Nashiri Motions Hearing #11: Mark Martins Statement

Chief Prosecutor Mark Martins

Remarks at Guantanamo Bay on 11 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 panel members present.  Such sessions—in the same manner that a federal district court hearing a criminal case will do prior to the seating of a civilian jury—enable the hearing of various matters in an orderly, methodical way for resolution by the judge prior to trial.  This adversarial process is consistent with the fair, transparent, and accountable administration of justice under the rule of law.

The judge called the commission into session without panel members to begin to consider a total of some two dozen different motions and other matters raised by the defense and the prosecution.  I will briefly list the matters addressed today:

• First, a government motion requesting that the military commission inquire into whether Mr. Paradis can provide adequate representation to Mr. Al Nashiri in light of his concurrent representation of a named co-conspirator, Ali Hamza Ahmed Suleiman Al Bahlul (Appellate Exhibit 59).  The judge ruled that he would review ex parte a submission by Mr. Paradis in connection with this motion.

• Second, a series of motions by defense alleging that the Military Commissions Act and charges against Mr. Al Nashiri pursuant to that Act violate the law.  Specifically, the defense alleged that the Act denies Mr. Al Nashiri equal protection by limiting the jurisdiction of military commissions to alien unprivileged belligerents (Appellate Exhibit 46) and violates Common Article 3 of the Geneva Conventions for the same reason (Appellate Exhibit 47), and that the conspiracy and terrorism charges against Mr. Al Nashiri are not violations of the law of war triable by military commission or, in the alternative, are ex post facto laws (Appellate Exhibits 48, 49, 50, and 51).  The judge heard argument and deferred ruling until a later time.

• Third, a defense notice of intent to disclose classified evidence at the hearing in connection with its renewed motion to require Joint Task Force Guantanamo to allow Mr. Al Nashiri to be totally unrestrained during meetings with his attorneys and with a motion seeking to compel the Joint Task Force Commander to permit the accused to sleep overnight during hearings near the courtroom rather than in the camp (Appellate Exhibit 62).  The renewed motion was Appellate Exhibit 26C.  Notice of intent by the defense to disclose classified evidence was contained in Appellate Exhibit 26C itself as well as in Appellate Exhibit 63.  The judge ruled that the provision of a visitation room permitting the accused to be unrestrained and enabling him to communicate with his attorneys without touching them was a reasonable accommodation on the restraint motion and that Appellate Exhibit 26C was mooted.  Another reasonable accommodation of the Joint Task Force mooted the defense motion regarding overnight stays.

Prior to hearing argument on the restraint and overnight housing motions, the judge heard argument from Mr. David Schulz, an attorney representing ten print media organizations and objecting to closure of proceedings in the case.  The judge affirmed his commitment to complying with the law and rules for military commission, which like federal civilian trials are presumed public.

Let me spend a bit more time on the matter of public access to proceedings.  As I have said before in this very room, criminal trials under the United States federal system of criminal justice—including military commissions—are to be publically held.  There is a significant public interest in understanding the basis of decisions made by its government.  But the right of public access is not absolute.  That right, important as it is, must be balanced against the accused’s right to a fair trial and also against the need to protect critical national security and other public interests.  Several rules govern the protection that our criminal justice system—including reformed military commissions—provides to certain information, and these were reiterated today by Mr. Schulz:

• Any non-disclosure of information, or closure of proceedings, must be narrowly tailored, employing measures short of complete closure whenever possible to protect the information while allowing public access to sufficient information to understand the proceedings and the basis for non-disclosure;

• The non-disclosure of information or closure of proceedings must be based on findings of fact about the overriding public interest requiring it, announced on the record by the judge, with the entire matter preserved for appellate courts to be able to review decisions related to the closure;

• The non-disclosure of information or closure of proceedings cannot be justified on the grounds that the information reveals the breaking of the law or is a source of embarrassment to the government or one or more officials;

• Disclosure to an accused and his counsel is one matter, and disclosure to the public is another; the guarantee of a fair trial will may well call for disclosure to the accused through discovery of information entrusted to the government’s custody that is not to be freely passed to the public prior to trial.

These rules summarize a well-developed body of law and precedent that military commissions, like federal courts and courts-martial, must apply to each individual case, ensuring the balance of free press, fair trial, and public interest in matters such as national security and individual privacy. I note that the Classified Information Procedures Act—which applies to federal courts when proceedings are closed, as they not infrequently are during international terrorism cases in civilian trials—forms part of that body of law and precedent.  The same classified information procedures were included in the 2009 Military Commissions Act.  “CIPA,” as this set of rules is called, was first enacted by Congress in 1980 to address the problem known as “graymail,” in which an accused with knowledge of classified information could place the people and government on the horns of a dilemma: disclose information that could be harmful to national security or sacrifice the opportunity to hold the accused fully accountable under law for his alleged crimes.  CIPA addressed this problem of graymail by directing judges to use various remedies to prevent disclosure while also preserving the ability to prosecute by ensuring the accused could confront the evidence against him.  These remedies include requirements of advance notice of intended disclosure, conferences ahead of such disclosure, and procedures to enable substitutions of declassified or lower classification summaries.  CIPA has worked well for its intended purpose, but it does not by itself address the public’s right to observe the proceedings.  That is, despite CIPA, an accused with knowledge of classified information can close a hearing if determined to disclose the sensitive sources or methods or other national security information.  Fortunately, none of today’s hearing was closed, because when the military judge conducted a hearing to determine whether the information notified by the defense was relevant, the defense no longer sought to have the accused disclose classified information.  This was the accused’s choice upon advice of counsel, and he continues to have every opportunity to present information in his behalf, as the military judge emphasized. In accordance with the principles I described earlier, we would have sought to further minimize the effects of any closure that might have taken place, including by the release of a transcript of as much of the closed proceeding as possible, and bifurcating any hearing to minimize closure to the narrowest amount consistent with protecting national security.

In closing, I want to commend the daily professionalism of the Coastguardsmen, Sailors, Soldiers, Marines, and Airmen of Joint Task Force Guantanamo and the others who make these adversarial and law-governed proceedings possible.