CHIEF PROSECUTOR MARK MARTINS REMARKS AT GUANTANAMO BAY 14 OCTOBER 2016 Good afternoon. Today 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. Matters Addressed by the Commission during These Pre-Trial Sessions Over the past week, the Commission addressed some 18 matters on the record, again exhausting all active requests for relief on the docket that had been fully briefed and were prepared for judicial consideration. These matters comprised the following: • The parties updated the Judge on the status of the government’s efforts to review the classification of certain filings in the Appellate Exhibit 425 series. This review will enable more of the argument to occur in open session. • The parties discussed the status of Appellate Exhibit 119 after Mr. al Hawsawi withdrew this motion to dismiss the case and to compel a status determination under Article 5 of the Geneva Conventions. The Judge granted the motion to withdraw. AE 119K. Appellate Exhibit 119 was a motion that had portended the extensive taking of evidence because an accused in the military-commissions system has a right to challenge his alleged status and to require the government to prove his unprivileged belligerency in order for the commission to proceed to trial. With the withdrawal, none of the Accused is presently challenging their status as noncitizen unprivileged enemy belligerents, the central component of jurisdiction. • The Judge took testimony from four witnesses on Appellate Exhibits 18PP and 18PP (MAH Sup), Mr. al Hawsawi’s motion seeking the government to show cause for its alleged violation of the written communications management order (AE 18U). • The Judge heard oral argument on Appellate Exhibit 13XXXX, a defense motion to reconsider the Judge’s order at Appellate Exhibit 13QQQQ and to modify the Third Amended Protective Order #1. The Judge took the motion under advisement. • The Judge heard oral argument on Appellate Exhibit 227, Mr. al Hawsawi’s motion to compel the government to allow his defense team to receive and share unclassified, unredacted discovery with him. The Judge took the motion under advisement. 1 • The Judge heard oral argument on Appellate Exhibit 336, Mr. al Hawsawi’s motion to compel the government to produce unredacted reports from the Detainee Information Management System and to allow his defense team to share the reports with him. The Judge took the motion under advisement. • The Judge heard oral argument on Appellate Exhibit 161 (AAA 2nd Sup), Mr. Ali’s supplement to his motion to require the government to comply with Military Commission Rule of Evidence (“M.C.R.E.”) 506 regarding the redaction of unclassified discovery. The Judge took the motion under advisement. • The Judge heard oral argument on Appellate Exhibit 152JJJ, Mr. Binalshibh’s motion to compel the convening authority to grant immunity. The Judge took the motion under advisement. • The Judge heard oral argument on Appellate Exhibit 447, a defense motion to dismiss the case, arguing that the Military Commissions Act of 2009 (“M.C.A.”) violates the Confrontation Clause of the U.S. Constitution. The Judge took the motion under advisement. • The Judge heard oral argument on Appellate Exhibit 449, a defense motion to dismiss the case on the ground that the M.C.A. violates the Compulsory Process Clause of the U.S. Constitution. The Judge took the motion under advisement. • The Judge heard oral argument on Appellate Exhibit 419, a defense motion to compel the government to produce medical records from Mr. al Hawsawi’s CIA captivity. The Judge took the motion under advisement. • The Judge heard oral argument on Appellate Exhibit 330, Mr. Ali’s motion to compel the government to produce complete, unredacted medical records. The Judge took the motion under advisement. • The Judge heard oral argument on Appellate Exhibit 409, Mr. Bin ‘Attash’s motion to compel discovery of documents captured during the raid in which Osama bin Laden was killed. The Judge took the motion under advisement. • Mr. Ali submitted on the briefs Appellate Exhibit 432, his motion to compel the government to produce policies and procedures for the collection and preservation of evidence from detainees. The Judge took the motion under advisement. • The Judge heard oral argument on Appellate Exhibit 434, a defense motion to compel the government to produce discovery concerning Mohammed al Qahtani. The Judge took the motion under advisement. 2 • The Judge took testimony from a witness on Appellate Exhibit 373, a defense motion to dismiss, alleging government intrusion into the attorney-client relationship. • The Judge heard oral argument on Appellate Exhibit 266, a defense motion for an order to protect the right to a fair trial. The Judge took the motion under advisement. • The Judge heard oral argument on Appellate Exhibit 359, a government motion for the Commission to inquire into the circumstances of representation and impose procedural requirements on joint defense agreements to further safeguard the Accused’s right to conflict-free counsel. The Judge took the motion under advisement. Also, on Thursday, 13 October 2016, the Judge met with defense and prosecution lawyers for an in camera hearing under 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 regarding Appellate Exhibits 18PP, 18OO, 18TT, 18WW, 255, 284, 328, 333, 367, 367C, 404, and 442. 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 itself—that 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 judge’s 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 Commissions 806 regarding Appellate Exhibits 18PP, 18OO, 18TT, 18WW, 255, 284, 328, 333, 367, and 404. As I have previously mentioned, a closed session must meet the same strict criteria demanded in federal civilian criminal trials— namely, the Press-Enterprise II factors—and 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 case-specific findings on the record justifying closure. The commitment to this standard has not changed. The closed session held today lasted one hour and 48 minutes. Of the more than 14 hours of sessions over the past week, only 12 percent were closed. This percentage will decrease when the Commission releases the transcript of the closed session, excising only classified information. To date, the Commission has held seven closed sessions. Total closure comprising these seven 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. This percentage will increase when the Commission releases transcripts from other closed sessions. 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. 3 Work Completed to Date Reflects Methodical Implementation of Law To date, the government has provided more than 350,000 pages of discovery to each defense team. The parties have briefed in writing some 226 substantive motions and have orally argued some 78 motions. Of the 226 motions briefed, 15 have been mooted, dismissed, or withdrawn; 97 have been ruled on by the Judge; and 71 have been submitted for and are pending decision. The Commission has received testimony from 36 witnesses in more than 92 hours of testimony, with all witnesses subject to cross-examination to assist it in deciding pre-trial motions. The parties have filed 239 exhibits and more than 110 declarations alleging facts and providing references to inform the Judge’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. As I mentioned at the beginning of the week, on 30 September 2016 the government notified the Military Commission in Appellate Exhibit 397G that the United States is now in compliance with the Commission’s 5 April 2016 Trial Conduct Order (AE 397F) and with its affirmative discovery obligations. The Trial Conduct Order had directed the government to produce discoverable information relating to the Central Intelligence Agency’s former Rendition, Detention, and Interrogation Program within a ten-category construct. While Accused and counsel will be receiving additional forms of discovery as trial approaches, and while large amounts of classified discovery that are subject to government requests for substitutions and other relief will yet require an undetermined period of review by the Commission, the government’s notice in Appellate Exhibit 397G provides the Military Judge key information that should better equip him to prescribe the timing, manner, and order of these proceedings, including trial on the merits. This marks a significant milestone. To the family members of the Fallen who were in attendance today and who may be able to hear these words: we know that viewing these proceedings can be difficult for you. We know that the pain may be particularly acute in this first month following the 15th solemn anniversary of the September 11th attacks. But we hope that you know your country will never forget what happened and will never cease to pursue justice until justice is done. In the meantime, the Accused are and will be lawfully, securely, and humanely detained under Geneva Conventions Common Article 3 at Guantanamo Bay. * * * * The proceedings this week were only possible because of extraordinary efforts of so many technicians, logistical support staff, and security personnel. The aftermath of Hurricane Matthew presented them great challenges, every one of which they surmounted in a characteristically cheerful manner. We know you are tired, and we are in awe of your professionalism. For your continuing indispensable role in these proceedings, I commend and thank you, as I also comment and thank all of the Soldiers, Sailors, Airmen, Marines, Coast Guardsmen, and government civilians of Joint Base Andrews, Joint Task Force Guantanamo, and Naval Station Guantanamo Bay. 4