Military Commissions

9/11 Arraignment #15: Mark Martins Press Statement

By Benjamin Wittes, Wells Bennett
Sunday, May 6, 2012, 1:25 PM

Chief Prosecutor Mark Martins gave the following statement to the press this morning:

Chief Prosecutor Mark Martins

Remarks at Guantanamo Bay

6 May 2012

Good morning. Yesterday charges were publicly announced in a court of law against five men who, more than a decade ago, allegedly plotted the deadliest attacks on Americans in our nation’s history.  Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi—whose arraignment here yesterday included the full public reading of charges in their presence—stand now formally accused before a military commission of multiple violations of the law of war in connection with the attacks of September 11, 2001.  Those attacks, described by the 9/11 Commission as having caused “a day of unprecedented shock and suffering,” have been heavily chronicled, and their images seared into our collective memory.  But the process of seeking accountability under law for the crimes of that day remains unfinished.

Those crimes, as alleged in the charge sheet, consist of conspiracy resulting in the deaths of 2,976 persons, attacking civilians resulting in the deaths of 2,921 civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking of aircraft, and terrorism.  There are 21 other named co-conspirators, comprising Usama Bin Laden, Mohammed Atef, and the 19 individuals who hijacked four commercial airliners on September 11th.  The charges allege that the extensive preparations to implement the al Qaeda “planes operation” spanned many months and crossed multiple national boundaries.  They allege that the accused men obtained travel and false identification documents, practiced methods of secreting weapons onto airliners, researched the operations of U.S. air carriers, organized hijacker teams and identified their leaders, arranged for the flight training of pilot hijackers and the combatives training of muscle hijackers, opened checking accounts and established lines of credit, prepositioned funds at locations around the globe and in the United States, purchased equipment, transmitted plans and instructions, received reports, and produced martyr and propaganda videos.  The charges describe criminal activity “in the context of and associated with hostilities” by members of an enemy force that—while flouting longstanding rules of warfare intended to protect innocent noncombatants—was sophisticated, patient, disciplined, and lethal.  I emphasize that the charges for which the accused were arraigned yesterday are only allegations, and that before this military commission, the accused are presumed innocent unless and until proven guilty beyond a reasonable doubt.  The charges have been referred to a military commission empowered to impose the death penalty.

Let me now address a topic that arises when setting out to hold trials of alleged international terrorists and violators of the law of war.  Some have questioned why accused persons charged with such crimes and reputed to espouse hateful and destructive beliefs should be given the inevitable public opportunity to speak, or act out, or attempt to stage a protest that a trial affords.  To them we respond as did Justice Robert Jackson, the Chief Prosecutor at Nuremberg, when he observed that a trial, if it is to serve its purpose of “honestly search[ing] for the facts, bring[ing] forth the best sources of proof obtainable, [and] critically examining testimony,” will “of course [be] bound to [become] something of a sounding board . . . .” or stage for an accused person and that “nothing more certainly discredits an inquiry than to refuse” such a opportunity to an accused.  Now, the accused can lose that opportunity through his own actions, and the judge has all of the tools necessary to prevent disruption of the proceedings, but to fail to hold a trial where one can feasibly be held and to see that justice is served would be a failure to vindicate our values.

Justice Jackson was of course speaking of the International Military Tribunal at Nuremberg, where Goering and other senior Nazi officials frequently sought to challenge the legitimacy of the proceedings.  Nor are demonstrations and disruptions strangers to federal court proceedings.  For example, on June 22, 1999, defendant Walid el-Hage charged the bench during a pre-trial conference in the multi-defendant East Africa Embassy bombing trials, coming within four feet of judge Leonard B. Sand in the Southern District of New York.  Security personnel—there members of the U.S. Marshals Service—restrained the remaining defendants.  El-Hage was enraged because Judge Sand would not read aloud a letter El-Hage had written.  And during jury selection for the penalty phase sentencing trial of Zacarias Moussaoui in the Eastern District of Virginia, Judge Brinkema had to eject Moussaoui four times, as Moussoui engaged in various outbursts—including “I am al Qaeda!,” “I’m the enemy!,” “This trial is a circus!,”—and calling for “destruction of the United States,” and “the destruction of the Jewish people.”  Moussaoui also referred to his three attorneys as a “KKK” and a “geisha.”  Moussaoui was allowed to represent himself for 18 months, until his conduct became obstructionist, and his right to represent himself was revoked by the judge.

The standard for removal and subsequent trial in absentia in both federal and U.S. military courts is Illinois v. Allen, 397 U.S. 337, 343 (1970), which held that “a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.”  This is a high bar, and courts of law are appropriately careful about employing the ultimate sanction of expulsion, choosing instead to build a patient and methodical record and moving the case forward while preparing the ground for eventual expulsion, if necessary.  Here the accused have all been arraigned on 5 May as scheduled, and a date for the next session is set for the week of 12 June, with motions due on 12 May.  The late night yesterday is nothing unusual for military trial participants, who often continue proceedings well into the night so that jury members can return to their duties in command or in the ranks the next day.  Meanwhile, the reading of the charges, though unusual in not having been waived, provided a stirring reminder of the importance of this case.  For so many determined people involved in this trial, the pursuit of justice is worth every moment spent.

Speculation about what might or might not happen in federal court is, at this point, just that: unconfirmable speculation.  The military commission has been referred a case, and it must try that case.  This forum is a lawful means of subjecting to a rigorous and fair criminal trial those alleged to have violated the laws of war, and it has been endorsed by no fewer than five recent enactments of the Congress, signed into law by two different presidents.   Moreover, reformed military commissions fully comply with the international obligation of the United States to ensure that alleged violators of the law of war are tried by “regularly constituted courts, affording all of the judicial guarantees recognized as indispensable by civilized peoples.”  Indeed, military commissions have long been the U.S. national trial forum for fulfilling our international obligation to provide effective penal sanctions for acts recognized as criminal in all nations.  Regardless of the previous and ongoing vigorous and healthy debate, the rule of law now compels all of us to get behind the holding of these military commission trials, and other criminal trials, in all circumstances where we can hold them.

This arraignment was made possible through a decade-long collaborative effort by the Federal Bureau of Investigation and organizations across our government, as well as by valuable assistance from international partners, to marshal the evidence on which these charges are based, and I note that the prosecution of this case combines trial counsel from the Defense and Justice Departments.  Within the space defined by our values, we must use all of the instruments of our national power and authority to counter transnational terror networks that threaten all peaceful peoples, and this investigation and prosecution is reflective of that pragmatic, but principled, approach.  I also recognize the daily professionalism of the Coastguardsmen, Sailors, Soldiers, Marines, and Airmen of Joint Task Force Guantanamo.

For all who lost family or friends on September 11th and for those who were wounded in the attacks, there are no words adequate for this moment.  But know that however long the journey—and this arraignment is just the beginning of a court process that will likely take many months—the United States is committed to accountability under law for those who have plotted to attack our nation and to kill innocent people in violation of the law of war.

I am confident the military commission that was convened here yesterday to try the charges referred to it will answer the call with fairness and with justice.  Thank you, and now I’ll take a few questions.

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In conclusion, I will again quote Justice Robert Jackson, who in the wake of Nuremburg more than 65 years ago said that “where crime leaves the beaten path, the law must be strong enough to follow.”  And now, together, we must be strong enough to follow and enforce the law of armed conflict.  This is necessary to achieve both closure for war crimes in the past, and security—sustainable security—in a challenging future.