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CHIEF PROSECUTOR MARK MARTINS REMARKS AT GUANTANAMO BAY

17 OCTOBER 2015

Good evening. Before pre-trial sessions continue this week, I pause to honor the 9/11 fallen and the survivors who still bear the seen and unseen wounds from that day. We honor people like William Kelly, Jr., whose sister has turned her grief into action for peace. We honor Donald Americo DiTullio, whose siblings remember their brother as a toddler who was determined to fix everything in their house with his wooden hammer. We honor Matthew Harttree, who survived the attacks from a nearby hotel lobby as the South Tower of the World Trade Center collapsed. We honor Mark Rosenberg, whose nephew misses their bike rides and frequent talks. We honor Andrew Kim, who inspired his parents to establish a scholarship in their son’s name.

As those of us who are fortunate enough to still hold our loved ones, we know that none of our words can capture the heartache and grief felt by these families. Yet, we are constantly reminded of their loss; and of their desire to see a sustainable justice under law.

Monday morning, the Military Commission will hold pre-trial sessions in the case of United States v. Mohammad, et al. The five Accused—Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi—stand charged with plotting the attacks of September 11th. 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 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.

The Military Judge’s order listing the sequence of matters he intends to address is

Appellate Exhibit 374. The Military Judge issued a brief addendum to this Docketing Order (Appellate Exhibit 374B), and when that becomes available, we’ll provide it to you. In the Docketing Order, the Military Judge directed the parties to be prepared for proceedings between October 19th and October 30th. Please be aware, however, that while the Accused and counsel must be present beginning at 9 a.m. Monday, what happens in the case both inside and outside the courtroom will be determined by the law and by procedural rules rather than by any set schedule. It has not been uncommon for the Military Judge to change the order of motions and cancel entire portions of scheduled sessions, when that has been what he has deemed the law and procedure require. Although I will not comment on the specifics of these matters pending before the Commission or any other court, I will provide a brief overview of what to expect, and then I will survey important developments in appellate proceedings and in ongoing military-commission cases.

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

The Commission has recessed much of the in-court activity this year to resolve issues related to a joint defense motion asking the Commission to inquire into possible conflicts of interest between defense-team members and the Accused occurring as a result of a reported FBI investigation into one of the defense teams. In his Docketing Order, the Judge indicated he intends to hear argument on this matter. (For the pleadings, see the Appellate Exhibit 292 series.) For this litigation, the United States is represented by Special Trial Counsel, whom I detailed to litigate this matter alone. I did so to ensure the Prosecution Team (including myself) remains walled-off from learning about any privileged communications between defense counsel and the Accused that might arise during this litigation. Depending on the outcome of this argument, the Judge will hear argument on other matters listed in the Docketing Order.

Frustration with the in-court recesses is understandable, particularly for those who lost family or friends on September 11th and for those who were wounded in the attacks. Despite these recesses, we have continued our seven-days-a-week efforts to get this case to trial. For example, the Senate Select Committee on Intelligence has made public the 517-page Executive Summary of its Study on the Central Intelligence Agency’s former Rendition, Detention, and Interrogation (“RDI”) Program. The declassification of information included in the Executive Summary simplified the provision of specific material to the defense that would have otherwise occurred through the discovery process, which is required to safeguard genuine national security information while also ensuring the fair trial that is demanded by the law and by our values.

As a result of the declassification, the Commission ordered the government to review the pre-existing protective order governing RDI information and to proffer any necessary changes to reflect recent declassification decisions. AE 331. Since then, the Commission has granted a government motion to amend the protective order that removes restrictive-handling requirements for certain formerly classified information. AE 13AAAA. And the government has conducted a classification review of motions where the Commission has taken final action and provided the Commission and the respective parties with filings reflecting updated classification markings. AE 331A, AE 331B, AE 331C.

In February, the Senate Select Committee on Intelligence authorized the Office of the Chief Prosecutor of Military Commissions to review the full “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program.” The prosecution immediately began reviewing the Study for potentially discoverable information to provide the defense while also protecting sources and methods of intelligence gathering—a painstaking and time-consuming process in light of the volume of material to be reviewed.

The Commission has also ordered all defense-team members who will have access to the classified discovery provided by the government to sign a Memorandum of Understanding Regarding the Receipt of Classified Information. AE 13GGGG. Signing this memorandum—invariably required of counsel who receive classified information in discovery in international terrorism prosecutions in military commissions as well as in federal civilian courts—will enable defense-team members to receive additional responsive discovery in this case. In fact, the prosecution has promptly begun providing classified information to those defense counsel and

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defense-team members who have complied with this judicially ordered, standard requirement within days of their signing of the memorandum, which commits them to protecting genuine classified national security information while fulfilling their obligations to defend the Accused.

Also, on 9 October 2015, Mr. al Hawsawi filed an emergency motion with the United

States Court of Appeals for the District of Columbia Circuit, asking that court to halt the military-commission proceedings scheduled to begin on Monday. He asked the court to do so while he attempts to appeal a decision by the United States District Court for the District of Columbia that denied his motion purporting to seek habeas relief. Yesterday, the D.C. Circuit denied the emergency motion while also ordering that the appeal be expedited.

Meanwhile, more than 310,000 pages of unclassified 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 the defense—all of this while safeguarding our nation’s legitimate counterterrorism secrets. The parties have briefed in writing some 190 substantive motions and have orally argued some 43 motions in previous pre-trial proceedings. Of the 190 substantive motions briefed, 8 have been mooted, dismissed, or withdrawn; 94 have been ruled on by the Commission; and an additional 36 have been submitted for and are pending decision. The Commission has received testimony from 23 witnesses in more than 65 hours of testimony, with all witnesses subject to cross-examination, to assist it in deciding pre-trial motions. The parties have filed 190 exhibits and more than 100 declarations alleging facts and providing references to inform the Commission’s consideration of these issues. This information, while never meant to imply that justice can be quantified, nonetheless reflects methodical and deliberate movement toward trial. 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.

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.

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These actions were prompted by language in a June 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 Al-Nashiri, 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.

The government has informed the U.S.C.M.C.R. that the Secretary’s recommendation

remains with the President. To permit the re-nomination and reconfirmation process now being considered by the President to continue, the government has asked the U.S.C.M.C.R. to maintain its stay of the appellate proceedings. The government will further update that court in its next public pleading on the matter no later than 13 November 2015.

Meanwhile, the government has not ceased in 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 RDI 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 has approved requests for substitutions and other relief under the Military Commissions Act of 2009 to prevent damage to national security. See AE 120NNNN. 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 Military Commissions Act’s classified information procedures as necessary to protect national security information that has no bearing upon the case.

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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 pre-trial sessions whether Mr. Abd al Hadi had restored his current detailed defense counsel to full representational capacity.

During the September 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 new Detailed Military Defense Counsel’s formation of an attorney-client relationship with” Mr. Abd al Hadi. AE 53B at 1. To date, the defense counsel have not filed any notices with the Commission on their progress.

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. In 2008, Bahlul had been charged under the conspiracy offense Congress codified in the Military Commissions Act:

CONSPIRACY.—Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this subchapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. [now codified at 10 U.S.C. § 950t(29)].

Bahlul’s conspiracy charge alleged that between 1999 and 2001, “in the context of and associated with an armed conflict,” he had willfully entered into an agreement with Usama bin Laden and other members of al Qaeda to commit these crimes and then “knowingly committed [eleven] overt acts in order to accomplish some objective or purpose of the agreement.” Among the overt acts Bahlul was alleged to have personally committed were undergoing military-type

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training at al Qaeda’s Mes Aynak camp, pledging bayat to bin Laden, serving as bin Laden’s secretary, preparing products intended to indoctrinate new al Qaeda recruits and incite them to commit terrorism, and arranging for two pilots of the September 11th attacks to pledge bayat to bin Laden. After a five-day trial involving 16 witnesses and 63 trial exhibits containing documentary, physical, forensic, and videotape evidence, the Military Commission of nine military officers found Bahlul guilty and sentenced him to be confined for life. Bahlul had elected not to contest the evidence or permit his detailed defense counsel to cross-examine the witnesses.

The D.C. Circuit two-judge majority that in June vacated Bahlul’s conviction for conspiracy to commit war crimes 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. In accordance with that order, Bahlul filed his brief on 13 October 2015. The government’s brief is due on 2 November 2015, and Bahlul’s reply brief is due on 12 November 2015. The court scheduled oral argument for 1 December 2015.

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For their support to these proceedings in the days to come, I commend and thank the Soldiers, Sailors, Airmen, Marines, and Coast Guardsmen of Joint Base Andrews, Joint Task Force Guantanamo, and Naval Station Guantanamo Bay.