Terrorism Trials & Investigations

Mark Martins Statement to the Media

By Benjamin Wittes
Wednesday, August 22, 2012, 12:05 PM

Military Commissions Chief Prosecutor Brig. Gen. Mark Martins has issued the following statement to the media:

Chief Prosecutor Mark Martins

Remarks at Guantanamo Bay

22 August 2012

Good morning. The military commission convened to try the charges referred to it against Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi will hold over the next several days what are known under the Military Commissions Act of 2009 as sessions without panel members present. Such sessions enable the hearing of various matters—namely ones that are not issues of fact for the jury to decide with respect to guilt or innocence—in an orderly, methodical way for resolution by the judge prior to trial. Before the presentation of evidence on the merits can take place, particularly in a complex trial with multiple serious charges, many legal and procedural issues will be raised; the law in all United States courts, military commissions included, requires that they be addressed, and the disposition of each issue placed on the record. The military judge’s order providing the sequence of motions can be found on the military commissions website at Appellate Exhibit 59D, as can all of the initial and response briefs by the parties for the twenty-five different issues that will be taken up by the commission.

These motions will not be litigated here today. Your review of the briefs and your attendance at oral arguments in the coming week will enable you to hear all sides of these motions and thus fulfill your professional obligation to avoid reporting only one perspective of any contested issue. Such diligence is important. While there are some issues on which government and counsel for the accused agree, there are many areas of disagreement. The facts and legal rationale of each matter will be duly considered by the judge, but there is great benefit in your considering them as well and, through you, the wider public that is interested in this significant trial.

I will briefly comment upon three broader issues that deal with reformed military commissions generally. First: the openness of these proceedings. With respect to the benefits of public criminal trials, our Supreme Court has noted that the presence of the media and the people “historically has been thought to enhance the integrity and quality of what takes place.” This is, in part, because “[t]he crucial prophylactic aspects of the administration of justice cannot function in the dark,” and “no community catharsis can occur if justice is done in a corner . . . .”

Criminal trials under the United States federal system of criminal justice—including military commissions—are to be publically held. There is a significant public interest in understanding the basis of decisions made by the government. 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—provides to certain information, and these are often acknowledged, as they have to be, even by those who advocate for greater transparency most urgently and singlemindedly:

· Any non-disclosure of information, or closure of proceedings, as the Supreme Court has said, requires a showing that the closure “is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” That means the court must employ 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 of information or closure of proceedings must be “based on findings that closure is essential to preserve higher values,” and those findings must be preserved for appellate review and be “specific enough that a reviewing court can determine whether the closure order was properly entered.”

· The non-disclosure of information or closure of proceedings 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.

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.

The law does not require our national security secrets to be an open book. There is more than one public interest involved in important questions, this one included, and while sometimes the interests are consonant, at other times they must be balanced. Holding a public trial means that those who wish to attend in person can do so; it does not mean all proceedings are televised. Federal criminal trials and court-martials of service-members are not televised. The guilt-innocence phase of criminal trials in Britain is not televised. This is a court of justice. It is not entertainment. When cameras are rolling, behaviors of humans can change, sometimes to the detriment of justice.

Second, the legal concept of relevance. The parties have the right to present evidence that is “relevant and necessary.” The parties have no right to present irrelevant evidence. That is just as true in federal courts as it is in military commissions.

Evidence is relevant and necessary where it contributes to a party’s presentation of the case in some positive way on a matter in issue. For example, with respect to a charge of hijacking an aircraft under the Military Commissions Act, the elements of that offense include (1) intentionally seizing, exercising unauthorized control over, or endangering the safe navigation of, an aircraft, (2) that is not a legitimate military objective. So any evidence that contributes to one side or the other’s presentation of the case on the question whether the accused intentionally seized an aircraft, or whether the aircraft was a legitimate military objective, would be relevant and necessary.

The same standard applies to affirmative defenses. In military commissions, if the accused can show that his conduct was the product of coercion or duress, for example, that acts as an affirmative defense. So evidence tending to contribute to the accused’s presentation of the case on the question whether he was acting under duress would be relevant and necessary.

Put another way, the focus of the trial is, as it should be, on the guilt or innocence of an accused on the charges alleged. Where issues raised in the proceedings regarding post-capture treatment are relevant to that purpose—as they would be if the voluntariness of an accused’s actions or statements were to become a fact of consequence to some matter properly before the commission—then the commission will not shrink from addressing them. All information that may tend to exculpate an accused, including classified information, must be provided to the defense in discovery. And I reiterate that the law clearly holds that no statement obtained as a result of torture or cruel, inhuman, or degrading treatment is admissible, and that the standard for admissibility is voluntariness. Any new information uncovered about post-capture treatment will be made known to the appropriate authorities tasked with investigating allegations regarding the accused’s treatment.

Relevance also relates to sentencing. In a capital case, death may be adjudged only if the members find, beyond a reasonable doubt, one or more enumerated aggravating factors. One aggravating factor is whether a victim was under the age of 15. So evidence as to whether any victims were children would therefore be relevant.

I emphasize that the charges before a military commission are only allegations, and that an accused is presumed innocent unless and until proven guilty beyond a reasonable doubt.

Third, the delay in reaching trial on the merits. Impatience with the pace of legal proceedings is understandable, particularly for those who lost family or friends on September 11th and for those who were wounded in the attacks. The seriousness of these charges requires that the defense be given a full and fair opportunity to raise legal challenges to the charges, and each challenge must be taken up methodically, and without use of perceived short cuts, so that the results will achieve justice and will be sustainable under law. In the meantime, the process, while likely to last many more months, exposes neither the public nor the accused to any danger or harm. These men are being lawfully, humanely held as belligerents, with their detention under the law of armed conflict subject to challenge by petition for writ of habeas corpus in United States federal court. And the motions being considered are often made by their own counsel representing their interests.

Long sessions and late nights are not unusual for the military, who are often on duty during deployments twenty-four hours a day, seven days a week. And all courts of law encounter disruption and endure instances of disrespect from those criminally accused; suggestions that such things do not happen in civilian trials, particularly trials involving complex international terrorism allegations, ignore the reality of criminal prosecutions in our legal system. For so many determined people involved, the pursuit of justice is worth any amount of effort by both the prosecution and the defense that proves to be necessary for the completion of a lawful trial.

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In closing, I would like to say that many criticisms of reformed military commissions require one to believe that diverse officers, sworn to uphold the Constitution and having independent duties to see that justice is done in an adversarial process, are actively coordinating to undermine justice. Such criticisms also often seem stuck on replay, and it is as if some who are now offering the criticisms don’t want to acknowledge the very broad-based and legitimating reforms that their efforts helped bring about. That is, some have a penchant for wanting to continue to attack the Article II, executive branch military commissions convened under the 2001 presidential order, which generated a large and impressive response. That response—in which many of you here actively participated—was, I respectfully submit, successful, and I don’t say that in a smug way, because good and accountable government must always remain vigilant. But a by-product is that the old criticisms can’t just be rehashed. Continued pursuit of the fairest and most accountable judicial proceedings that we can institute demands more than that.