October 15 Commissions Session Statements from the Chief Prosecutor and KSM's Attorneys

Mark Martins, Chief Prosecutor for the military commissions, has issued a statement regarding today's proceedings in United States v. Mohammed et al.  His remarks begin as follows:

Good afternoon.  Today, the military commission convened to try the charges against Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi held a session to consider pre-trial issues raised by the defense and the prosecution.  I will briefly list these issues, as they were heard, along with any results decided by the Commission.

• First, a defense motion seeking to compel appointment of an additional learned counsel for Mr. Hawsawi’s defense.  (Appellate Exhibit 30.)  After hearing oral argument, the Commission took the motion under advisement.
• Second, a government motion for the Commission to inquire into a potential conflict of interest of a defense-team member.  (Appellate Exhibit 53.)  The Commission inquired into the potential conflict and questioned Mr. Binalshibh and Mr. al Hawsawi about whether they understood and waived that potential conflict.  After finding that they indeed waived it and that the waiver was knowing and intelligent, the Commission ruled that the defense-team member could represent Mr. al Hawsawi.
• Third, a government motion regarding the accused’s presence during the Commission’s proceedings.  (Appellate Exhibit 37.)  The Commission ruled that while the accused have a fundamental right to be present, they may voluntarily waive that right for a particular session during pre-trial proceedings involving questions of law. 

There's also a statement from Jason Wright and David Nevin, lawyers for Khalid Sheikh Mohammed.  It provides, in full:

MILITARY COMMISSIONS ARE UNFAIR, UNSETTLED, UNKNOWN, UNBOUNDED, UNNECESSARY, AND UN-AMERICAN Military Commissions continue this week in Guantanamo where lawyers will argue a variety of pre-trial motions seeking clarity on a system fraught with uncertainty and unanswered questions. Guantanamo Bay, Cuba - Over 200 years of thoroughly litigated American federal law has been thrown out for an untested military commissions system in Guantanamo. David Nevin, defense counsel for Mr. Khalid Shaikh Mohammad, said, "I agree with the Chief Prosecutor, Brigadier General Martins, that these cases are extremely important. Unfortunately, the system created here is wholly inadequate to the task of resolving them." Among the many problems facing these tribunals, the trials deviate from established federal and military law: .       There is no statutory right to a speedy trial. 10 U.S.C. § 948b(c). .       There is no right to remain silent and coerced confessions may be admitted. 10 U.S.C. § 948b(c). .       There is no grand jury requirement or equivalent process (called an Article 32 hearing for courts-martial) for securing the right to indictment and presentment. 10 U.S.C. § 948b(c). .       The freedom from unreasonable searches and seizures is limited as evidence obtained without a search warrant or other lawful authorization may be admitted. 10 U.S.C. § 949a. .       The prohibition against ex post facto laws (i.e. the principle of illegality) does not apply. 10 U.S.C. § 950p. .       Hearsay evidence is admissible.  10 U.S.C. § 949a(b)(3)(D). .       The defense is not entitled to "equal" access to witnesses and evidence as per court-martial practice, but "reasonable" access. 10 U.S.C. § 949j. .       The courts-martial pre-trial practice that allows for the dismissal of charges or other sentencing relief for unlawful pre-trial punishment is not included in the Military Commissions Act. .       The trial judiciary is a component of the Executive Branch, and as such, does not function independently consistent with the requirements for federal trials under Article III of the Constitution. Nevin explains, "The Military commission are so far outside our established notions of justice and due process, the extraterritorial application of the individual liberties contained in the U.S. Constitution (such as the 4th, 5th, 6th, and 8th Amendments) remains an open question. We have to spend our time arguing with the government this week as to whether or not the Constitution even applies at all." Pre-trial hearings are scheduled in Guantanamo this week from October 15-19, 2012.