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CHIEF PROSECUTOR MARK MARTINS
REMARKS AT GUANTANAMO BAY
19 MAY 2017

Good afternoon, everyone. To begin, I would like to say to Rosemary, Abraham, Darra,
Peter, Jim, Patricia, and Steven that we will never forget your husband Eddie, your wife Janice,
your brother Stephen, your father Donald, your wife and mother Moira, and your son Steven.
We can only imagine how difficult these proceedings can be for you, but we admire your
determination to come to Guantanamo and your dignity in this time of renewed grief.
This week marked the completion of another in a series of pre-trial sessions for 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.
These pre-trial sessions were held without panel members present. The five Accused stand
charged with plotting the attacks of September 11th, which resulted in the deaths of nearly
3,000 persons. I emphasize that the charges against the Accused 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.
Matters Addressed by the Commission This Week
The first matter addressed by the Commission this session, Appellate Exhibit
506A(WBA), was a motion seeking abatement because of an alleged conflict of interest.
Specifically, the motion alleged a conflict of interest arising from a lawsuit filed by a former
member of the Bin ’Attash defense team against members of the current defense team. Based on
representations made by counsel for Mr. Bin ‘Attash, the suit alleges defamation of character and
intentional infliction of emotional distress. The Military Judge entertained the defense motion
and permitted defense counsel to supplement its motion by means of an ex parte hearing. The
Commission determined that there was no conflict of interest, and subsequently denied defense
counsel requests to withdraw from the representation of Mr. Bin ‘Attash.
The Commission also heard argument on two defense motions seeking to dismiss all
charges against the Accused due to the alleged lack of subject-matter jurisdiction (Appellate
Exhibit 488(MAH)) and personal jurisdiction (Appellate Exhibit 502(MAH)) stemming from an
alleged absence of hostilities between al Qaeda and the United States before September 11, 2001.
The Government position, available in its briefs and now in the transcript of the oral argument, is
that unless the defense was requesting an alien unprivileged enemy belligerent status
determination—something the Government indeed has an obligation to prove to a preponderance
if challenged—there was no true jurisdictional defect alleged in these motions. Although at one
point the Accused were challenging status (see Appellate Exhibit 119), that challenge was
withdrawn. Per the U.S. Court of Military Commission Review’s decision last year in United
States v. Nashiri (Case No. 14-001), in the absence of a challenge to status, a properly referred
charge sheet and referral process is to be relied upon to proceed to trial. At trial, the Government
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 has an obligation to prove that the conduct in each of the charges took place in the context of and
associated with hostilities. The Military Judge took the matter under advisement.
The defense motion at Appellate Exhibit 490(MAH) seeks to dismiss Charges I, VI and
VII on the ground that the Military Commissions Act provisions punishing Conspiracy,
Hijacking, and Terrorism violate the Ex Post Facto Clause. The defense alleged that the
specified offenses were not law of war violations as of September 11, 2001. The Government
opposed the motion, stating that Congress merely codified longstanding violations of the law of
war. The Military Judge took this matter under advisement.
The Government’s motion in Appellate Exhibit 491 seeks to pre-admit business records
related to activities of the hijackers who carried out the attacks of September 11th. Defense
counsel objected, stating that either it was premature to admit such records or that it was improper
to pre-admit evidence before the start of the proceeding. The Commission heard argument and
took the matter under advisement. In Appellate Exhibit 494, the defense seeks access to 28 pages
redacted from a 2002 congressional investigation into the September 11th attacks. The defense
argued that these pages could be material to defense of the Accused, whereas the government
argued that the defense has not made the requisite showing of materiality.
Other matters taken up by the Judge to determine status and confirm positions of the
parties included the following:
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Appellate Exhibit 335—Defense Motion to Compel Discovery of International
Committee of the Red Cross (ICRC) Records;

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Appellate Exhibit 497—Defense Motion to Compel Production of Durham
Investigation Documents;

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Appellate Exhibit 501—Accused Ali’s Motion to Compel Production of Housing
and Logistics Orders and Plans for Naval Station Guantanamo Bay;

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Appellate Exhibit 445—Defense Motion to Compel Production of Evidence
Requested in DR-254WBA;

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Appellate Exhibit 336—Defense Motion to Compel Non-Redacted Detainee
Information Management System Records.

Though initially scheduled, the Commission did not receive testimony from a detainee witness
regarding Accused Binalshib’s claim that his cell was shaking. See Appellate Exhibit 152. It
did, however, hear oral argument on Appellate Exhibit 442, Accused Hawsawi’s motion to
stream a video feed of commission proceedings to the detention camp in lieu of in-court
attendance and other relief. The Judge took this matter under advisement.
Protections Regarding the Holding of a Public Trial
On Wednesday, 17 May 2017, the Judge met with defense and prosecution lawyers for an
in camera hearing under M.C.R.E. 505(h) to make determinations regarding the use, relevance,
or admissibility of classified information that defense counsel sought to discuss during a future
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 session of the Commission. 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, 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 Rule for Military Commissions 806—the public trial rule—and
proceeded immediately to conduct that hearing. 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. The
procedures for protection of classified information are provided by statute in the Military
Commissions Act of 2009, and are closely aligned to those used in the United States District
Courts under the Classified Information Procedures Act.
The closed session held on 17 May 2017 lasted 28 minutes. Thus, of the approximately
10 hours of sessions over the past week, 4.2 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 10 closed sessions. Total closure comprising
these 10 closed sessions amounts to about 4 percent of the proceedings to date. This means that
even for a pre-trial process involving several challenges and other matters implicating classified
information, approximately 96 percent of that process has been open to the public. This
percentage will increase when the Commission releases transcripts from other closed sessions.
Moreover, the government is committed to ensuring that all of its evidence presented in the casein-chief at trial will be in open court.
Status of Discovery
As of the start of proceedings during the week of 17 March, the Judge had issued ten
orders specifically finding that the substitutions provided by the Government with regard to
information pertaining to the Central Intelligence Agency’s former Rendition, Detention, and
Interrogation program give the accused substantially the same ability to make a defense as if they
were given access to the original materials and directing that all discovered information must be
protected. Since 17 March, the Military Judge has issued an additional 3 orders—AE
AE308AAAA, AE308CCCC, and AE308BBBB—and the Government has produced the
applicable substitutions to the defense, which number in excess of 1500 pages from those most
recent three orders.

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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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