DEPARTMENT OF DEFENSE
CHIEF PROSECUTOR OF MILITARY COMMISSIONS
1610 DEFENSE PENTAGON
WASHINGTON, DC 20301-1610
February 10, 2016
On December 11, 2015, the military commission concluded a week-long session at Guantanamo Bay, Cuba. At that time, the defense and prosecution participated in press conferences, during which the media asked questions regarding the week’s events. During his appearance, counsel for the accused Mustafa Al Hawsawi made a statement that “we think we learned that the end is nowhere near in sight [referencing the discovery timeline and litigation]. We will expect to be litigating relevancy probably for the next five to ten years, possibly.”
Upon learning of such statements, a significant number of you understandably voiced your concerns and frustrations with the defense counsel’s predictions. I believe you deserve to hear from me directly regarding the comments that have caused some of you alarm, and more generally about progress in the case.
First, we disagree with defense counsel. It is true that this case presents higher stakes and greater legal and logistical challenges than, possibly, any other trial in U.S. history. Among these is the necessity of protecting classified information in the discovery and trial process. These factors, in turn, have indeed led to significant delays in bringing the case to a just conclusion. But, at the same time, the United States government has dedicated enormous resources, both financial and human, so as to facilitate the continued law of war detention and now prosecution of these individuals while allowing for a legal defense of each accused that is consistent with our justice traditions. Accordingly, we believe that the trial will take as long as the process mandated by Congress requires, and not the endless and unreasonable period suggested by various defense counsel. However, under the law, the final decision on scheduling rests with the military judge, and thus I cannot provide a date certain when trial on the merits will begin.
Second, we want you to know that progress toward trial is being made. Thus far, more than 320,000 pages of unclassified material and 15 ,000 pages of classified material comprising the government’s case against the accused, as well as material required to be disclosed under the government’s affirmative discovery obligations, have been provided to the defense-all of this while safeguarding our nation’s legitimate counterterrorism secrets. The parties have briefed in writing 207 substantive motions and have orally argued 46 motions in previous pre-trial proceedings. Of the 207 substantive motions briefed, 9 have been mooted, dismissed, or withdrawn; 96 have been ruled on by the commission; and an additional 38 have been submitted for and are pending decision. The commission has received testimony from 28 witnesses in nearly 81 hours of testimony, with all witnesses subject to cross examination, to assist it in deciding pre-trial motions. The parties have filed 195 exhibits and more than 100 declarations alleging facts and providing references to inform the commission’s consideration of these issues. This information, while never meant to imply that justice can be quantified, nonetheless reflects methodical and deliberate movement toward trial.
Third, I do not dispute that much work remains to be done. As you have heard in our updates to you, a large number of motions, the majority filed by the defense, remain pending at this time. There will likely be many more filed in the months to come. All of these motions go through a full briefing process by the parties, followed by evidentiary hearings, if evidence is required, and oral argument to the military judge. Additionally, and of great significance, we continue to work toward fulfilling our discovery obligations.
In December, I told the military judge that it is our intent to have provided all necessary discovery to the defense by September 30, 2016. A great deal of such discovery has been provided to the defense already. However, a great challenge remains. As is well known, all of the accused were initially detained as part of the CIA’s former Rendition, Detention and Interrogation program. Records, reports and other documents, numbering in the millions, concerning this program are potentially discoverable to the defense. These must be reviewed to identify all documents containing information that is, under the applicable provision of the Military Commissions Act, “noncumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution’s case, or to sentencing.” Also, any classified information contained must be protected from unlawful disclosure. This is a painstaking process but one we are committed to completing properly and as quickly as possible.
Toward that end, the prosecution has been working seven days a week on discovery matters since early 2014, and we will continue to do so until the job is finished. Moreover, we have enlisted the aid and commitment of other agencies and departments of the government to provide resources toward our effort. I assure you that we will do all that is humanly possible to meet that goal. Once discovery is completed, we expect the military judge will establish a schedule leading to trial.
In closing, I also want to assure you that the entire prosecution team understands and feels the frustrations of so much time going by since the day so many were murdered. Although I wish I could, I cannot give you a timetable of the future of this case. I can only commit to you that we are doing everything we can to bring the case to trial and achieve justice for all of you and for our nation. In the meantime, the accused remain securely detained, under law, at Guantanamo Bay. I respectfully ask for your understanding and patience while we fulfill our mission, and I promise that you will remain in our thoughts every day as we continue our work.
Brigadier General, U.S. Army