CHIEF PROSECUTOR MARK MARTINS
REMARKS AT GUANTANAMO BAY
17 MARCH 2017
Good afternoon. Yesterday, the Military Commission convened to try Abd Al Rahim
Hussayn Muhammad Al Nashiri completed another pre-trial session 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 during This Pre-Trial Session
Over the past two weeks, the Commission addressed several matters by examining the
parties’ written briefs, hearing oral argument, and taking substantive testimony from 13
witnesses in 26 hours of testimony. During this session the government began the process of
admitting evidence through the live testimony of eleven witnesses—an important milestone on
the path towards bringing this case to trial. The government has admitted 41 photographs into
evidence and has begun laying the foundation for the admission of 57 pieces of physical
evidence. In addition, the Commission continued to resolve pre-trial motions. Specifically, the
Commission:


Heard a status update from the defense, but no argument, concerning a defense
request for linguist support for the translation of audio recordings the government
produced in discovery for which it provided notice in Appellate Exhibit 045LLL.



Heard argument on Appellate Exhibit 092HH, a defense motion to compel discovery
related to Appellate Exhibit 092AA (government supplement to Appellate Exhibit
092U, government response to defense motion to abate proceedings and for
appropriate relief due to alleged destruction of evidence referenced in Appellate
Exhibit 092).



Granted a defense motion to compel the production of four witnesses in support of
Appellate Exhibit 354, a defense motion to abate proceedings due to alleged
destruction of videotapes of Mr. Al Nashiri’s interrogations.



Received testimony, heard argument, and partially decided various requests for relief
attendant to Appellate Exhibit 359, a defense motion that the Accused be housed near
the courtroom while the Commission is in session; these attendant matters included
AE 359H, a defense motion to compel production of writings used by the Senior
Medical Officer (SMO) to refresh his recollection; Appellate Exhibit 359I, a defense
objection to the government’s request that examination of the Senior Medical Officer
be conducted in a manner protective of national security information; Appellate
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 Exhibit 359J, a defense motion to permit defense consultant Dr. Sondra Crosby to
testify and become part of the provision of the Accused’s medical care; and Appellate
Exhibit 359K, a defense motion to limit the scope of the government’s crossexamination should the Accused testify in support of Appellate Exhibit 359. As the
Military Judge had previously heard, in December 2016, testimony from the detention
facility commander and had indicated, following the SMO’s testimony this session,
that he did not doubt the Accused’s motion sickness, the defense declined to call the
Accused as a witness. From the bench, the Military Judge indicated that the defense
motion in Appellate Exhibit 359 would be denied, with written ruling to follow.


Heard argument on Appellate Exhibit 365C, a government motion by special trial
counsel for an interim order prohibiting defense browsing of classified systems in a
session not attended by the normal prosecution trial team.



Heard argument on Appellate Exhibit 367, a defense motion to compel Joint Task
Force-Guantanamo to allow defense counsel, as well as defense expert Dr. Crosby,
access to Accused’s current medical records and current medical team.



Heard argument on and granted Appellate Exhibit 369, a government motion to
conduct a deposition of Ahmed Mohammed Ahmed Haza Al Darbi, indicating that he
would schedule the deposition for the week of 31 July to 4 August.



Heard argument on Appellate Exhibit 369D, a defense motion to compel production
of discovery related to Darbi, a motion the government in substantial part did not
oppose.



Received testimony and heard argument on Appellate Exhibit 371, a defense motion
for an order requiring specific procedures for government disclosure of Mr. AlNashiri’s medical and psychological records; witness testimony comprised that of
Captain Hsienjan Huang, who had been appointed Special Trial Counsel to review
psychological records and had produced such records to the defense, along with a
detailed log, on 3 March. Having taken the overall motion under advisement, the
Commission did deny Appellate Exhibit 371D, a corollary defense motion to compel
production of evidence regarding governmental use of the Accused’s psychological
records.

In addition to the rulings noted above, the Commission ruled that Appellate Exhibit 372,
a motion from members of the press objecting to the Commission taking testimony from Mr. Al
Nashiri in a closed hearing, was moot in light of the defense declining to call the Accused as a
witness on Appellate Exhibit 359. As mentioned earlier, the Military Judge indicated that he
would deny that defense motion. While not objecting per se to the Accused testifying in open
session—and in fact having actively worked to enable public litigation of the Accused’s
conditions of detention—the government had on 15 December 2016 opposed the Accused
testifying without proper use of the Commission’s classified information procedures. As of that
date, the defense had not submitted the required Military Commission Rule of Evidence
(M.C.R.E.) 505(g) notice, and the government had maintained that the use, relevance, and
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 admissibility of the prospective evidence needed further consideration by the Commission so as
to protect national security information prior to the Accused testifying in public.
In other business this session, the Commission ruled that 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 was moot. Meanwhile, on Tuesday, 7
March 2017, the Commission 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 use. 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, 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 R.M.C. 806 regarding Appellate Exhibit 369, relating to the
deposition of al Darbi. The Commission had previously ruled in December 2016 that it would
hear argument regarding Appellate Exhibit 92S in closed session as well. See Appellate Exhibit
92X. The Commission ruled on 8 March 2017, in Appellate Exhibit 369J, that pursuant to
M.C.R.E. 505 and Rule for Military Commissions (R.M.C.) 806, it would conduct proceedings
on these matters in closed session, but that following the closed session, a redacted unclassified
transcript would be prepared and provided to the public. As I have previously mentioned, a
closed session must meet the same strict criteria demanded in federal civilian criminal trials as
well as courts-martial, and thus must be narrowly tailored and must preserve on the record the
rationale and basis for 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 Thursday, 9
March, lasted 34 minutes. Of the more than 41 hours on the record over the past two weeks,
only 1.3 percent of that time was 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 eight closed sessions. Total closure comprising these eight closed sessions
amounts to 4.9 percent of the proceedings to date. This means that even for a pre-trial process
involving several challenges and other matters implicating classified information, 95.1 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.

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 Work Completed Reflects Methodical Implementation of Law and Progress Toward Trial
To date, the parties have briefed in writing 436 substantive motions and have orally
argued 327 motions. Of the 436 motions briefed, 54 have been mooted, dismissed, or
withdrawn; 335 have been ruled on by the judge; and an additional 17 have been submitted and
are pending a decision. The Commission has received testimony from 33 witnesses in more than
58 hours of testimony, with all witnesses subject to cross-examination to assist it in deciding pretrial motions and consider the admissibility of evidence. The parties have filed 29 declarations.
The government has provided over 265,930 pages of discovery to the defense.
During the session, the Military Judge rescheduled a week of proceedings from July to
September. He thus directed that the Commission would be in session 31 July to 4 August, 11 to
29 September, and 6 to 17 November 2017. He also stated that he planned to soon issue a final
discovery order as well as a trial order for 2018.
Upcoming Proceedings in United States v. Mohammad, et al.
On Monday, 20 March 2017, the 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 will hold another series of pre-trial sessions without
panel members present. These five Accused stand charged with plotting the attacks of
September 11th, which resulted in the deaths of nearly 3,000 persons. Like before, I emphasize
that the charges 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.
We will be joined by the family members of Michael Baksh, Deora Bodley, John
D’Allara, and Brady Howell. We will also be joined by survivor Frank Favilla. September 11,
2001 was Michael Baksh’s first day as an insurance executive at Marsh & McLennan, on the
94th floor of the North Tower. Michael loved all kinds of music, and in a previous career he was
an artist, band member, and producer. Deora Bodley, at age 20, was the youngest passenger
aboard United Airlines flight 93. She was a student at Santa Clara University studying French
and psychology. She was a dedicated volunteer, working as a tutor in an afterschool program
and as a peer counselor to troubled teens. John D’Allara was a detective and rescue specialist
with the New York Police Department. John’s twin brother says they were complete opposites,
John being more academically driven. He was a teacher before starting with NYPD.
Brady Howell was a Presidential Management Intern at the Pentagon on September 11,
2001. He had recently obtained a master’s degree in public administration from Syracuse
University. Frank Favilla was a NYPD detective, injured while working at the World Trade
Center site in September 2001. Frank retired from NYPD in 2004 after a 20-year career. We
honor these individuals and their families, and their inspiring examples provide inexhaustible
determination to move these cases to trial.

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 During this session, the Commission will consider 40 pretrial motions. See Appellate
Exhibit 495. I would like to highlight a number of motions that represent the prosecution’s
efforts to comply with our ongoing discovery obligations, our efforts to progress towards trial,
and motions that raise important legal issues. Appellate Exhibit 478, the government’s renewed
motion for a trial scheduling order, is our latest effort to obtain a trial date. Appellate Exhibits
177, 310, 330, 333, 336, 394, 404, 444, 493, 494, and 496 are defense discovery motions seeking
production of various types of documents and information. Appellate Exhibit 014L is a defense
motion to amend Protective Order # 2 to allow disclosure of sensitive information to defense
experts and consultants without prior authorization from the Commission. Appellate Exhibit
018PP is a defense motion to compel the government to show cause for an alleged violation of
Appellate Exhibit 018U relating to the alleged improper handling of privileged attorney-client
information. A few of the motions raise legal arguments, including Appellate Exhibit 475, a
defense motion to dismiss for a structural conflict of interest, Appellate Exhibit 488, a defense
motion to dismiss for lack of subject matter jurisdiction due to the alleged absence of hostilities,
and Appellate Exhibit 492, a defense motion to dismiss Charges IV, V, and the Additional
Charge as unconstitutionally vague. Again, this is only a sample of the motions that the
Commission will consider during this session. The full docket order is in Appellate Exhibit 495
and can be found on the Commissions website.
Methodical Movement Toward Trial
To date, the parties have briefed in writing some 287 substantive motions and have orally
argued some 136 motions. Of the 287 motions briefed, 20 have been mooted, dismissed, or
withdrawn; more than 200 have been ruled on by the Judge; and 38 have been submitted for and
are pending decision. The Commission has received testimony from 37 witnesses in more than
93 hours of testimony, with all witnesses subject to cross-examination to assist it in deciding
pretrial motions. The parties have filed 234 exhibits and more than 111 declarations alleging
facts and providing references to inform the Judge’s consideration of these issues. Meanwhile,
the government has provided more than 384,370 pages of discovery to the defense.
As part of the discovery process, the Military Judge has also recently granted ten
government motions to provide substitutions to the defense in discovery pursuant to Military
Commission Rule of Evidence 505, which protects national security information while ensuring
that the Accused receive all information that is noncumulative, relevant, and helpful to legally
cognizable defenses, rebuttal of the prosecution’s case, and sentencing. The Commission’s
rulings can be found in Appellate Exhibits 308V, 308ZZ, 308AAA, 308BBB, 308GGG,
308HHH, 308KKK, 308JJJ, 308NNN, and 308VVV. While the Military Judge did recently deny
two other motions requesting substitutions, these are being resubmitted, and the government
remains committed to completing the discovery process underway.
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For their continuing support to these proceedings, 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.

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