CHIEF PROSECUTOR MARK MARTINS

REMARKS AT GUANTANAMO BAY

6 SEPTEMBER 2016
Good evening. This Sunday will mark fifteen years since the terrorist attacks of
September 11, 2001. Memorial ceremonies are planned for the crash sites in New York,
Virginia, and Pennsylvania and for many other places where family members and communities
will remember the nearly 3,000 who were murdered that day. Here at Guantanamo Bay, the
Naval Station will host a 9.11 kilometer memorial run, and chaplains will conduct a service at
0800 to remember the fallen.
Another significant and solemn anniversary occurs next month, when on October 12th it
will have been sixteen years since the attack on the USS COLE. That attack killed 17 American
Sailors while their ship was peacefully refueling in Aden Harbor, Yemen. We are duly joined by
the family members of several who died on board the USS COLE. These family members
observe the proceedings pursuant to modern laws that protect the interests of victims in our legal
system. Although their participation is part of an increasingly routine procedure within the
United States system of criminal justice, the attendance of these surviving and still grieving
family members and shipmates can never be routine, as what might appear to be a dry legal
proceeding can powerfully affect them, just as their presence helpfully reminds all of us what is
at stake in this long military commission trial process.
With us are Tom Wibberley and his brother Bruce Wibberley, here to witness the
proceedings and remember Toms son, Seaman Craig B. Wibberley. Retired Command Master
Chief James Parlier and his wife Nelle are here. Retired Senior Chief Petty Officer Goffery
Joe Pelly and his wife Sharon are here. Command Master Chief Parlier and Senior Chief Pelly
are survivors of the bombing attack on USS COLE. Saundra Flanagan is here to witness and
remember her son Electronics Warfare Technician First Class Kevin Rux. Saundra is
accompanied by her cousin Ruth Snyder. We thank you all for being here with us. You honor
usand the memory of your loved oneswith your presence. And while this trial process has
taken a long time, know that we feel your frustration, and that the United States will not rest until
justice is done.
Appellate Decisions Clearing the Way for Resumption of Proceedings
This week, the Military Commission convened to try Abd Al Rahim Hussayn
Muhammad Al Nashiri will hold another series of pre-trial sessions without panel members
present. Al Nashiri is charged with murder, terrorism, and other violations of the law of war
relating to the bombing of USS COLE, the attempted bombing of USS THE SULLIVANS, and
the bombing of MV Limburg. The charges against the Accused are only allegations. The
Accused is 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.

Although I will not comment on the specifics of any motions pending before a military
commission, I am available to provide legal context and background. One of the most
noteworthy features of this round of pre-trial sessions is simply that we are again back on the
record following a eighteen-month stay of all trial proceedings. For several months the
proceedings in United States v. Al Nashiri were stayed as the government sought re-nomination
and re-confirmation of the military judges on the United States Court of Military Commission
Review (U.S.C.M.C.R.), our first reviewing court. That process was completed in April 2016,
and the U.S.C.M.C.R. thereafter promptly lifted the stay in two interlocutory appeals pending
before it. The government previously had filed the two appeals on grounds that the Military
Judge in Al Nashiri hadunder the statute authorizing such appealsterminated 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 in April 2015 had itself stayed all future commission pre-trial sessions
pending resolution of these appeals by the U.S.C.M.C.R. AE 340J.
Following re-nomination and re-confirmation of the military judges as U.S.C.M.C.R.
judges and the lifting of all appellate court stays, Al Nashiri in May 2016 petitioned the United
States Court of Appeals for the District of Columbia Circuit for a writ of mandamus and
prohibition to compel the military judges disqualification. He also moved the D.C. Circuit to
stay the proceedings in the U.S.C.M.C.R. On 28 May 2016, the D.C. Circuit denied the writ
petition and dismissed the motion to stay as moot. Proceedings in the U.S.C.M.C.R. were thus
free to resume. With the briefing in the first interlocutory appeal complete, the U.S.C.M.C.R.
held oral argument for that appeal on 2 June 2016. It issued its written opinion on 9 June 2016,
reinstating the charges relating to the bombing attack on MV Limburg. On 8 July 2016, the
U.S.C.M.C.R. issued its opinion in the second interlocutory appeal. This decision granted the
government an opportunity to admit evidence regarding the danger to life and limb of civilians
who were in the vicinity of the bombing attack on USS COLE but who were not actually on the
ship.
Al Nashiri also filed a petition requesting that the U.S.C.M.C.R. set aside its 9 June 2016
ruling. The defense alleged that one of the appellate military judges had a conflict of interest.
On 23 August 2016, the U.S.C.M.C.R. denied Al Nashiris petition.
Separately, on August 30, 2016, the D.C. Circuit issued an order and opinion denying
another longstanding Al Nashiri mandamus petition, this one having challenged military
commission on the ground that the charged criminal conduct did not take place in the context of
hostilities. In reviewing the attempt to have a federal district court hear his hostilities claim, the
D.C. Circuit opined that Al Nashiri [was seeking] to avoid the structure Congress [] created
when it enacted the Military Commissions Act of 2009. In re: Abd Al-Rahim Hussein
Muhammed Al-Nashiri, No. 15-1023, 2016 U.S. App. LEXIS 15974, at *3 (D.C. Cir. Aug. 30,
2016). The D.C. Circuit denied Al Nashiris effort to dissolve the military commission
convened to try him and affirmed the prior rejection of Al Nashiris petition that had been
entered by the United States District Court for the District of Columbia. Id.
These several rulings in our appellate courts together mean that United States v. Al
Nashiri is fully cleared to resume at the trial level before the Military Commission.
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Docketed Matters Before the Commission

The Revised Docketing Order can be found at Appellate Exhibit 349E. The Order lists
29 pleadings that the Commission intends to take up. I will not go into detail regarding each of
them, but I will note that the Commission intends to hear argument on the impact of the recent
U.S.C.M.C.R. decisions on seven motions that had previously been ruled on by the Commission
and on fourteen motions that had previously been mooted by the Commission. The Commission
will also hear argument and receive evidence related to eight motions that it has not previously
ruled on or mooted.
All of those eight motions have been fully briefedmeaning the Commission has
received written briefs from the partiesand their docketing for this week means that the
Military Judge intends to hear oral argument on some or all the issues raised by the motions.
Three consist of motions to dismiss certain charges. Appellate Exhibit 332X was a defense
motion to dismiss all the charges on a claim of unlawful influence. The defense has styled this
as a renewed motion, based on a previous motion to dismiss filed at Appellate Exhibit 332U.
In this renewed motion, the defense has argued that the Convening Authority has not followed a
prior order by the Commission regarding allegations that members of the Convening Authoritys
staff had exerted undue influence on the commission proceedings.
The defense filed another motion to dismiss the charges and specifications relating to the
bombing attack on MV Limburg, located at Appellate Exhibit 351. In this motion, the defense
has argued that recent precedent by the United States Supreme Court in the case of RJR Nabisco
v. European Community, 195 L. Ed. 2d 476 (2016), prohibits the government from prosecuting
an individual for war crimes committed in violation of the Military Commissions Act that
occurred outside the sovereign territory of the United States.
Finally, the defense filed another motion to dismiss, located at Appellate Exhibit 352. In
this filing, the defense has argued that that another recent Supreme Court case, Williams v.
Pennsylvania, 579 U.S. __ (2016), prohibits the Convening Authority from fulfilling his offices
statutorily required duties.
Filings to Date and Efforts to Complete Affirmative and RDI-Related Discovery
To date, the parties have briefed in writing 424 substantive motions and have orally
argued some 313 motions. Of the 424 motions briefed, 54 have been mooted, dismissed, or
withdrawn; 307 have been ruled on by the Judge; and an additional 26 have been submitted and
are pending a decision. The parties have filed 34 exhibits and 29 declarations. The Commission
has conducted numerous hearings totaling over 151 hours on the record. Again, this information
is not meant to convey that justice can be distilled into numbers, but it is helpful in
demonstrating the diligence and effort going into bringing this case to trial.
In the meantime, the government has provided more than 265,000 pages of discovery to
the defense and continues working seven days a week, including all holidays, to comply with the
Commissions 24 June 2014 Order establishing a ten-category construct for discovery pertaining
to the Central Intelligence Agencys former Rendition, Detention, and Interrogation Program.
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AE 120AA. Among other large tasks in complying with this Order, the prosecution has
reviewed the full Senate Select Committee on Intelligence Study of the Central Intelligence
Agencys Detention and Interrogation Program.
To date, the prosecution has substantially responded to the 24 June 2014 Order with
respect to all ten categories, and it continues to produce discoverable information. For eight of
the ten categories, the Commission has approved requests for substitutions and other relief under
the Military Commissions Act to prevent damage to national security. AE 120QQQQQ. Other
requests remain pending with the Commission, still other requests are in the final stages of
preparation for filing, and I have tempered optimism that we will achieve our goal of fully
complying with the 24 June 2014 Order of the Commission by 30 September of this year.
*

We thank the Soldiers, Sailors, Airmen, Marines, Coast Guardsmen, and government
civilians of Joint Base Andrews, Joint Task Force Guantanamo, and Naval Station Guantanamo
Bay for their continuing support to these proceedings in the coming weeks.