Statement from the Chief Prosecutor on This Week's Hearings in Al-Nashiri

Good afternoon. Yesterday was Memorial Day, and so I pause to honor the sacrifices of our all-volunteer armed forces and our fallen heroes, including those who died in the service of their country aboard the USS Cole (DDG 67). They—and the families and friends who keep their memories alive and patiently await a sustainable justice under law—inspire us all. Abd Al Rahim Hussayn Muhammad Al Nashiri stands charged with serious violations of the law of war for his alleged role in attacking USS Cole (DDG 67) and MV Limburg and in attempting to attack USS The Sullivans (DDG 68). I emphasize that the charges against Mr. Al Nashiri are only allegations. He is presumed innocent unless and until proven guilty beyond a reasonable doubt. I also emphasize that matters under consideration by a military commission in this or any other particular case are determined by the presiding judge. This week, the Military Commission convened to try Mr. Al Nashiri will hold another series of sessions without panel members present. In these sessions, the Commission and the parties will continue their work to resolve legal and evidentiary disputes in an orderly and methodical way as we proceed toward trial. Although a recent order by the Commission now has adjusted the commencement of trial on the merits from December of this year to February of next year (Appellate Exhibit 45FF), significant work remains underway. Here are just a few examples of that work: • More than 240,000 pages of 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 the defense under protective orders long in effect in this case. • The parties have briefed in writing 298 motions and have orally argued some 227 motions in previous pre-trial proceedings. • Of the 298 motions briefed, 30 have been mooted, dismissed, or withdrawn; 188 have been ruled on by the Commission; and an additional 70 have been submitted for and are pending decision. • The Commission has now received testimony from 10 witnesses in more than 14 hours of testimony, with all witnesses subject to cross-examination, to assist it in deciding pre-trial motions. • The parties have filed 31 exhibits and 18 declarations alleging facts and providing references to inform the Commission’s consideration of the issues. The Judge’s order listing the motions currently on the docket is publicly available on the military commissions’ website. It is Appellate Exhibit 273A. The Judge has indicated his intent to consider, among other issues, Appellate Exhibit 120D, the Government Motion To Reconsider AE 120C In Part So The Commission May Take Into Account Declassification EffortsUnderway At Prior Prosecution Request, Clarify The Discovery Standard The Commission Is Applying, And Safeguard National Security While Ensuring A Fair Trial. Because both parties expect to discuss classified information when presenting oral argument on the Appellate Exhibit 120 series of pleadings, the Judge has indicated his intent to conduct an in camera hearing to determine if a closed session is necessary, and he will set forth the basis for his determination in writing. A determination to close some portion of a proceeding is justified if necessary to protect information the disclosure of which could reasonably be expected to damage national security. In such event, the parties will litigate the merits of the underlying motion in a closed session in accordance with Military Commission Rule of Evidence 806. To date, the Commission has held four closed sessions. These sessions are not completely closed, as the Judge makes available to the public the entire transcript of that session, excising only classified information. Even if we were to assume that these sessions were completely closed, total closure to date would comprise about five percent of the proceedings. Many of the filings the parties will litigate this week are available on the military commissions’ website and on the DVDs we continue to provide the media and private advocacy groups here in Guantanamo Bay and at the viewing site in Ft. Meade in Maryland. As one distinguished member of the “tribe” of journalists (as she calls them) recently urged, I too encourage you all to read the briefs and the footnotes in them and to hear each side of the contested issues. Such scrutiny is a formidable source of accountability upon the administration of justice and serves as a catalyst, contributing to the public’s understanding of the rule of law.