CHIEF PROSECUTOR MARK MARTINS
REMARKS AT GUANTANAMO BAY
8 JANUARY 2017
Good evening. This week the Military Commission convened to try the charges against
Abd al Hadi al-Iraqi will hold its tenth pre-trial session 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 servicemembers and civilians, and
caused damage to or destruction of property.
The charges against Abd al Hadi 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 will provide background for this week’s pre-trial sessions, and then I will survey
important developments in ongoing military commission cases.
Developments in United States v. Abd al Hadi al-Iraqi
The Docketing Order for this week’s pre-trial sessions is located at Appellate Exhibit
69, and it is available on the Office of Military Commissions’ website. According to the
Docketing Order, the Commission will hear argument and receive evidence, as required, with
respect to several motions.
One motion on the docket, Appellate Exhibit 64, is a Defense Objection to AE 3G,
which was a memorandum detailing two Special Trial Counsel. The Defense has argued that
“[n]either the MCA, nor the Rules for Military Commissions, references a role for Special
Trial Counsel as defined by this memorandum or grants the authority to the Chief Prosecutor to
create such a position and detail personnel to such a created position within a military
commission.” In Appellate Exhibit 64B, the Government responded to the Defense’s motion.
The Government maintains that the Defense Motion does not accurately interpret the relevant
provisions of the controlling regulation. These provisions confer on the Chief Prosecutor
general and broad authority for the overall prosecution (see R.T.M.C. 8-1) but also
contemplate him assigning discrete responsibilities to trial counsel not enumerated in the
statute or regulation. The Government further maintains that given the lack of limiting
language in R.T.M.C. 8-2, the specific duties of the Chief Prosecutor are not limitations, but
rather established minimum requirements and that military commissions have previously and
repeatedly recognized the legitimacy and the utility of Special Trial Counsel representing the
Government on limited issues before the commissions in order to protect Defense equities and
in the interests of justice. A recent ruling in the military commission of United States v. Abd
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 Al Rahim Al-Nashiri, for instance, denied a similar defense motion that claimed the detailing
of Special Trial Counsel was beyond the authority of the Chief Prosecutor. See United States
v. Al Nashiri, AE 338G/AE 365H.
Appellate Exhibit 66 is a Defense motion requesting that the Commission order the
Government to “preserve and maintain all books, papers, documents, photographs, tangible
objects, buildings, or places as it relates to the torture, mistreatment, and abuse of [Hadi Al
Iraqi], any known/unknown co-conspirators and witness [sic], including the preservation of
existing detention facilities, domestic and overseas, at which time [Hadi Al Iraqi],
known/unknown co-conspirators, and witnesses were detained.” The Defense also seeks an
order for the Government to preserve any other exculpatory/helpful information. The Defense
has argued that the Commission must grant its motion to ensure that the Government and the
proceedings are in full compliance with the United States Constitution, Rule for Military
Commissions (“R.M.C.”) 701(c), and Rules of Evidence 304(a)(1) and 304(a)(3) and related
rules of discovery and evidence. The Government opposes the motion, maintaining that
longstanding rules of criminal law and procedure applicable in this Commission do not
contemplate the additional, extraordinary imposition of a sweeping and ill-defined preservation
order. Because the Government’s response (AE 66A) contains certain classified information it
maintains is important to the military judge’s consideration of whether the Defense can meet
its burden of persuasion, some portion of the argument on the motion might take place in a
closed session under R.M.C. 806.
Finally, there is one motion that is on the Docketing Order that will not be argued.
Appellate Exhibit 68 was listed on the Docketing Order, but after the Docketing Order was
filed the Defense filed a Motion for Leave to Withdraw Appellate Exhibit 68. The
Government did not oppose the Defense motion. The Military Judge granted the Defense’s
Motion on 15 December 2016. The Commission has not issued an amended docketing order
yet, but we do not anticipate any further argument with respect to Appellate Exhibit 68.
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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.

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