CHIEF PROSECUTOR MARK MARTINS

REMARKS AT GUANTANAMO BAY

20 SEPTEMBER 2015
Good evening. This month we marked another September 11th, the fourteenth since the
attacks on that day. Many of us commemorated it in ceremonies held in New York City, in
Shanksville, Pennsylvania, and at the Pentagon in Virginia, bowing our heads and sharing a
moment of silence in solemn tribute to the lives we lost. The ceremony beneath a cloudless blue
sky at the Pentagon, where I was privileged to attend with Lisa Dolan, could not fail to move and
to inspire. Lisas husband, Captain Robert Dolan, was on duty in the Navy Command Center
when the attack came.
Tuesday, the Military Commission convened to try the charges against Abd al Hadi alIraqi will hold its sixth series of pre-trial sessions without panel members present. Abd al Hadi
is charged with committing serious violations of the law of war by conspiring with and leading
others, as a senior member of al Qaeda, in a series of unlawful attacks and other offenses in
Afghanistan, Pakistan, and elsewhere from 2001 to 2006. These attacks and other offenses
allegedly caused death and injury to U.S. and coalition service members and civilians.
The charges against Abd al Hadi and each of the detainees mentioned in these remarks
are only allegations. They 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.
Although I will not comment on the specifics of any motions pending before a military
commission, I will provide updates on tomorrows proceedings and a few other matters of
common interest.
Upcoming Proceedings in United States v. Abd al Hadi al-Iraqi
When we last met in July, the Defense brought to the Commissions attention the
possibility of a conflict of interest involving one of the Accuseds previous detailed defense
counsel who represents an Accused in another military commission. AE 49I at 1. Since then,
the Commission has ruled that the previous detained 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 has asked the
Commission to inquire during this weeks pre-trial sessions whether Mr. Abd al Hadi has
restored his current detailed defense counsel to full representational capacity.
Also during this weeks pre-trial sessions, the Commission has indicated its intent to hear
argument and receive evidence, as required, on a defense motion to suppress Mr. Abd al Hadis
out-of-court statements (Appellate Exhibit 45) and a government motion for a determination on
the use, relevance, and admissibility of certain information under Military Commission Rule of
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Evidence 505(h) (Appellate Exhibits 20S, 35F, 40F, 42F, 45G). The docketing order setting
forth the matters the Commission intends to consider during these pre-trial sessions is available
at Appellate Exhibit 51.
Between these in-court sessions, significant work remains underway. Since arraignment,
the parties have briefed in writing 32 substantive motions, 13 of which the Commission has ruled
on. More than 40,000 pages of material comprising the governments case against the Accused,
as well as material required to be disclosed to the defense under governments affirmative
discovery obligations, have been provided to the defense. Substantial additional material has
been submitted to the Military Judge under classified information procedures to ensure that while
the Accused and counsel have a full opportunity to prepare a defense and receive all exculpatory
and mitigating evidence, sensitive sources and methods and other classified national security
information are protected. See 10 U.S.C. 949p-4; M.C.R.E. 505(f). These examples of the
work accomplished in this case to date, while never meant to suggest that justice can be
quantified, serve as important indices of the less visible progress toward trial.
Developments in United States v. Al Nashiri
As I mentioned in July, the proceedings in United States v. Al Nashiri remain stayed as
the government seeks 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, and the Military
Commission has abated future commission sessions pending their resolution. AE 340J. On
September 10, 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 judgesin addition to the judges already serving on the Courtfor
appointment and confirmation as U.S.C.M.C.R. judges. The Secretarys recommendation has
been transmitted to the President for his consideration of their appointment as U.S.C.M.C.R.
judges. If so appointed, their appointment is expected to proceed on to the Senate Armed
Services Committee for the Senates advice and consent. To permit the re-nomination and reconfirmation process that is underway to continue, the government requested that the
U.S.C.M.C.R. maintain its stay regarding the appellate proceedings. The government will
further update the U.S.C.M.C.R. in its next public pleading on the matter no later than October
16, 2015.
Meanwhile the government continues to work seven days a week to comply with the
Commissions 24 June 2014 Order. AE 120AA. In this Order, the 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 Central Intelligence Agencys 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 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 begun in February to review the full Senate Select
Committee on Intelligence Study of the Central Intelligence Agencys 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 Acts classified information procedures as
necessary to protect national security information that has no bearing upon the case.
Developments in United States v. Mohammad, et al.
When we last met, I mentioned that the Military Judge had ordered all defense-team
members who will have access to classified discovery provided by the government to sign the
Memorandum of Understanding Regarding the Receipt of Classified Information (MOU) by
7 August 2015. AE 13AAAA at 18. The defense moved the Commission to reconsider this
order. But on 1 September 2015, the Military Judge denied the defense motion and once again
ordered all defense-team members who will have access to classified discovery provided by the
government to sign the MOU by 14 September 2015. AE 13GGGG at 3. The MOUinvariably
required of counsel who received classified information in discovery in international terrorism
prosecutions in military commissions as well as in federal civilian courtsobligates defenseteam members to protect genuine sources and methods while handling classified information
provided to them in discovery. Signing it will enable defense-team members to receive
additional responsive discovery in this case.
A Narrow and Necessary Jurisdiction Within Our Justice and Counterterror Institutions
I remarked in July about how law of war detention that is secure, humane, and legitimate
has assisted in protecting innocent peoples against al Qaeda and associated forces. Military
commissions contribute to legitimacy of law of war detention by assuring due process when
detainees are tried for war crimes. But military commissions themselves also directly contribute
to our security, to our compliance with the humane treatment requirements of the Geneva
Conventions, and to our governments legitimacy by occupying a narrow jurisdiction and a
specialized practice within our national security and justice institutions. This jurisdiction and
practice complement, rather than displace, the larger jurisdiction and practice of our federal
civilian law enforcement agencies and our federal civilian courts. Today, military commissions
are fully integrated within our federal framework of criminal justice, are overseen by our federal
civilian appellate courts, and are strictly and properly confined to their narrow law-of-war
jurisdiction, which comprises only demonstrated members of specific armed groups that are
carrying out protracted violence.
The narrow jurisdiction of modern-day military commissions has long roots in the
experience and history of our nations wars. In 1862, Confederate prisoner William Vittenhoff
was convicted by military commission for violating an oath of allegiance he had taken prior to
being locally released on parole in St. Louis, Missouri by Union forces. In the oath, Vittenhoff
had pledged never, by word, act, or deed, [to] knowingly give aid or comfort, or in any manner
encourage armed opposition to the Government of the United States. President Abraham
Lincolnapproving a recommendation from Judge Advocate General Joseph Holtremitted
(cancelled) the military commissions death sentence against Vittenhoff. Lincoln, who as
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Commander-in-Chief was the reviewing authority for military tribunals a century and a half
before Congress passed the first comprehensive military commissions statute, explained his
action by reasoning that [n]othing [was] proved against the prisoner after he had taken the oath
of allegiance, except the utterance of very disloyal statements. General Orders, No. 230, War
Department, Adjutant Generals Office, Washington, July 23, 1863. In other words, [n]o acts
[were] shown which would warrant the sentence of death. Id. (emphasis in original). The nowcodified requirement that the government prove acts taken by the accused himself, see 10 U.S.C.
950t(29), is thus consistent with an enduring principle first articulated by Colonel William
Winthrop. Our Supreme Court has called Winthrop the Blackstone of Military Law, citing
him with approval for noting that military commission jurisdiction should be limited to trying an
accused for his overt acts, not merely for his intentions. Winthrop footnoted Lincolns action in
the Vittenhoff case when identifying this principle in his famous 1886 and 1896 treatises,
Military Law and Precedents.
Military commissions today adhere to Lincolns and Winthrops limiting principle by
seeking to hold members of al Qaeda and associated forces accountable for acts allegedly
committed by the accused themselves in violation of the law of war.

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 Task Force Guantanamo and
Naval Station Guantanamo Bay.