CHIEF PROSECUTOR MARK MARTINS REMARKS AT GUANTANAMO BAY 16 OCTOBER 2016 Good evening. This past Wednesday marked the 16th anniversary of the attack on the USS COLE. As you know, that attack killed 17 American sailors and injured 37 others while their ship was peacefully refueling in Aden Harbor, Yemen. Members of the USS COLE prosecution team traveled to the COLE’s homeport of Norfolk Naval Station for the Memorial Service commemorating the attack on the USS COLE on 12 October 2016. The attendees at the ceremony included several family members and former crew members of the 17 sailors killed that day. A benediction was provided by a Navy Chaplain and the names of each of the fallen were read at the memorial erected to honor them. We are duly joined by the family members of one of the sailors who died on board the USS COLE, as well as several sailors who were stationed on the USS COLE and also endured the attack. These family members and fellow sailors 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 retired Marine Corps Gunnery Sergeant Jesse Nieto and his fiancée, Shirley Hardcastle, who are here to remember Gunnery Sergeant Nieto’s son, Petty Officer Second Class Marc Nieto. Retired Master Chief Petty Officer Paul Abney served on the USS COLE at the time of the attack. Master Chief Abney is accompanied by his wife Janeta. Retired Chief Petty Officer Tiffany Putman, injured during the attack, is here for the first time viewing proceedings at Guantanamo. She is here with her husband, Shawn. Joining us again is Retired Lieutenant Denise Woodfin, who was a supply officer aboard the USS COLE. We thank you all for being here with us. You honor us—and the memory of your loved ones—with 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. Key Milestones to Date As I told the media and other observers last week, recognizing these families’ example and our solemn duty to them, we will oppose unnecessary delays. We will also challenge halftruths, expose rhetoric unburdened by fact as such, and preclude spectacle and manufactured speculation from posing as concern for law or transparency. We make this commitment on their and the American peoples’ behalf wholeheartedly, knowing that it requires enormous effort, working seven days a week and over holidays for extended periods of time; knowing that honest professional effort will yield milestones, which, despite their obvious significance, some will still deny or predictably deride; knowing that our work requires a painstaking process, but appreciating it as necessary to uphold both justice and security; and knowing that, despite our determined efforts to date, more work remains to be done. Our commitment has not waned. 1 On 30 September 2016, the prosecution notified the Military Commissions in United States v. Mohammad, et al., United States v. Al Nashiri, and United States v. Abd al Hadi that the government is in compliance with its discovery obligations to date. While the Accused and their counsel will receive additional forms of discovery 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 Commissions, the government has provided the Commissions key information that should better equip them to further specify the time, place, and manner of remaining discovery and to prescribe the timing, manner, and order of these proceedings, including trial on the merits. AE 397G, Mohammad; AE 120AAAAAA, Al Nashiri; AE 57D, Abd al Hadi. As I mentioned during the last Al Nashiri hearing in September, over the summer, our first reviewing court, the United States Court of Military Commission Review (“U.S.C.M.C.R.”), reinstated charges that had been dismissed and evidence that had been excluded. The U.S.C.M.C.R.’s reviewing court, the United States Court of Appeals for the District of Columbia Circuit, also denied a longstanding Al Nashiri mandamus petition challenging the Commission on the ground that the charged criminal conduct did not take place in the context of hostilities. These decisions cleared the way for the proceedings to fully resume, and they did resume last month. Since then, the Commission has denied two defense motions to abate the proceedings (see AE 348L and AE 350E) and another defense motion to dismiss certain charges (AE 351D). This week’s sessions are scheduled to occur from 17 through 19 October 2016. See AE 203P; AE 361. Though we are entering a new phase in this case, we remain mindful that our work is not done. We continue moving toward trial in this sharply adversarial system, reaffirming our commitment to the pursuit of a sustainable administration of justice under the rule of law. In the meantime, the process, while likely to last many more months and thus understandably frustrating to the victims and their family members, exposes neither the public nor the Accused to any danger or harm. Al Nashiri is being lawfully, humanely held as a belligerent, with his detention under the law of armed conflict subject to challenge by petition for writ of habeas corpus in federal civilian court. Developments and Upcoming Proceedings in United States v. al Nashiri 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. He is also represented by a zealous and well-resourced defense team, though I am fully aware that team will seek to persuade you otherwise regarding the resourcing aspects. 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 2 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. The Docketing Order can be found at Appellate Exhibit 361. The Order lists 25 motions, orders, and rulings 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, orders and rulings that had previously been issued by the Commission and on fourteen motions that had previously been mooted by the Commission. The Commission also has indicated its intent to hear argument and receive evidence related to four motions that it has not previously ruled on or mooted. All four motions have been fully briefed—meaning the Commission has received written briefs from the parties—and their docketing for this week means that the Military Judge intends to take evidence as necessary and hear oral argument on some or all the issues raised by the motions. Among those motions is Appellate Exhibit 332X, 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. Filings to Date To date, the parties have briefed in writing 431 substantive motions and have orally argued some 313 motions. Of the 431 motions briefed, 54 have been mooted, dismissed, or withdrawn; 318 have been ruled on by the Judge; and an additional 17 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 164 hours on the record. The government has provided more than 265,000 pages of discovery to the defense. 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. * * * * 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. 3