Terrorism Trials & Investigations

Brig. Gen. Mark Martins Remarks After Second Day of Al-Nashiri Hearing

By Ritika Singh
Friday, January 20, 2012, 10:54 AM

18 JANUARY 2012

Good afternoon. Today, the military commission continued its consideration of a series of motions raised by the defense and the prosecution. To recap:

  • First, in the morning, proceedings continued on the defense motion seeking protection of the accused’s receipt of confidential legal mail from his attorneys. (Appellate Exhibit 27) After argument by trial and defense counsel, the judge deferred issuing his own order until he could also consider a complete proposed order by the defense as well as a response to that proposal by the government.
  • Second, the judge took up the matter of a protective order to safeguard specific pieces of law enforcement, national security, and privacy information made available to the accused, which—though unclassified—the government maintains should not be broadly disclosed before trial due to public interests. (Appellate Exhibit 14) The parties agreed to a version of the order, and the judge stated his intention to review it and to sign it.
  • Third, the judge heard a defense motion objecting to the government’s ex parte application seeking safeguards of national security information under the Military Commissions Act of 2009. (Appellate Exhibit 24) The judge heard argument and directed the steps and a timeline—consistent with the classified information procedures of that Act—that the parties would use to ensure that substitute classified summaries of documents protect both the accused’s ability to fully prepare his defense and the government’s obligation to protect national security information.
  • Fourth, the judge considered the proposed trial schedules submitted by both the defense and the prosecution (Appellate Exhibit 23) and set the course of litigation to come, with another hearing in mid-April.

That is the state of matters at this time. I commend to interested observers the transcript that will soon be available on the military commissions website for details about these frequently echnical issues and about the rulings of the judge. The unofficial transcript of yesterday’s proceedings is now available on the site.

Beyond the issues in the case of Al Nashiri, I want to provide a brief explanation of more general rules governing the protection of classified information and other sensitive information, where doing so is in the public interest. This has been of some interest to many of you. Criminal trials under the United States federal system of criminal justice—including military commissions—are to be publically held, but the right of public access is not absolute. That right, important as it is, must be balanced against the accused’s right to a fair trial and also against the need to protect critical national security and other public interests. Several rules govern the protection that our criminal justice system—including reformed military commissions provide certain information:

  • The non-disclosure must be narrowly tailored, employing measures short of complete closure whenever possible to protect the information while allowing public access to sufficient information to understand the proceedings and the basis for non-disclosure;
  • The non-disclosure must be based on findings of fact, articulated by the party seeking the protection and, if the protection is granted, announced on the record by the judge;
  • The non-disclosure cannot be justified on the grounds that the information reveals the breaking of the law or is a source of embarrassment to the government or one or more officials;
  • Disclosure to an accused and his counsel is one matter, and disclosure to the public is another; the guarantee of a fair trial will almost always call for disclosure to the accused through discovery of some information entrusted to the government’s custody that should not be freely passed to the public prior to trial;
  • And finally, in addition to classified information involving sources and methods of intelligence-gathering, troop movements, and information indicating the possible future actions of a terrorist or enemy force, there are categories of unclassified but sensitive information that need to be safeguarded, consistent with the accused’s right to prepare for trial. These categories include sources, methods, geographic locations, and activities of law enforcement personnel; privacy material such as identifying information, medical data, and other personal details relating to victims, witnesses, their families, and other individuals associated with the trial; and operating procedures of detention facilities whose nondisclosure is necessary for force protection.

These rules summarize a well-developed body of law and precedent that military commissions, like federal courts and courts-martial, must apply to each individual case, ensuring the balance of free press, fair trial, and public interest in matters such as national security and individual privacy.

And with that, I’m pleased to be able to take a few questions.

Once again, I would like to recognize the logistical support and the professionalism of the Sailors, Soldiers, Marines, and Airmen of Joint Task Force Guantanamo. A major criminal trial proceeding, conducted in accordance with our laws and our values, requires much of any community, whether that community is in Chicago, or Los Angeles, or Alexandria, or New York, or here. I know I am not alone in my admiration for those whose daily performance of duty makes the pursuit of justice—which is worth every penny and ounce of work that is being expended on it—not merely a high sounding ideal, but also a reality.