Case Coverage: 9/11 Case

Statement from Military Commission Chief Prosecutor Mark Martins

By Benjamin Wittes
Monday, December 7, 2015, 4:04 PM

Military Commissions Chief Prosecutor Mark Martins issued the following statement over the weekend in advance of this week's pre-trial hearings in the 9/11 case:

CHIEF PROSECUTOR MARK MARTINS

REMARKS AT GUANTANAMO BAY

5 DECEMBER 2015

Good evening. As we begin another series of pre-trial sessions in the case of United States v. Mohammad, et al., I want to take this moment to reach out to those family members of the September 11th fallen who have accompanied us here to Guantanamo this week. Be assured that your loved ones are never forgotten.

Fourteen Septembers ago, Jessica and Rebecca Scott lost their father, Randolph, on the 84th floor of Two World Trade Center. For years, the Scott family believed that Randolph had died instantly when United Airlines Flight 175 flew into the tower, very near the office where he worked. Randolph had called his wife Denise. Thinking the first crash was a minor incident, he wanted her to know he was fine. The harsh reality of the attack would not reach Denise until later that morning when Rebecca called her from college.

Nearly a decade later, Denise learned of a hastily written note that had been thrown from the tower. Somehow, the scrap of paper had been recovered that morning by a security guard at the Federal Reserve Bank of New York. It read:

84th floor, West Office, 12 people trapped.

The guard tried to alert first responders by radio, but a few minutes later, the building collapsed.

The Federal Reserve kept the note safe, eventually turning it over to the National September 11 Memorial and Museum. Later analysis revealed a clue in the form of a dark thumbprint on the note. It was Randolph’s blood, which eventually enabled the medical examiner’s office to trace it to its author. After Denise found the right time to tell her daughters about the note, she agreed to let the Museum display it in public exhibit.

And when she saw it, Rebecca immediately recognized the handwriting. Though lost that day, Randolph is not forgotten. A handwritten letter. A wedding ring. A handkerchief. These are among the items on display in the September 11 Memorial and Museum that bring our memories rushing back and that tell our loved ones’ stories so that future generations will never forget.

Upcoming Proceedings and Developments in United States v. Mohammad, et al.

On Monday the Military Commission convened to try Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi will hold another series of pre-trial sessions without panel members present. These five Accused stand charged with plotting the attacks of September 11th, which resulted in the deaths of nearly 3,000 persons.

I emphasize that the charges are only allegations. The Accused are presumed innocent unless and until proven guilty beyond a reasonable doubt. Matters under consideration by a 2 military commission in this or any other particular case are authoritatively dealt with by the presiding Judge. Any comments addressing systemic issues that are the subject of frequent questions by interested observers should always be understood to defer to specific judicial rulings, if applicable.

In between commission sessions, the parties continue moving methodically toward trial, as the prosecution provides discovery to the Defense in accordance with the Military Commissions Act of 2009 (“M.C.A.”). During the October 2015 pre-trial sessions, the Judge resolved a longstanding dispute about whether the defense teams must sign a Memorandum of Understanding Regarding the Receipt of Classified Information (“MOU”) as the predicate for receiving classified information from the government. By 22 October, defense counsel for all five Accused signed the MOU, enabling cleared defense-team members to receive additional responsive discovery while ensuring the protection of national security information. Within days of their signing the MOU—a standard requirement in national security cases—the prosecution promptly began providing them classified information. We continue to do so. In light of the volume of information to be reviewed, the process is painstaking and time-consuming.

To date, more than 320,000 pages of unclassified material and 15,000 pages of classified material comprising the government’s case against the Accused, as well as material required to be disclosed to the defense under the government’s affirmative discovery obligations, have been provided to each of the defense teams—all while safeguarding our nation’s counterterrorism secrets. The parties have briefed in writing some 196 substantive motions and have orally argued some 46 motions. Of the 196 substantive motions briefed, 9 have been mooted, dismissed, or withdrawn; 96 have been ruled on by the Commission; and an additional 38 have been submitted for and are pending decision. The Commission has received testimony from 27 witnesses in nearly 69 hours of testimony, with all witnesses subject to cross-examination, to assist it in deciding pre-trial motions. The parties have filed 191 exhibits and more than 100 declarations alleging facts and providing references to information the Commission’s consideration of these issues. This information, while never meant to suggest that justice can be measured merely by numbers, nonetheless reflects methodical movement toward trial.

In further movement toward trial, the Judge last month rescinded an order severing the case of United States v. Ramzi Bin al Shibh from the other four cases. AE 312D. He did so after resolving issues that had led the Commission to conclude the severance order was necessary. In particular, the Judge resolved an alleged conflict of interest in the defense team for Mr. Binalshibh, finding that there is no actual or potential conflict of interest. Unofficial/Unauthenticated Transcript at 8842. He also resolved the government’s December 2013 request for a determination that Mr. Binalshibh is competent to stand trial, finding that Mr. Binalshibh “does not suffer from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of his case.” AE 152KK at 9.

The Commission has thus indicated its intent to continue on Monday where it left off in October: receiving evidence on a defense motion to stop all activities that bring female members of the Joint Task Force-Guantanamo guard force into direct physical contact with the Accused (AE 254Y). The Commission also indicated its intent to “receive evidence and hear argument 3 on” a series of other motions, including a defense motion regarding attorney-client meetings (AE 254), a defense motion alleging unlawful influence directed at the Judge (AE 254WW, AE 254ZZZ), and a defense motion to dismiss for defective referral (AE 8). The Commission’s order listing the sequence of matters it intends to address is Appellate Exhibit 387. This Docket Order is available on the military commissions’ website.

Developments in United States v. Al Nashiri

The proceedings in United States v. Al Nashiri remain stayed as the President considers re-nomination and re-confirmation of the military judges as judges on the United States Court of Military Commission Review (“U.S.C.M.C.R.”), our first reviewing court. The government filed two interlocutory appeals in that court on grounds that the military trial judge in the Al Nashiri case had, under the statute authorizing such appeals, “terminated proceedings of the military commission with respect to [certain] charges” and “excluded evidence that is substantial proof of a fact material in the proceeding.” 10 U.S.C. § 950d. Meanwhile, the Military Commission has abated future commission sessions pending resolution of these appeals by the U.S.C.M.C.R. See AE 340J.

The government’s efforts to seek re-nomination and re-confirmation of the military judges were prompted by language in a June 2015 decision of the United States Court of Appeals for the District of Columbia Circuit, our federal appellate reviewing court. The U.S.C.M.C.R. has sought to expedite consideration of the government’s interlocutory appeals, as the law commands. Last November, however, the D.C. Circuit had stayed proceedings in the U.S.C.M.C.R. while it considered Nashiri’s petition for a writ of mandamus and prohibition to the U.S.C.M.C.R. alleging that military judges are assigned to the U.S.C.M.C.R. in violation of the Appointments Clause and cannot be freely removed in violation of the Commander-in-Chief Clause of the Constitution. Order, In re Al-Nashiri, No. 14-1203 (D.C. Cir. Nov. 12, 2014), ECF No. 1521946. On 23 June, the D.C. Circuit denied Nashiri’s petition and dissolved its stay of the U.S.C.M.C.R.’s proceedings. In re Al-Nashiri, 791 F.3d 71, 86 (D.C. Cir. 2015); Order, In re AlNashiri, No. 14-1203 (D.C. Cir. June 23, 2015), ECF No. 1559091. The court reasoned it would be inappropriate to issue the writ because Appellee “can adequately raise his constitutional challenges on appeal from final judgment.” In re Al-Nashiri, 791 F.3d at 73. In doing so, the D.C. Circuit did not resolve questions raised by the Appointments Clause challenge, but it concluded that “the President and the Senate could decide to put to rest any Appointments Clause questions regarding the CMCR’s military judges . . . by re-nominating and re-confirming the military judges to be CMCR judges.” Id. at 86. According to the D.C. Circuit, “[t]aking these steps—whether or not they are constitutionally required—would answer any Appointments Clause challenge to the CMCR.” Id.

Our efforts to seek re-nomination and re-confirmation of the military judges continue. The government has reported to the U.S.C.M.C.R. that on 10 September 2015, the Secretary of Defense assigned several incoming military judges to be U.S.C.M.C.R. judges under 10 U.S.C. § 950f. Also on that date, he recommended that the President nominate those judges—in addition to the judges already serving on the Court—for appointment and confirmation as U.S.C.M.C.R. judges. The Secretary’s recommendation has been transmitted to the President for his consideration of their appointment as U.S.C.M.C.R. judges. If the military judges are so appointed, their appointment is expected to proceed on to the Senate Armed Services Committee for the Senate’s advice and consent. The government will further update the U.S.C.M.C.R. no later than 11 December 2015.

Meanwhile, the government continues its comprehensive review process to comply with the Commission’s 24 June 2014 Order. AE 120AA. In this Order, the Commission established a ten-category construct “to focus the Prosecution’s analysis of information as it unilaterally fulfills its discovery obligations and responds to current and future discovery requests” from the defense for information regarding the Central Intelligence Agency’s former Rendition, Detention, and Interrogation Program. Id. To date, the prosecution has substantially responded to the Order with respect to all ten categories and continues to seek access to other, potentially discoverable information. For six of the ten categories, the Commission had previously approved requests for substitutions and other relief under the M.C.A. to prevent damage to national security. See AE 120NNNN. And last month the Commission approved such requests for an additional two categories. See AE 120SSSS; AE 120UUUU. Other requests remain pending with the Commission.

The prosecution also continues work that began in February to review the full Senate Select Committee on Intelligence “Study of the Central Intelligence Agency’s Detention and Interrogation Program.” AE 206Q. The prosecution is required by law to review the Study for potentially discoverable information, see AE 206U, and to request substitutions and other relief from the Commission using the M.C.A.’s classified information procedures as necessary to protect national security information while also ensuring that an accused can confront the charges and evidence and can raise lawful defenses.

Developments in United States v. Abd al Hadi al-Iraqi

In July, “the Defense brought to the Commission’s attention the possibility of a conflict of interest involving one of the Accused’s previous detailed defense counsel” who represents an Accused in another military commission. AE 49I at 1. The Commission later ruled that the previous detailed defense counsel was excused from representing Mr. Abd al Hadi and that his excusal was proper. Id. at 4-5. It also ruled that there is no conflict of interest between Mr. Abd al Hadi and the excused counsel or between Mr. Abd al Hadi and his current detailed defense counsel. Id. at 7. The government asked the Commission to inquire during the September pretrial sessions whether Mr. Abd al Hadi had restored his current detailed defense counsel to full representational capacity.

During the September 2015 pre-trial sessions, Mr. Abd al Hadi “requested the release of his current detailed military defense counsel,” and the Chief Defense Counsel “approved his request.” AE 53B at 1. “The Military Judge thereafter approved” the release of his current detailed military defense counsel, necessitating the detailing of “new military defense counsel to represent” Mr. Abd al Hadi. Id. The Military Judge cancelled the pre-trial sessions previously scheduled to begin in November to allow this process to occur. The Military Judge also ordered defense counsel to notify the Commission of certain events to keep the Commission “abreast of the progress of the Chief Defense Counsel in detailing new military defense counsel and in this 5 new Detailed Military Defense Counsel’s formation of an attorney-client relationship with” Mr. Abd al Hadi. AE 53B at 1.

In accordance with that order, on 13 November, the defense notified the Commission that it detailed three new military defense counsel to the case. AE 7B; AE 7C; AE 7D. Also, on 18 November, the Chief Defense Counsel notified the Commission that “an agreement was reached for two civilian counsels to work on Mr. [Abd al Hadi’s] case in a pro bono status.” AE 53D at 1. He also “indicated he is in the process of hiring a [Department of Defense] civilian attorney whom he will detail to represent Mr. [Abd al Hadi] as an assistant defense counsel . . . .” Id. In a written order, the Commission set a 1 January 2016 deadline “for pro bono civilian defense counsel to complete and submit all required documentation to obtain security clearances and to complete all required application procedures for qualification as civilian defense counsel prescribed by [Regulation for Trial by Military Commission] 9-5.c.” AE 53D at 2.

Although the next pre-trial sessions were originally scheduled for the week of 25 January, one of the newly detailed defense counsel informed the Commission during an 18 November Rule for Military Commissions 802 conference that the defense was “not ready to proceed in light of the ongoing efforts to obtain pro bono civilian defense counsel.” Id. at 1. He further informed the Commission that it “could not proceed until the pro bono civilian defense counsel was detailed as the lead defense counsel.” Id. at 1-2. The prosecution agreed with the defense “position concerning the Commission’s inability to proceed with substantive matters.” Id. at 2. The Military Judge kept the January 2016 session in place so that the defense could “state their position on the record,” id., but shortened the scheduled hearing dates by three days. The next scheduled hearings are now set to occur from 26 through 27 January 2016. AE 15J.

Developments in Al Bahlul v. United States

On 12 June 2015, in a two-to-one decision, a panel of the United States Court of Appeals for the District of Columbia Circuit vacated Ali Hamza Ahmad Suliman Al Bahlul’s conviction for conspiracy to murder protected persons, attack civilians, commit terrorism, and carry out other war crimes. The two-judge majority held that this conviction “violated the separation of powers enshrined in Article III § 1.” Al Bahlul v. United States, 792 F.3d 1, 22 (D.C. Cir. 2015). On 27 July 2015, the government petitioned the D.C. Circuit to rehear the case en banc. On 25 September 2015, the D.C. Circuit granted the petition, vacated the 12 June 2015 judgment, and set forth a scheduling order for the parties’ briefs. With the briefing complete last month, the court held oral argument on 1 December 2015 and took the appeal under advisement. * * * * On Monday, our Nation will commemorate National Pearl Harbor Remembrance Day. In remembrance of those whom we lost on that day as a result of their service at Pearl Harbor and with appreciation to those who continue to serve today, I recognize the Soldiers, Sailors, Airmen, Marines, Coast Guardsmen, and government civilians of Joint Base Andrews, Joint Task Force Guantanamo, and Naval Station Guantanamo Bay. Holding sharply adversarial and accountable trials of this magnitude requires a commitment to first principles of justice under law. But practical implementation would of course be impossible without the support of superb military and civilian personnel serving in our government.