CHIEF PROSECUTOR MARK MARTINS
REMARKS AT GUANTANAMO BAY
5 MARCH 2017
Good evening. The upcoming two weeks of sessions in the military commission of United
States v. Abd Al Rahim Hussayn Muhammad Al Nashiri will be the first proceedings for the case
thus far this year. We know the families of those killed and injured in the charged attacks, as well as
those who survived the attacks themselves, are anxious for the trial to begin and for justice to be
done, and we are prepared to continue to make important progress towards that goal. We are
honored to have sailors from on board the USS COLE in attendance, including several who were
wounded. These sailors observe the proceedings pursuant to modern laws that protect the interests
of others, in addition to the accused, who have a direct stake in the trial process. Their participation
results from a now well-accepted practice with the United States justice system; still, their
attendance can never be routine, as what might appear to be a dry legal proceeding can powerfully
affect them. Their presence reminds all of us that for those who have lived a treacherous attack
firsthand, the experience and the loss can never be left behind.
With us will be retired Navy Gas Turbine System Technician Mechanical Chief Cathie
Lopez, who was on board the USS COLE working in the oil laboratory with two other sailors one
deck below where the explosion impacted the ship. Petty Officer Christopher Nolf was on the
bridge when the attack occurred. Also joining us will be retired Command Master Chief James
Parlier, who was the senior enlisted advisor to the Captain of the COLE. Retired Senior Chief Petty
Officer Joe Pelly was aboard at the time of the attack as the ship’s Storekeeper. Retired Operations
Specialist Chief Tiffany Putman, who was injured in the attack, will be here, as will Retired
Lieutenant Commander Denise Woodfin, who was the Ship’s Supply Officer, and who also was
injured . While this trial process has taken a long time, we want these veterans and shipmates of
the fallen to know that the United States will not rest until justice is done.
Developments and Upcoming Proceedings in United States v. Al Nashiri
Al Nashiri is charged with conspiracy, 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 represented
by a zealous and well-resourced defense team, including an experienced lead counsel who has been
representing al Nashiri since before he was arraigned in 2011. Although I will not comment on the
specifics of any motions pending before a military commission, I am able to provide legal context
and background. Matters under consideration by a military commission in this or any other
particular case are authoritatively dealt with by the presiding Judge.
Since the sessions in December of 2016, there have been filings on a variety of issues. The
U.S. Military Commissions website includes a complete listing of all defense and government
motions, responses, and replies, as well as Commission rulings. The Military Judge’s rulings since
our last session have included the granting of funding for a defense mitigation specialist (Appellate
Exhibit 362D), denial of a defense motion to compel further discovery concerning alleged ex parte
communications between the United States Court of Military Commission Review (U.S.C.M.C.R.)
and the government (Appellate Exhibit 355Q), denial of a defense motion to dismiss the charge of
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 conspiracy (Appellate Exhibit 48U), denial of a defense motion for alleged unlawful command
influence (Appellate Exhibit 32CCC), denial of a defense motion to dismiss charge VII (Attacking
Civilians) for multiplicity (Appellate Exhibit 234D), and denial of a defense motion to dismiss
charge VIII (Attacking Civilian Objects) for multiplicity (Appellate Exhibit 235D). There are also
several rulings and pleadings that are awaiting classification review and that should soon be posted.
The Docketing Order is Appellate Exhibit 370. The Commission will be in session without
panel members under its authority to address pre-trial matters before the Military Judge alone.
During the first week we can anticipate the proceedings will concentrate on several defense and
government motions concerning discovery and evidentiary issues, including the government’s
motion seeking deposition of a prospective witness. In accordance with the Commission’s
previously issued order in Appellate Exhibit 207C, most of the second week will consist of
prosecutors laying evidentiary foundations for 176 physical items previously identified to the
defense. In addition, prosecutors will call eight to ten witnesses, mostly from the Federal Bureau
of Investigation, who will testify concerning the chain of custody and the origins of the exhibits the
government seeks to take steps toward admitting into evidence.
Specifically, the Docketing Order lists eight motions that the Commission intends to take
up. See Appellate Exhibit 354 (defense motion to abate proceedings due to destruction of
evidence), Appellate Exhibit 358 (defense motion to compel production of medical records),
Appellate Exhibit 359 (defense motion requesting special housing for the accused), Appellate
Exhibit 365C (government motion by special trial counsel for an interim order prohibiting defense
browsing of classified systems), Appellate Exhibit 367 (defense motion to compel allowing defense
team member Dr. Crosby direct access to medical records), Appellate Exhibit 368 (defense motion
to compel production of discovery pertaining to special trial counsel), Appellate Exhibit 369 (the
aforementioned government motion to conduct deposition of a certain witness), and Appellate
Exhibit 207 (the aforementioned government motion relating to pre-admission of physical
evidence). It is also possible the parties will discuss and the Judge will hear argument on the
impact of two U.S.C.M.C.R. decisions in 2016 on a number of motions, orders, and rulings that had
previously been issued by the Commission and on others that had been mooted by the Commission
but must be taken up again in light of those decisions.
Methodical Movement, Unfinished Work
To date, the government has provided more than 267,740 pages of discovery to the defense.
Also, as of the 30th of September of last year, the government has proposed many thousands of
pages to the Judge for provision to the defense, once appropriate Judge-approved substitutions are
made, so as to protect classified information. This discovery milestone is a critical one, facilitating
firmer scheduling of additional trial milestones by the military judge.
Though we have made substantial progress in the past year, we remain mindful that our
work is not done. In the meantime, Al Nashiri is being securely and humanely held under the
Geneva Conventions. For their vigilance and professionalism, 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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