Terrorism Trials & Investigations

Live-Blogging Tomorrow's Arraignment in United States v. KSM et al

By Wells Bennett
Friday, May 4, 2012, 9:44 PM

A gentle reminder - not that you really needed one, being a devoted Lawfare reader and all  - Ben and I will be live-blogging tomorrow's much-anticipated arraignment in United States v. KSM et al.  According to the military commissions' website, the hearing is set to begin at 9:00 a.m. EST, and is expected to last until 5:00 p.m.  We'll have coverage throughout the day.

Stay tuned . . .

UPDATE: the Chief Prosecutor at Guantanamo, Brigadier General Mark Martins, released a statement to the media this evening.  His remarks are set forth in full below the fold. 

Chief Prosecutor Mark Martins

Remarks During Media Availability at Guantanamo Bay, 4 May 2012

Good evening.  I would like to address two topics that have attracted commentary not because of any specific proceedings, but in light of the use of military commissions generally.  First, some have suggested that detainees have not been given adequate opportunity to form an effective relationship with legal counsel and to prepare a defense.  To these suggestions and complaints—which we do not ignore, which are a healthy byproduct of our adversarial system, and which are all examined carefully—we offer that every detainee at Guantanamo has ample opportunity to get the help of lawyers, and there are notable examples of robust and functional attorney-client relationships being formed and of zealous, effective representation being provided.  A mentally competent accused who has been properly advised of his rights to counsel cannot be forced in this system, in the federal civilian system, and in every respected system of justice to be represented by an attorney.  You will doubtless hear more complaints about resourcing and the formation of an effective attorney-client relationship from dutiful defense counsel seeking to fulfill their professional obligations.   When you do, I trust that you will exercise your own professional obligations to seek out additional perspectives, including by reading government submissions to the court on the matter and by reviewing the facts about resources provided, counsel and investigative hours billed and paid, numbers of flights to Guantanamo available and not taken, opportunities for communication with client through a privilege team, and similar empirical data.  Such complaints will of course be taken up methodically by the judge when and as raised, but you have the opportunity yourself, from the web postings, to view the data and come to a conclusion about whether fairness is being achieved or denied.  And our Article III appellate courts can also view the same facts, as well as a verbatim record of the matter if any error is later alleged on appeal.

Second, some have said that any attempt to seek accountability within the military commissions system must inevitably be tainted by torture.  To those who have these concerns, we say, “we acknowledge your skepticism,” but we also say that the law prohibits the use of any statement obtained as a result of torture or cruel, inhuman, or degrading treatment, and we will implement the law.  These proceedings will be fair, and I submit that we military judge advocates who are carrying out assigned duties in this reformed process have some standing to maintain that they will be fair.   Let me be clear: we will not use statements obtained as a result of torture or cruel, inhuman, or degrading treatment.  It was Judge Advocate General of the Army George Davis who denounced the use of the euphemistically named “water cure” during the Philippine Insurrection more than a century ago, and United States military lawyers since that time have been an important voice for the principle that confessions of an accused must be voluntary.  And the prohibition applies to so-called “admissible hearsay” as well: even otherwise probative and reliable out-of-court statements will not be admitted if unlawfully obtained or if the will of the speaker was overborne.

On these and other matters, I am not saying simply “trust us.”  I am asking you to withhold judgment for a time and to watch and to listen.  If you do, I believe you will see a system worthy of your and the public’s confidence.  And now, I will take questions.

       *      *     *     *     *

In closing, I have come to see firsthand from observing justice systems around the world that what matters is not the majesty of the physical surroundings or the trappings of the courthouse, but rather the wisdom of the court and the quality of its justice.  Austere locations are nothing new to justice, and particularly to military courts, and I am confident that this one will achieve fairness and justice despite the modest setting.  It is encouraging that all of you have elected to endure the inconveniences and the austerity of the setting to watch these proceedings.