Statement of Chief Prosecutor on Pre-Trial Motions in Al-Nashiri Case

CHIEF PROSECUTOR MARK MARTINS

REMARKS AT GUANTANAMO BAY

26 FEBRUARY 2014

Twenty-one years ago today, at this hour, the World Trade Center in New York City was bombed. Two individuals drove an explosives-laden van into the parking garage under the North Tower and then timed the bomb to detonate minutes later. At about 12:18 that afternoon, the bomb exploded, killing six people, injuring more than one thousand others, and causing upwards of $500 million in property damage. The two individuals fled from the United States. They were indicted for their role in the bombing, arrested abroad, and returned to stand trial for these charges. One of the individuals and two others were also charged with various crimes related to their conspiracy to bomb U.S. airliners in Southeast Asia in 1994 and 1995. A jury found the four individuals guilty on all counts against them. Several other individuals were also indicted, tried, and convicted for their role in the attack on the World Trade Center. The 21st anniversary of that attack reminds us what we have learned from the ensuing two decades. Among the important things learned has been that all lawful instruments of national power and authority—including law enforcement, diplomacy, intelligence, economic measures, and, in certain circumstances, military force—must be employed to protect the people of an open society. And our range of national security and justice institutions must continue to provide for open, rigorous, and fair trials of individuals for specific charged crimes whenever feasible as part of the pursuit of accountability under the rule of law. Over the past two weeks, the Military Commission convened to try the charges against Abd Al Rahim Hussayn Muhammad Al Nashiri continued its consideration of various pre-trial issues raised by the defense and the prosecution. I emphasize that Mr. Al Nashiri is presumed innocent unless and until proven guilty beyond a reasonable doubt. The Judge examined the parties’ written briefs on 38 motions and heard oral argument on 37 motions. To date, the parties have briefed 227 motions and have orally argued some 141 substantive motions. Of the 227 motions briefed, 28 have been mooted, dismissed, or withdrawn; 177 have been submitted for decision; and 141 have been ruled on by the Judge. Motions argued, once ruled upon, will settle outstanding disputes regarding, among other issues, the charges against the Accused and will continue to move the case forward toward trial. In three motions, the Judge granted some form of relief.

• Appellate Exhibit 045O, a defense motion to continue milestones set forth in Appellate Exhibit 045H for 150 days. The Judge reaffirmed that the deadline remains April 1, 2014 for submission of law motions and took the remainder of the scheduling matters raised by the motion under consideration.
• Appellate Exhibit 168, a defense motion to dismiss charges VII-IX (attacking civilians, attacking civilian objects, and hijacking or hazarding a vessel or aircraft) for lack of jurisdiction under international law. The Judge granted the defense request to submit a supplemental brief and then directed that such brief be filed by March 7, 2014, with the prosecution’s response due by March 14, 2014.
• Appellate Exhibit 188, a government motion to reconfirm for the record all periods of delay are excludable under R.M.C. 707. The defense did not object to the relief requested by the government.

On the remaining 35 docketed and fully briefed motions, the Judge either heard oral argument or acknowledged the withdrawal of a request for oral argument and then took the matter under advisement.

• Appellate Exhibit 048G, a government supplemental filing to the government’s response to a defense motion to dismiss Charge V (conspiracy). The defense withdrew its request for oral argument.
• Appellate Exhibit 120, a defense motion to compel discovery of information in the possession of any foreign government and the United States regarding the arrest, detention, and interrogation of the Accused.
• Appellate Exhibit 167, a defense motion for appropriate relief to apply the evidentiary provisions of the UCMJ and 2002 M.C.M. as required by the Ex Post Facto Clause.
• Appellate Exhibit 169, a defense motion to dismiss Charge IX (hijacking or hazarding a vessel).
• Appellate Exhibit 171, a defense motion for appropriate relief to compel defense examination of the Accused’s conditions of confinement.
• Appellate Exhibit 172, a defense motion to prevent the Convening Authority from assembling panel members.
• Appellate Exhibit 173, a defense motion for appropriate relief arguing that 10 U.S.C. § 948i(b) is unconstitutional as applied.
• Appellate Exhibit 174, a defense motion to dismiss Charge IV, Specification 2 (terrorism), and Charges VII-IX (attacking civilians, attacking civilian objects, hijacking or hazarding a vessel) for failure to state an offense.
• Appellate Exhibit 176, a defense motion to dismiss capital referral of perfidy and hazarding a vessel under the Eighth Amendment.
• Appellate Exhibit 177, a defense motion to prohibit capital punishment under the Ex Post Facto Clause for intentional murder or conduct evincing a wanton disregard for human life.
• Appellate Exhibit 178, a defense motion for appropriate relief to grant Mr. Al Nashiri access to an expert consultant or abate proceedings.
• Appellate Exhibit 179, a defense motion to apply the capital sentencing scheme set forth in R.C.M. 1004 and the 2002 M.C.M. under the Ex Post Facto Clause.
• Appellate Exhibit 180, a defense motion to dismiss capital referral of all charges because the sentencing scheme set forth in the M.C.A. and R.M.C. 1004 violates the Eighth Amendment.
• Appellate Exhibit 181, a defense motion to dismiss capital referral of all charges, arguing that the defendant has not been, and will not be, granted access to classified evidence presented to the Commission.
• Appellate Exhibit 183, a defense motion to dismiss capital referral for failing to obtain a grand jury indictment in violation of the Eighth Amendment.
• Appellate Exhibit 184, a defense motion to subpoena Jose Rodriguez under R.M.C. 703(e)(2)(A).
• Appellate Exhibit 185, a defense motion to strike the death penalty from the case because imposing death for war crimes is no longer civilized under international law.
• Appellate Exhibit 186, a government motion for the Commission to take judicial notice of adjudicative facts.
• Appellate Exhibit 187, a defense motion to change the place of trial or abate the proceedings.
• Appellate Exhibit 189, a defense motion for the Commission to consider the defense request for an explosives expert in camera, ex parte and to compel the Convening Authority to approve funding for the expert as a defense consultant.
• Appellate Exhibit 190, a defense motion for the Commission to consider the defense expert request in camera, ex parte and to compel the Convening Authority to fund a jury consultant.
• Appellate Exhibit 191, a defense motion to strike additional aggravating factor #6.
• Appellate Exhibit 192, a defense motion to strike additional aggravating factor #7.
• Appellate Exhibit 193, a defense motion to strike additional aggravating factor #5.
• Appellate Exhibit 194, a defense motion to strike additional aggravating factor #4.
• Appellate Exhibit 195, a defense motion to strike additional aggravating factor #3.
• Appellate Exhibit 196, a defense motion to strike additional aggravating factor #2.
• Appellate Exhibit 197, a defense motion to dismiss for unlawful command influence.
• Appellate Exhibit 198, a government motion in limine to exclude from sequestration victims that may testify during any potential penalty phase of the trial.
• Appellate Exhibit 199, a government motion for the Commission to permit government testing of DNA evidence.
• Appellate Exhibit 200, a defense motion to strike the death penalty from this case because the imposition of death for war crimes is no longer an acceptable punishment under international law.
• Appellate Exhibit 201, a defense motion for appropriate relief to find R.M.C. 1001(g) violates the Ex Post Facto Clause as applied to Mr. Al Nashiri.
• Appellate Exhibit 202, a government motion requesting a scheduling order requiring the defense to provide notice of its intent to introduce mental-health evidence.
• Appellate Exhibit 205, a defense motion to abate the proceedings until Mr. Al Nashiri receives adequate medical care.
• Appellate Exhibit 207, a government motion in limine for the Commission to admit evidence.

Last week, the Commission held two in camera hearings under Military Commissions Rule of Evidence 505(h) to make a determination regarding the use, relevance, or admissibility of classified information the parties sought to discuss during a future session on the merits of Appellate Exhibits 120 and 181. Once the Judge grants a request to hold a Rule 505(h) hearing about classified material that may relate to a motion to be litigated later, the parties will not litigate the merits of the underlying motions themselves—that takes place in a session later, and such sessions are to be as open as possible. After holding the in camera hearings, the Judge issued Appellate Exhibits 128C and 181E, ordering supplemental argument in closed session on Appellate Exhibits 120 and 181, respectively. The Judge determined that closing a portion of the proceedings to the public is necessary—and will be narrowly tailored—to protect only “information the disclosure of which could reasonably be expected to damage national security, including intelligence or law enforcement sources, methods, or activities.” AE 128C at 1; AE 181E at 1. The Judge explained that the closed session “is an interlocutory legal proceeding and does not relate to evidence the Prosecution intends to introduce on the merits of the case.” Id. The closed session regarding Appellate Exhibit 120 lasted one hour and fifty-one minutes. The closed session regarding Appellate Exhibit 181 lasted one hour and ten minutes. The Judge ordered a transcript of both sessions to be provided to the public, excising only classified information. To date, the Commission has held three closed sessions.

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For their support to holding these commissions, I commend the daily professionalism of the Soldiers, Sailors, Airmen, Marines, and Coast Guardsmen of Joint Task Force Guantanamo.