CHIEF PROSECUTOR MARK MARTINS

REMARKS AT GUANTANAMO BAY

28 JULY 2016
Good morning, everyone. As those who have been to Guantanamo before know, we
almost always are joined during these sessions by some in the gallery who have suffered direct
harm or loss as a result of offenses punishable under the Military Commissions Act. These
survivors of attacks and family members of the fallen observe the proceedings pursuant to laws
and policies that protect the interests of crime victims in our legal system. This is altogether
fitting and proper, just as it is now for me to recognize how powerfully these sessions must affect
this particular segment of observers.
David Handschuh, a photographer for the Daily News, pressed the shutter of his camera
just as United Airlines Flight 175 had crashed into the South Tower, and he was later buried by
debris from the massive buildings collapse. David is here. The parents of Welles Remy
Crowther, Jefferson and Alison, are also here. Welles, now immortalized as The Man in the
Red Bandanna, organized a rescue effort on the 78th floor of the South Tower of the World
Trade Center, directing the injured to the only passable staircase, and carrying a woman to the
61st flooronly to return to rescue even more injured. Howard Selwyn was also in the South
Tower, but on the 84th floorjust a few floors above Welles and yet practically a world away,
and still farther from his devoted son, James Selwyn, who joined us here this week. In the
neighboring North Tower, just after American Airlines Flight 11 had struck that building,
Thomas Strada called his wife, Terry, from the 104th floor, where he worked as a senior vice
president of corporate bonds at Cantor Fitzgerald. Terry is here. And Lt. Peter Freund, a New
York City firefighter with Engine Co. 55 who rushed to the danger in the North Tower, is also
ever-present this week through observers who knew him long before he gave his life in the line
of duty. Peters brother Chip and sister-in-law Suzanne are here.
We honor these families and draw strength from their example, even as the fifteenth
anniversary of their loved ones deaths rapidly approaches. There is no way to predict precisely
when trial on the merits will begin in the prosecution they observed this week. We can only
assure them that their government will pursue that trialwill pursue justice, under lawfor
however long it takes.
Matters Addressed by the Commission during These Pre-Trial Sessions
Yesterday 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 completed another series of pre-trial sessions to resolve disputes
regarding outstanding legal and evidentiary issues. Before I briefly summarize these matters, I
emphasize that the charges against the Accused 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.
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Over the past two weeks, the Commission addressed some 30 separate matters on the
record, exhausting all active requests for relief on the docket that had been fully briefed and were
prepared for judicial consideration. Motions taken up comprised the following:

Appellate Exhibit 355, a Defense Motion to Compel Provision of Adequate

Representation and Ensure Continuity of Counsel.

The Judge heard oral argument on, and then denied, the defense request in Appellate
Exhibit 425 asking the Military Judge to recuse himself from deciding the defense
motion about whether to recuse himself and the prosecution team from the case.

Appellate Exhibit 426, an Emergency Defense Motion to Compel Appointment and

Funding of Confidential Expert Consultant.

Appellate Exhibit 18KKKK, the Government Notice of USSOUTHCOM/JTF-GTMO

Standard of Review for Outgoing Detainee Mail Intended by the Defense To Be
Released Publicly.

Appellate Exhibit 251, a Defense Motion To Dismiss Charges III and V as Barred by
the Statute of Limitations.

Appellate Exhibit 396, Mr. Alis Notice of Position on Pending Classification

Review.

Appellate Exhibit 424C, a defense motion to compel witnesses to support a defense

motion to compel JTF-GTMO to permit access of the UN Special Rapporteur on
Torture to Camp 7 and the Accused.

Appellate Exhibit 430, Scheduling Order.

Appellate Exhibit 162, a defense request for production of the Military Commission
Privilege Team Non-Disclosure Agreement.

Appellate Exhibit 343H which is Mr. Bin Attashs request for the Military Judge to
reconsider his ruling on Appellate Exhibit 343E, which is a defense motion to dismiss
for unlawful command influence.

Appellate Exhibit 344, a Defense Motion To Dismiss for Convening Authority

Review of Trial Judiciary Effectiveness and Efficiency in Violation of 10 U.S.C.
948j(f).

Appellate Exhibit 373, Mr. Alis Motion to Dismiss for Government Intrusion into
Attorney-Client Relationship.

Appellate Exhibit 91E, Mr. Alis Motion to Reconsider the Military Judges Ruling
on the defense Motion to Dismiss Because the Military Commissions Act
Unconstitutionally Requires the Convening Authority to Act as Both Prosecutor and
Judge of the Defendants.

Appellate Exhibit 321, a defense motion to permit the Accused to have telephone
contact with their family members.

Appellate Exhibit 391, a government motion to pre-admit the death certificates of the
victims of the attack on 9/11 into evidence.

Appellate Exhibit 342, a Defense Motion to Compel Discovery Related to Defense

Access to Witnesses.

Appellate Exhibit 356, Mr. Alis motion to compel the government to provide
discovery relating to the revocation of defense access to classified computer
networks.

Appellate Exhibit 363, a Defense Motion to Compel Discovery Regarding Unlawful

Influence of the Office of the Chairman of the Joint Chiefs of Staff Over the Office of
the Chief Defense Counsel.

Appellate Exhibit 79, a defense motion to have the Military Judge defer consideration
of Appellate Exhibit 52, a classified motion, in order to determine if the motion can
be resolved in an open session of the Commission after proper declassification.

Appellate Exhibit 233, Mr. al Baluchis Motion to Review the Letterhead

Memorandum of His Alleged Clean Team Statements.

Appellate Exhibit 306, a defense motion to compel the government to produce the
metadata of digital images related to the seizure of evidence.

Appellate Exhibit 320, Defense Motion to Compel Discovery of U.S.Pakistan

Communications Regarding Pakistani Citizens Held at Guantanamo Bay.

Appellate Exhibit 399C, Defense Motion To Compel the Production of Witnesses

Necessary To Prove that Mr. Bin Attash Has Been and Is Denied Access to Members
of his Family in Violation of the Law.

Appellate Exhibit 227, Mr. Hawsawis Motion to Compel Prosecution to Allow the
Defense To Receive and Share Unclassified, Un-redacted, Discovery with Mr.
Hawsawi.

Appellate Exhibit 336, Mr. Hawsawis Motion to Compel Non-redacted Detainee

Information Management Systems (DIMS) Reports and Allow the Defense To
Share the Reports with Mr. Hawsawi.

Appellate Exhibit 182, a Defense Motion To Possess and Resume Use of a MicrosoftEnabled Laptop Computer.

In addition to these matters, the Judge also revisited the Appellate Exhibit 380 series of
pleadings. This matter arose in October 2015 when Mr. Bin Attash indicated his desire to
terminate his civilian learned counsels representation. After conducting an ex parte closed
session in October (involving only Mr. Bin Attash, his team of defense lawyers, and the Judge
and judicial staff), the Judge declined to terminate learned counsels representation of Mr. Bin
Attash because he failed to show good cause for termination. Then, on 16 and 17 February
2016, Mr. Bin Attash reiterated his desire to terminate his learned counsels representation and
sought to terminate another civilian counsels representation. Again finding no good cause, the
Judge declined to terminate either civilian counsels representation. He also denied, without
prejudice, learned counsels motion to withdraw. Tr. at 10290. The matter arose again last week
when Mr. Bin Attash repeated his desire to terminate the two counsels representation. The
Judge denied the request after finding no good cause for termination. See Tr. 12592.
On Monday, 18 July 2016, and Friday, 22 July 2016, the Commission met with defense
and prosecution lawyers for an in camera hearing under Military Commission Rule of Evidence
(M.C.R.E.) 505(h) to make a determination regarding the use, relevance, or admissibility of
classified information that defense counsel sought to discuss during a future session on the merits
of motions listed on the Docketing Order and other matters. Once a commission grants a request
to hold an M.C.R.E. 505(h) hearing about classified material that may relate to a motion to be
litigated later, the parties will not litigate the merits of the underlying motion itselfthat takes
place in a session later, and such sessions are to be as open as possible. One purpose of such a
hearing, which in cases involving fewer defense lawyers and prosecutors can often be held in a
judges chambers, is to isolate and minimize that portion of proceedings that truly may need to
be closed.
After holding the in camera hearing, the Commission determined that there was a need to
conduct a closed session under Rule for Military Commission (R.M.C.) 806 regarding
Appellate Exhibits 18Y/AA, 18OO/TT/WW, 321, 373, 386, 396, 441, 441A, and 441B. As I
have previously mentioned, a closed session must meet the same strict criteria demanded in
federal civilian criminal trialsnamely, the Press-Enterprise II factorsand thus must be as
narrowly tailored as possible, preserving on the record the rationale and basis for civilian
appellate court review. This means that the proceedings must be open unless (1) there is a
substantial probability that an overriding interest will be prejudiced if the proceedings remain
open; (2) closure is no broader than necessary to protect the overriding interest; (3) reasonable
alternatives to closure were considered and found inadequate; and (4) the judge makes casespecific findings on the record justifying closure.
The commitment to this standard has not changed. The closed session held Wednesday,
27 July, lasted 2 hours and 30 minutes. Of the more than 21 hours of sessions over the past two
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weeks, only 13 percent were closed. This percentage will decrease when the Commission
releases the transcripts of the past three closed sessions, excising only classified information. To
date, the Commission has held six closed sessions. Total closure comprising these six closed
sessions amounts to about three percent of the proceedings to date. This means that even for a
pre-trial process involving several challenges and other matters implicating classified
information, approximately 97 percent of that process has been open to the public. Moreover,
the government is committed to ensuring that all of its evidence presented in the case-in-chief at
trial will be in open court.
Discovery Matters Addressed by the Commission
The government continues to work seven days a week, including holidays, to comply
with the Commissions order adopting a ten-category construct first established by the
Commission in United States v. Al Nashiri. See AE 397F. On 24 June 2014, the Al Nashiri
Commission established a ten-category construct to focus the Prosecutions 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 CIAs former
Rendition, Detention, and Interrogation (RDI) Program. AE 120AA, United States v. Al
Nashiri. Discoverable information falling within the ten categories, albeit small in proportion
to what has already been provided, is substantial in absolute terms and demands painstaking
effort to identify and produce what is required under the law and the Commissions orders
while continuing to protect sources and methods of intelligence gathering.
Like the Classified Information Procedures Act (CIPA) applied by federal district
courts, the classified-information procedures of the Military Commissions Act of 2009
(M.C.A.) permits [t]he military judge, in assessing the accuseds discovery of or access to
classified information, to authorize the government to request substitutions and other relief
from ordered discovery. 10 U.S.C. 949p-4(b); see 10 U.S.C. 949p-6(d). Also as in CIPA,
the military judge grants the governments request if the military judge finds that the
summary, statement, or other relief would provide the accused with substantially the same
ability to make a defense as would discovery of or access to the specific classified
information. 10 U.S.C. 949p-4(b). To date, the prosecution has requested substitutions
and other relief with respect to information in seven of the ten categories of information in the
ten-category construct. See 10 U.S.C. 949p-4(b)(1)-(3); see also 10 U.S.C. 949p-6(d).
Earlier this week, the prosecution submitted another installment for the Commissions review.
On Monday, 25 July 2016, the Military Judge told the parties that approximately 50
percent of the governments proposed substitutions and other requested relief has been at
least initially screened by his office. Tr. 12965. As courts have explained, this process is an
iterative, interactive one among the parties whereby the Commission, exercising its
supervisory authority to regulate discovery, works with the government and the accused to
fashion creative solutions in the interests of justice for classified information problems.
United States v. Libby, 429 F. Supp. 2d 18, 22 (D.D.C. 2006); see United States v. Yunis, 867
F.2d 617, 619-25 (D.C. Cir. 1989). The defense can participate in the process by submitting
its theory of defense to the military judge. In Appellate Exhibits 073J/156J, the Military
Judge permitted the defense to submit their theories of defense to him ex parte. See also AE
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120NN, United States v. Al Nashiri. Having the benefit of these theories that the government
does not have, a military judge may make additions to the proposed substitutions and other
relief, returning them to the government for revisions. This process, though time consuming
and requiring significant dedication of resources, yields a particularized remedy that both
minimizes the threat to national security and vindicates the accuseds right to a fair trial.
Work Completed to Date Reflects Methodical Implementation of Law
The prosecution has provided the defense information comprising the governments case
against the Accused, as well as material required to be disclosed to the defense under the
governments affirmative discovery obligationsall while safeguarding our nations
counterterrorism secrets. To date, the prosecution has turned over to the defense more than
330,000 pages of unclassified material and, with defense counsel signing the Memorandum of
Understanding Regarding the Receipt of Classified Information, thousands of pages of classified
material.
Also, to date, the parties have briefed in writing some 207 substantive motions and have
orally argued some 66 motions. Of the 207 substantive motions briefed, 13 have been mooted,
dismissed, or withdrawn; 97 have been ruled on by the Commission; and an additional 58 have
been submitted for and are pending decision. The Commission has received testimony from 30
witnesses in more than 85 hours of testimony, with all witnesses subject to cross-examination, to
assist it in deciding pre-trial motions. The parties have filed 217 exhibits and more than 100
declarations alleging facts and providing references to inform the Commissions consideration of
these issues. This information, while never meant to imply that justice can be reduced to
numbers, nonetheless reflects methodical and deliberate movement toward trial.
The next pre-trial sessions in this case are scheduled to occur over a two-week period
from 3 through 14 October 2016.
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For their tireless support to these proceedings, I commend and thank the Soldiers, Sailors,
Airmen, Marines, Coast Guardsmen, and government civilians of Joint Base Andrews, Joint
Task Force Guantanamo, and Naval Station Guantanamo Bay.