CHIEF PROSECUTOR MARK MARTINS
REMARKS AT GUANTANAMO BAY
16 DECEMBER 2016
Good afternoon. Today the Military Commission convened to try the charges against
Abd Al Rahim Hussayn Muhammad Al Nashiri 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 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.
Matters Addressed by the Commission
This week the Commission addressed several matters by examining the parties’ written
briefs, hearing oral argument, and taking testimony from four witnesses in more than 6 hours of
testimony. Specifically, the Commission:


took testimony from two witnesses and heard argument on Appellate Exhibit 332X, a
renewed defense motion to dismiss the case on unlawful-influence grounds. The
Judge took the motion under advisement.



heard argument on Appellate Exhibit 332AA, a defense motion to compel discovery
related to Appellate Exhibit 332X mentioned above. The Judge denied the defense
motion. See Appellate Exhibit 332BBB.



heard argument on Appellate Exhibit 353, a defense motion to dismiss for alleged
violations of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405
U.S. 150 (1972), regarding Mohsen Al-Fadhli. The Judge indicated a ruling will be
forthcoming.



heard argument on Appellate Exhibit 358, a defense motion to compel production of
the Accused’s medical and psychiatric or psychological records from 1 January 2016
through 20 August 2016. The Judge took the motion under advisement.



heard argument on Appellate Exhibit 362, a defense motion to compel funding for
attorney Bernard Kleinman. The Judge indicated a ruling will be forthcoming.



heard argument on Appellate Exhibit 354C, a defense motion to compel witnesses
related to Appellate Exhibit 354 (a defense motion to abate the proceedings due to
alleged destruction of evidence regarding videotapes of the Accused’s interrogations).
The Judge took the motion under advisement.

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

heard argument on Appellate Exhibit 327C, a defense motion to compel witnesses
related to Appellate Exhibit 327 (a defense motion to suppress custodial statements
made by Jamal Al-Badawi). The Judge took the motion under advisement.



heard argument on Appellate Exhibit 342, a defense motion to compel the convening
authority to grant testimonial immunity to Abdul Al Salam Al-Hilah. The Judge took
the motion under advisement.



took testimony from two witnesses, in open and closed session, on Appellate Exhibit
359, a defense motion to house the Accused at the ELC during Commission sessions.
The Judge indicated additional testimony will be taken during the March 2017
sessions.



heard argument, in open and closed session, on Appellate Exhibit 92S, a defense
motion to abate the proceedings due to alleged destruction of evidence. The defense
conducted voir dire of the Judge. The Judge took the motion under advisement.



ruled on Appellate Exhibit 338D, a defense motion to strike Appellate Exhibits 338C,
365, and 365A. The Judge denied the defense motion. See Appellate Exhibit 338G.

Separately on Monday, 12 December, the Judge heard from Government Special Trial Counsel
on Appellate Exhibit 365C (GOV STC) in a short session not attended by the normal prosecution
trial team.
On Tuesday, 13 December, and Thursday, 15 December, the Commission met with
defense and prosecution lawyers for in camera hearings 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 Appellate Exhibit 92S, Appellate Exhibit 354C, and Appellate Exhibit
359. 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 is to isolate and minimize that portion of
proceedings that truly may need to be closed.
After holding the in camera hearings, the Commission determined that there was a need
to conduct a closed session under Rule for Military Commissions (“R.M.C.”) 806 regarding
Appellate Exhibit 92S and Appellate Exhibit 359. 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.

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The commitment to this standard has not changed. The closed session held Friday, 16
December, lasted 2 hours and 29 minutes. Of the more than 17 hours of sessions over the past
week, only 14.3 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 4.5 percent of the proceedings to date. This means that even for a pretrial process involving several challenges and other matters implicating classified information,
approximately 95.5 percent of that process has been open to the public. The closed portions
relate only to interlocutory matters, meaning that they do not deal with the ultimate questions of
guilt or innocence of the accused or, if convicted, of punishment. 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.
On Friday, 16 December, prosecution lawyers met with the Military Judge for an ex
parte, in camera presentation under 10 U.S.C. § 949p-4(b)(1) and M.C.R.E. 505(f)(2)(B)
regarding Appellate Exhibit 92S. Under this rule, the prosecution may request substitutions and
other relief from classified discovery “in the form of an ex parte presentation to the extent
necessary to protect classified information, in accordance with the practice of the Federal courts
under the Classified Information Procedures Act (18 U.S.C. App.).” The rule requires a military
judge to seal and preserve the presentation for appellate review, if the military judge grants relief
after the presentation. Under 10 U.S.C. § 949p-4(b)(3) and M.C.R.E. 505(f)(2)(C), the military
judge must grant relief if he finds that it “would provide the accused with substantially the same
ability to make a defense as would discovery of or access to the specific classified information.”
Work Completed to Date Reflects Methodical Implementation of Law
As I mentioned at the beginning of the week, on 30 September 2016 the government
notified the Commission in Appellate Exhibit 120AAAAAA that the United States is now in
compliance with the Commission’s 24 June 2014 Order (AE 120AA) and with its affirmative
discovery obligations. The 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 120AAAAAA provides the Military Judge key information that should better
equip him to prescribe the “time, place and manner” of these proceedings, including trial on the
merits. R.M.C. 701(a)(3).
To date, the parties have briefed in writing some 431 substantive motions and have orally
argued some 321 motions. Of the 431 motions briefed, 54 have been mooted, dismissed, or
withdrawn; 334 have been ruled on by the Commission; and an additional 19 have been
submitted and are pending decision. The parties have filed 36 exhibits and 29 declarations
alleging facts and providing references to inform the Commission’s consideration of these issues.
The Commission has conducted numerous sessions totaling over 192 hours on the record. The
government has provided more than 265,000 pages of discovery to the defense. This
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information, while never meant to imply that justice can be reduced to numbers, nonetheless
reflects methodical and deliberate movement toward trial.
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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 for their tireless support to these proceedings.

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