Chief Prosecutor Mark Martin’s Remarks at Guantanamo Bay

Posted By Lawfare

Chief Prosecutor Mark Martin’s Remarks at Guantanamo Bay on 15 December 2013

Good afternoon. Since many of us last spoke in October, I have had occasion to spend some time at the 9/11 Memorial and Museum in Manhattan as well as to ascend by rapid elevator to the observation deck of the Freedom Tower, still being completed but already now the tallest building in New York City. The view from that deck, as some of you know, is substantially the same as that once obtainable from the offices of Cantor Fitzgerald at floors 101 to 105 in the former North Tower of the World Trade Center. Substantially the same, that is, as one looks north toward mid-town, and the Empire State Building, and beyond that, to the George Washington Bridge, and still further—as it was a cold but very clear day—up the Hudson River to where I thought I could almost make out the Tappan Zee Bridge. But to the south, while peering in that direction from essentially the same position at high altitude, the view is nevertheless dramatically different from that once experienced by those in Cantor Fitzgerald, as there is no South Tower looming majestically nearby. Instead, as one looks down, there are the two massive square depressions in the earth, demarcating the footprints of the two towers with what are now the largest man-made waterfalls in North America.

I want to thank Port Authority Police Department Detective Lieutenant John Ryan for making that visit to the Freedom Tower possible and for sharing memories of the many first responders he knew who died in the attacks while seeking to rescue those in the towers. I also thank Museum Memorial Director Alice Greenwald and Liz Mazucci and Jenny Pachucki, also of the Museum Memorial, for making the visit so meaningful and instructive. Meanwhile, our hearts go out to all the surviving family members of those who once worked in Cantor Fitzgerald—there were 658 in all from that firm who perished—and to the entire community of the 9/11 fallen.

To those family members and injured survivors who have made the trip to Guantanamo to witness the proceedings this week, we appreciate your abiding commitment to seeing justice under law achieved, however long it takes, and we admire your grace and dignity in the continued wake of such devastating losses.

Determined to pursue that justice, we begin the next series of pre-trial sessions in the case of Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi. These Accused stand charged with serious violations of the law of war for their alleged role in the attacks. I emphasize that the charges are only allegations, and the Accused are presumed innocent unless and until proven guilty beyond a reasonable doubt.

The Military Judge’s order providing the sequence of motions he intends to consider this week, time permitting, is available on the military commissions’ website. It is Appellate Exhibit 250. The parties’ filings for these motions, and the transcripts from prior proceedings, are also available on the website to aid the public in its assessment of the issues litigated during these pre-trial sessions without members present. We again are providing DVDs with all of the pleadings, as well as other source materials, for still greater ease of access to these documents.

Between actual sessions in court, the parties continue to accomplish significant, albeit less visible, work. Here are just a few examples:

  • The government has provided approximately 251,000 pages of unclassified discovery to defense counsel for each Accused so the Accused may meaningfully confront the charges against them. This material includes information comprising the prosecution’s case against the Accused, as well as information the prosecution must disclose to the defense under the government’s affirmative discovery obligations.
  • The parties have briefed in writing 135 substantive motions and have orally argued some 36 substantive motions in previous pre-trial sessions.
  • Of the 135 substantive motions briefed, 8 have been mooted, dismissed, or withdrawn; 74 have been ruled on by the Judge; and an additional 30 have been submitted for and are pending decision.
  • The Commission has now received testimony from 20 witnesses in more than 60 hours of testimony, with all witnesses subject to cross-examination, to assist it in deciding pre-trial motions.
  • The parties have filed 161 exhibits and 76 declarations alleging facts and providing references to inform the Commission’s consideration of the issues.

As these numbers show, despite the complexity of this case and some mistaken characterizations to the contrary, this Commission is moving slowly but methodically toward trial. During the last pre-trial sessions in October, the Commission heard oral argument on a government motion for a trial scheduling order (AE 175). It is also worth noting that even as this case continues to move methodically, so too does the military commission trial of Abd Al-Rahim Hussayn Muhammad Al Nashiri. As you may know, the Judge issued an order in that case calling for seating a jury panel next summer and trial on the merits beginning next September. United States v. Al Nashiri, AE 045H.

I recommend that interested observers review the order, as well as the Judge’s recent order denying a defense motion to delay the scheduled February and April 2014 sessions, and instead granting a government motion to schedule an additional week of sessions during those two months. Al Nashiri, AE 175E.

On the docket for this week’s pre-trial sessions are long-pending defense motions alleging that the Commission has been unlawfully influenced by senior officials (AE 008), that the death penalty charges before it were defectively referred by the convening authority who did so (AE 031), and that the Commission lacks jurisdiction over those charges under the law of war (AE 107 & AE 120). The prosecution comprehensively opposes the former two motions while significantly differing with the claims and request for relief by defense in the third. With the matters now fully briefed and all appropriate related discovery provided and witnesses examined in support of those motions, what remains is oral argument and submission for decision by the Judge. Although I will not comment on the specifics of these or other motions still before the Commission for resolution, I will discuss two broader issues regarding military commissions, which have also been the subject of recent questions by interested observers.

Pre-Trial Sessions Are Closed Only When Necessary and Justified Under the Rules

In his docketing order, the Judge indicated that, as required by law, he would conduct an in camera hearing under Military Commission Rule of Evidence 505 (h) on Monday. This is one of the procedures for handling classified information that is authorized by the Military Commissions Act of 2009 (“M.C.A.”) and that mirror those used in federal civilian prosecutions under the Classified Information Procedures Act (“CIPA”), as interpreted by Article III courts. Courts use classified information procedures when parties expect to disclose, or cause the disclosure of, classified information during litigation, for example, in a pre-trial motion. If a party expects to do so, it must notify the opposing party, who may then ask the judge to hold a “Rule 505(h) hearing.” One purpose of a Rule 505(h) hearing is often for the judge to determine whether holding a closed session under the M.C.A. and Rule for Military Commissions (“R.M.C.”) 806 is necessary and, if so, how to minimize the amount of closure.

During Rule 505(h) hearings, the judge makes “all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding.” The Rule requires the judge to hold that hearing “in camera if a knowledgeable United States official possessing authority to classify information submits to the [judge] a declaration that a public proceeding may result in the disclosure of classified information.” Unlike in sessions, the parties do not litigate the merits of the underlying motions in the hearing; as I mentioned, the hearing is simply a procedural tool that a judge uses to protect classified information while ensuring protection of a defendant’s rights and minimizing closure of proceedings to the public. The judge does this by narrowly tailoring protective measures to the classified information that, if publicly disclosed, would harm national security. Much argument on the merits of the motions can then often remain public.

Only the judge—who has a non-delegable duty to safeguard classified information—may close the proceedings. R.M.C. 806; 10 U.S.C. § 949d & 949p-1(a); see also Trial Judiciary Rule of Court 6.2; Unofficial Transcript at 1469 (available on the military commissions’ website). And even then, the judge may not do so arbitrarily or without cause. I have previously noted that embarrassment to the government is not a legal basis for closure, nor is the fact that a law may have been broken. Executive Order 13526, § 1.7. A judge may close to the public all or part of the proceedings only after finding that closure is necessary to ensure the physical safety of individuals or to protect information that, if disclosed, could reasonably be expected to cause damage to national security. AE 083A; 10 U.S.C. § 949d(c); R.M.C. 806(b)(2). The judge limits closure to the minimum necessary to achieve the balance between national security interests and the statutory right of public access implemented by Regulation for Trial by Military Commission § 19-1. AE 083A. Any time the judge decides to close a session, the commission fully preserves the record, including the reason for closure, for review on appeal.

The M.C.A. directs the judge and counsel to look to federal-court practice to balance the protection of classified information with due process for the accused. See AE 083A. To prevent disclosure of classified information, federal courts and courts-martial have closed portions of proceedings from the public. Those federal courts include, to name just a few, the U.S. District Court for the Southern District of New York in United States v. Ghailani and In re Terrorist Bombings of U.S. Embassies in East Africa; the U.S. District Court for the Northern District of Illinois in United States v. Marzook; and the U.S. District Court for the Eastern District of Virginia in United States v. Rosen, United States v. Smith, and United States v. Moussaoui. This past July, the Judge in the court-martial of Private First Class Bradley Manning held portions of the trial—including some witness testimony—in closed sessions because they involved classified information.

A rare example from these military commission proceedings illustrates how the narrow circumstances justifying closure to the public and exclusion of an accused may arise, as well as the careful analysis by which courts must consider the important interests involved. In August, the judge held a Rule 505 (h) hearing in camera to determine the use, relevance, and admissibility of classified information that the defense intended to disclose while litigating an interlocutory matter (AE 052). The hearing involved discussions of classified information, but it did not relate to the evidence the prosecution intended to introduce on the merits of the case. Id. The Commission recorded and transcribed the hearing.

After examining the pleadings and hearing oral argument to determine whether a closed session was necessary, the Judge found “[c]losure of a portion of these proceedings and exclusion of the accused for the purpose of litigating AE052 is necessary to protect information the disclosure of which could reasonably be expected to damage national security, including intelligence or law enforcement sources, methods, or activities.” AE 052 Order (memorializing the Judge’s August 19, 2013 findings on the record); see Unofficial/Unauthenticated Transcript at 4315, 4327. He further found that public disclosure of the information “could result in grave danger to national security.” Id. Narrowly tailoring the closure to protect this information, the Judge decided that he would hear argument in closed session on AE 052 only; the accused would be excluded from the closed session for purposes of litigating that motion only; the closed session would be limited to evidence and argument regarding the classified information described in the motion; and a “redacted, unclassified transcript of the closed session shall be prepared expeditiously and provided to the public in a similar manner as the unauthenticated transcripts of open sessions.” Id.

The Judge held the closed session on August 19, 2013. It lasted about 34 minutes. In accordance with the Judge’s instruction, the session was recorded and fully preserved to enable future appellate review. Within days of the closed session, the Commission made a redacted transcript of that session available to the public on the military commissions’ website. Unofficial/Unauthenticated Transcript at 4329-4359. This first-time closed session under R.M.C. 806 in United States v. Mohammad represents less than 1% of the case proceedings. Put another way, more than 99% of the case proceedings have been fully open to the public. As one scholar recently noted, the public transparency of these commission proceedings is not only extraordinary, it is historically unprecedented.

The August closed session also illustrates how classified information procedures do not create or limit discovery rights of the accused, or the public’s access to the proceedings, but rather uphold the accused’s right to obtain and present exculpatory material and the judge’s statutory obligation to protect classified information and the government’s duty to protect classified information when disclosure of that information would harm national security. Please note that regarding both hearings and sessions, courts, including this Commission, have held that no rights of an accused are violated when he is absent from a proceeding where he is unable to contribute to discussions of law. AE 136E. Strong procedural safeguards and court sessions that are as public and open as possible ensure that justice, regardless of the forum providing it, is done consistent with our values and in accordance with the rule of law.

Facilitation of Attorney-Client Relationships

The United States respects and upholds the confidential attorney-client relationship of a criminal suspect or defendant and works diligently to support and protect that relationship. It does so with the recognition that privileged attorney-client communications are fundamental to the effective assistance of counsel and to our system of justice.

I note that although many of us in government strive daily to implement Congress’s stated intent in the M.C.A. to ensure adequacy of the defense function for the accused, it is important to remember that in our justice system, an accused cannot be compelled to be represented by an attorney. He may knowingly and voluntarily waive counsel, if the judge has comprehensively advised him of his right to counsel and of the possible adverse consequences of self-representation. An advisement by the judge regarding counsel rights occurs at the formal reading of the charges and commencement of commission proceedings, a session called the arraignment.

Notwithstanding occasional claims by some that the formation of effective attorney-client relations with detainees in Guantanamo is prejudiced by the circumstances of detention here, the case of Majid Khan illustrates that effective attorney-client relationships can be established. After extensive deliberations with his attorneys, Mr. Khan pleaded guilty in February 2012 to serious violations of the law of armed conflict, for which he will spend between 19 and 25 additional years in confinement once sentenced. Given the gravity of knowingly, voluntarily, and intelligently admitting guilt to such offenses, pleading guilty necessarily required trust between Mr. Khan and his counsel. Other examples of effective attorney-client relationships in the context of habeas corpus petitions of Guantanamo detainees further demonstrate the access to courts and representation that all detainees here are guaranteed.

There are many protections and abundant resources in place to facilitate the attorney-client relationship. In a milestone, on November 6, 2013, the Judge issued his privileged written communications order in Appellate Exhibit 018U. This order protects and places under judicial supervision the accused’s confidences and the attorneys’ work product as those communications are introduced into or leave the Guantanamo Bay detention facility. In his order, the Judge called for the creation of a “privilege review team,” which the Judge found “is an appropriate mechanism to serve as the conduit of mail from Defense Counsel to the Accused and vice versa.” AE 018T.

The Judge explained that the privilege review team is a reasonable means of balancing “the interests of the attorney-client privilege against the security of the detention facility, the safety of the guards, other employees, and detainees, and the general allocation of prison resources.” AE 018U.

I would also like to draw your attention to two recent rulings, both of which demonstrate the government’s respect for and facilitation of the attorney-client relationship. First, in United States v. Al Nashiri, after holding an evidentiary hearing regarding defense allegations of government monitoring of attorney-client communications, the Judge, in the context of that case, found “that no monitoring has occurred for at least the prior two years from the date of the hearing, well beyond the 15 September 2011 date of the referral charges in this case.” Al Nashiri, AE 149K. The Judge further found no extrinsic evidence relevant to establish the existence of monitoring at the Guantanamo Bay detention facility before that date. In the absence of any such evidence of government monitoring, the Judge denied the defense request to stop the proceedings in that case. These findings directly contradict some of the early sensationalized and one-sided reports regarding alleged surveillance, though I’m pleased to note that many of you reporters here, with direct and on-scene military commissions experience, have taken a more balanced and fact-based approach to this topic.

Second, in United States v. Mohammad et al., the Judge found that “[n]o evidence supports the Accuseds’ concern the purported loss of data or problems with communication were the result of any attempt by the Prosecution or DoD to compromise Defense files or encumber Defense efforts to represent their respective clients.” AE 155II. The government takes very seriously both the effective representation of counsel and the attorney-client privilege that is central to such representation.

And now, I’ll be happy to take questions.

* * * * *

In closing, I’ll note that on this day twelve years ago, U.S troops, along with our Afghan allies, were in the midst of a fierce combined arms encounter with a sizeable al Qaeda force in Tora Bora, a hideout nestled in the mountains of Afghanistan’s Nangarhar province. On December 15, 2001, members of al Qaeda’s senior leadership were doing all they could to evade capture by our conventional military armed forces.

The September 11th attacks, and the ensuing combat engagements in Afghanistan, made clear that we and peaceful peoples around the globe were threatened by an irregular, organized network that had set out to wage a “war” from sanctuaries that lay across national boundaries and in forbidding terrain. All lawful instruments of state power and international cooperation needed to be mobilized to oppose this serious and adaptive threat, and these instruments included, in the case of Tora Bora, allied military forces in the field.

Today, despite recent successes against al Qaeda and associated forces, all lawful instruments must remain available for employment, and these include law enforcement, diplomacy, and economic measures, as well as intelligence and military means when necessary. Reformed military commissions—which today are the sole lawful forum by which individuals detained here and established to be members of al Qaeda can be placed on trial for alleged crimes—have a narrow but important role in this critical effort.

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

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