CHIEF PROSECUTOR MARK MARTINS
REMARKS AT GUANTANAMO BAY
29 JUNE 2017

Good afternoon. Today the Military Commission convened to try the charges against Abd
al Hadi al-Iraqi completed its twelfth pre-trial session to resolve legal and evidentiary issues.
Abd al Hadi is charged with committing serious violations of the law of war 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 killed or injured U.S.
and coalition service members and civilians, while also destroying 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.
At the start of today’s session, the Commission summarized yesterday’s in camera pretrial conference, which itself was held under Military Commissions Rule of Evidence (M.C.R.E.)
505(d). The Military Judge had held the conference with Government and Defense Counsel to
consider matters relating to classified information of which the Defense has generally indicated
an intent to use during a future session of the Commission.
Then, the Military Commission addressed six motions, hearing oral argument on four of
them:
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Appellate Exhibit 70RR is a motion by the Government for appropriate relief with
respect to Appellate Exhibit 70I. Appellate Exhibit 70I, in turn, is an order by the
Military Commission granting the in-court deposition of Ahmed Mohammad Ahmed
Haza Al Darbi, which deposition is scheduled to begin in August. The Government
maintains that while deposition testimony may at some later point be admitted into
evidence as part of a public session of the Commission, the deposition itself is not a
session of the Commission and thus is usually not public. The Defense opposed the
Government’s requested relief. The Judge took the matter under advisement.

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Appellate Exhibit 070QQ is a Government motion to require the Accused to be
present for that portion of Al Darbi’s deposition during which Al Darbi will identify
the Accused. The Government maintains that the Accused should be required to
attend that portion of the deposition because he does not have a right to be absent,
and the reason for the deposition is to ensure the public receives the full benefit of Al
Darbi’s testimony at trial. Accordingly, it would be unjust for the Commission to
permit the Defense to absent the Accused so as to avoid his identification by the
witness being deposed. The Defense argued that it may have valid tactical reasons

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 for the Accused’s absence at a deposition. The Judge took the matter under
advisement.
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Appellate Exhibit 83 is a Defense motion to permit the Accused to be present at all
closed sessions. The Defense argued that the Accused has a statutory right under the
Military Commissions Act to attend pretrial sessions, even if those sessions involve
classified information. The Government maintained that the Defense has
misconstrued the statutory provisions in question and that, while rare and always
requiring careful consideration of the law as well as the specific factual
circumstances, there are situations in which an accused may be excluded from pretrial matters involving issues that do not involve the determination of guilt or
innocence. The Judge took the matter under advisement.

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Appellate Exhibit 84 is a Defense motion for a privileged communication order. The
Government clarified that its original objection was to how the motion was
conferenced, not to the substance of the motion. The Defense then moved to amend
Appellate Exhibit 84, requesting an order identical to that for legal and privileged
communications for high-value detainees. The Military Judge instructed the Defense
to file an amended motion and for the Government to respond, stating if they have an
objection to the amended motion.

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Appellate Exhibit 86 is a defense motion to require the convening authority to accept
ex parte requests for expert assistance and other resources, meaning such requests
would bypass the procedures established by the Rules for Military Commission. The
Defense argued that filing requests for expert assistance under existing procedures
provides the Prosecution an opportunity to preview defense strategies. The
Prosecution maintains that the law properly limits ex parte requests to unusual
circumstances and that abuse of this limitation undermines the proper functioning of
the system by which the parties are intended to bring evidence and witnesses to trial.
The Judge took the matter under advisement.

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Appellate Exhibit 85 is a Defense motion to dismiss the charges on the ground that
Congress lacks authority under the Constitution to limit the jurisdiction of law-ofwar military commissions to non-citizens. Although originally on the Docketing
Order for this session, the parties agreed that further briefing was required to fully
flesh out all of the issues, and the Military Judge deferred argument until the August
pre-trial session.

Development in Other Military Commissions Cases
In another development, the United States Court of Military Commission Review today
(U.S.C.M.C.R.) reversed an April 7, 2017 decision by one of the other pending military
commissions. The Military Judge in 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 had dismissed two of the charges against the
accused in that case, namely Charge III (Attacking Civilian Objects) and Charge V (Destruction
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 of Property in Violation of the Law of War). The Military Judge had ruled that Section 950t of
the Military Commissions Act, which permits trial of offenses “at any time without limitation,”
was an Ex Post Facto law. The U.S.C.M.C.R. disagreed, stating that Congress in the 2006 and
2009 Military Commissions Act had codified existing law—by which time limits upon bringing
prosecutions for war crimes were not practicable—rather than created new law. The Court
remanded the matter to the Military Commission for proceedings consistent with its ruling.
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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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