer will be Judge Pohl himself.

• Third, a defense motion to object to the manner by which the government had implemented the judge’s January order relating to the delivery of legal mail to the accused through a privilege team established as a consequence of that order (Appellate Exhibit 41).  The judge ruled that the instance of the privilege team not accepting for review an early post-order communication from counsel to the accused was the result of a brief miscommunication, involved no violation of attorney-client privilege, and had been promptly dealt with by the government.

Let me say a few words about the ability to obtain witnesses and evidence under the reformed military commissions system.  The Military Commissions Act of 2009 states that “the opportunity to obtain witnesses and evidence shall be comparable to the opportunity available to a criminal defendant in a court of the United States under article III of the Constitution.”  It further states that the compulsory process used in military commissions shall be similar to that used in federal courts and shall run to any place where the United States has jurisdiction.  All officials in the federal government have an obligation within their areas of responsibility to help fulfill these requirements, which are among the fundamental guarantees of fairness and justice demanded by our values.  In addition to being presumed innocent and not found guilty of a crime unless and until such has been proven beyond a reasonable doubt, the accused has: a right to present evidence, cross-examine witnesses, and compel attendance of witnesses in his defense, the right to exculpatory evidence that the prosecution may have as to guilt, sentencing, and the credibility of adverse witnesses; the right to an impartial decision-maker; the right to exclusion of evidence that is not reliable or probative or that will result in unfair prejudice; and many other rights.  He also has the right of appeal to a federal civilian court consisting of independent judges, and ultimately to the United States Supreme Court

Contrary to the dark suggestions of some whose minds appear already made up to oppose military commissions regardless of how they are conducted, these protections are implemented by officers whom, I submit, are worthy of the public trust.  The convening authority for military commissions is duty-bound to fulfill his functions relating to the accused’s ability to obtain evidence and witnesses reasonably and fairly under the law.  Retired Vice Admiral Bruce MacDonald, the able and respected former Judge Advocate General of the Navy, takes his responsibilities in this regard very seriously.  Similarly, military judges in the commissions system are well-trained attorneys and members of a state or federal bar, with substantial training and experience in criminal trial work.  They are insulated from improper influences by a statutory prohibition of such influences, as well as by their assignment to the judiciaries of the services, separate from ordinary command channels, and their pay and benefits are based upon rank and years of active service as military officers and dictated by law and regulation.  Though they are not life-tenured, I defy anyone who studies their rulings in courts-martial or military commissions to date to say that they are not independent.

These public servants—both of whom in this case I should point out have been recalled from retirement and thus, with secured pensions, are even less distinguishable on independence grounds from life-tenured officials—fully understand the importance of resources to the conduct of a fair trial.  As stated in filings available on the website, substantial resources have been provided to the defense to assist with its preparation for trial.  The resources already provided for experts, investigators, and consultants—in excess of $100,000 to date, not including compensation for learned counsel, translators, or a fulltime investigator on the defense team, or for travel and other logistics—is comparable to or in excess of those provided the defense in civilian court and court-martial capital cases.  To be sure, the standard is justice, which can never be reduced to cost, but as Congress has stated, the fairness and effectiveness of the military commissions system, particularly in capital cases, will depend on the adequacy of defense counsel and associate resources.

A final word on the length and complexity of proceedings.  Providing an accused the real opportunity to confront the evidence and test all aspect of the case takes time.  Judges must decide motions, identifying the facts and applying a well-developed body of law and precedent after hearing argument from the parties.  Federal trials have stretched years in similar situations.  Those who state or imply that what you are seeing here would not happen in the federal system are simply wrong.  And as in similar situations in federal court, these trials, even if numerically few, implicate hugely important national interests, and they thus fully vindicate the energy and expense invested.  Not only must we continue to pursue the truth for the victims of these bombings, 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.

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Once again, I would like to recognize the logistical support and the professionalism of the Coastguardsmen, Sailors, Soldiers, Marines, and Airmen of Joint Task Force Guantanamo.  A major criminal trial proceeding, conducted in accordance with our laws and our values, requires much of any community.  This one is no different.