Terrorism Trials & Investigations

Mark Martins to be Chief Prosecutor, Military Commissions

By Jack Goldsmith
Thursday, June 23, 2011, 5:38 PM

The Defense Department announced today that Brigadier General Mark Martins, the commander of the Rule of Law Field Force-Afghanistan, will be the Chief Prosecutor in the Office of Military Commissions, beginning around October 1.  This presumably means that Martins will have the lead in prosecuting Khalid Sheik Mohammad and other 9/11 conspirators in U.S. military commissions.  I think this is an inspired choice, and not just (or even mainly) because of Martins’ sterling resume.  As much as anyone I know, Martins has thought deeply about military commissions – their history, the legal and political problems with commissions as originally conceived after 9/11, their virtues and drawbacks in the post-9/11 environment, and most importantly the need for commission trials to be conducted in a manner that is legitimate and widely perceived to be so.  Some will draw analogies to Robert Jackson’s prosecutorial efforts at the Nuremberg Military Tribunal, but in truth Martins faces a more daunting legitimating task than Jackson did.  Despite having been approved twice by Congress, military commissions still face many legal questions.  And beyond the legal questions, they have been badly damaged politically by nearly a decade of mistakes and false starts, and by the strong assumption – by many at home, and by more abroad – that any commission is illegitimate because the United States is not in a war and commissions depart (in relatively small ways, actually) from civilian justice.  A successful prosecution of KSM and his friends, in short, requires much more than outstanding lawyering before the commission and in subsequent reviews.  It also requires outstanding judgment about public presentation and conduct on the public stage before many different, and often antagonistic, audiences.  I cannot think of anyone more suited to this difficult task than Mark Martins.