CHIEF PROSECUTOR MARK MARTINS
REMARKS AT GUANTANAMO BAY
30 JULY 2017
Good evening. The upcoming week’s sessions in the military commission of United
States v. Abd Al Rahim Hussayn Muhammad Al Nashiri will be the second 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 the Commission continues to make important progress towards those
goals. Because the primary effort this week is scheduled to be the deposition of Mr. Ahmed
Mohammed Haza al Darbi (hereinafter al Darbi), and because the Military Judge directed that
the deposition will be closed, we do not have any USS COLE family members with us this trip.
Nevertheless, we are honored to pursue justice on their behalf. Their continued interest and
usual presence at Commission proceedings remind us of the human toll of terrorism and other
violations of the laws of war. While this trial process has taken a long time, we want 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 the USS COLE, the attempted bombing of the USS THE
SULLIVANS, and the bombing of the 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 last sessions in March 2017, the Military Judge has issued a number of rulings
and orders on a variety of issues. The Military Commissions website includes a complete listing
of all defense and government motions, responses, and replies, as well as Commission orders and
rulings. The Military Judge’s orders and rulings since our last session have included the
following:
•

Appellate Exhibit 44E—the Commission denied a defense motion to
reconsider the Commission’s previous denial of Appellate Exhibit 44, the
Defense Motion to Compel the Government to Produce Un-Redacted
Versions of Classified Discovery. Although the defense cited a change in the
Freedom of Information Act, the Commission found the change inapplicable
to these proceedings and to the discovery sought.

•

Appellate Exhibit 49I—the Commission denied a 2013 defense motion to
dismiss the charge of terrorism. Citing a 2016 holding in the case of Al-

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 Bahlul v. United States, the Commission denied the defense motion and
declared moot a 2014 government request for an evidentiary hearing.
•

Appellate Exhibit 92KK—the Commission denied several related defense
motions in this single ruling. The Commission denied Appellate Exhibit
92S—Defense Motion to Abate Proceedings and for Appropriate Relief Due
to Destruction of Evidence Referenced in Appellate Exhibit 92; it denied
Appellate Exhibit 92BB—Defense Notice of Classified Filing, Defense
Motion for Preservation Order: Defense Motion to Abate Proceedings and for
Appropriate Relief Due to Destruction of Evidence Referenced in Appellate
Exhibit 92; and it denied a defense motion to compel discovery related to
Appellate Exhibit 92AA—Government Supplement to Appellate Exhibit
092U, Government Response to Defense Motion to Abate Proceedings and for
Appropriate Relief Due to Destruction of Evidence Referenced in Appellate
Exhibit 92.

•

Appellate Exhibits 120RRRRRR, 120SSSSSS, 120UUUUUU, 120VVVVVV
(Amend), 120WWWWWW, 120XXXXXX, 120YYYYYY, 120ZZZZZZ,
120AAAAAAA, and 120BBBBBBB—pursuant to the Military Commissions
Act of 2009 (M.C.A.), 10 U.S.C. §§ 949p-3 and 949p-4, Rule for Military
Commission (R.M.C.) 701(f), and Military Commission Rule of Evidence
(M.C.R.E.) 505(e) and (f), the Commission granted the Government’s ex
parte, in camera, under seal requests for substitutions and other relief from
ordered discovery of classified information so as to comply with Appellate
Exhibit 120AA and other general discovery obligations.

•

Appellate Exhibit 177B—the Commission denied the Defense Motion For
Appropriate Relief: To Prohibit Capital Punishment for Intentional Murder or
Conduct Evincing a Wanton Disregard for Human Life as Required By Ex
Post Facto Clause, finding that death was an authorized punishment for war
crimes and grave breaches of the Geneva Conventions and that the charged
offenses would have qualified as such offenses at the time of the conduct
alleged.

•

Appellate Exhibit 179B—the Commission denied the Defense Motion for
Appropriate Relief: To Apply The Capital Sentencing Scheme Set Forth In
R.C.M. 1004 and the 2002 M.C.M. as Required By The Ex Post Facto Clause,
finding that the capital sentencing scheme in the M.C.A. and R.M.C.s does not
constitute an ex post facto law.

•

Appellate Exhibit 203Q—the Commission issued a scheduling order for 2018.

•

In Appellate Exhibits 249C, 250C, 254C, 255C, and 258C, the Commission
addressed a series of defense motions to strike capital aggravating factors
(aggravators) for which the government had provided notice as required under
R.M.C. 1004(b)(1), but which the government did not allege specifically in
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 the several relevant specifications. In 2014, the Commission dismissed these
charges and specifications on other grounds and declared moot the defense
motions to strike because the affected charges and specifications had been
dismissed. However, those charges and specifications were reinstated by the
United States Court of Military Commission Review (U.S.C.M.C.R.) in 2016.
Pursuant to that U.S.C.M.C.R. ruling, the Commission rescinded its earlier
rulings that the defense motions to strike were moot. The Commission then
denied the defense motions because even if the Commission assumed for the
sake of argument that the defense was correct and the government should have
alleged the aggravating factors in the affected specifications, the Commission
found that the notice provided by the government under R.M.C. 1004(b)(1)
was sufficient to prevent the accused being misled or prejudiced in any way in
its preparation for trial.
•

Appellate Exhibits 251D, 252D, and 253D—the Commission addressed
several defense motions to strike aggravators in Charge IV Specification 2,
Charge VII, and Charge IX, respectively, based on duplicity with another
aggravator. These were the same charges that had been reinstated by the
U.S.C.M.C.R., and these motions had originally been deemed moot by the
Commission. After rescinding the earlier findings that the defense motions
were moot, the Commission denied the defense motions, determining it would
provide an appropriate instruction to the panel during the sentencing phase
and may consider other remedies at that time.

•

Appellate Exhibit 256L—the Commission denied Appellate Exhibit 256I, the
Defense Motion to Strike Aggravator #5 As Overbroad and/or Motion in
Limine to Limit Scope of Aggravator #5 to the Accused’s Specific Intent to
Intimidate or Terrorize the Civilian Population of the United States, finding
that Aggravator #5 was neither overbroad nor vague.

•

Appellate Exhibits 296D, 297D, 299D—on its own motion for
reconsideration, the Commission ordered re-briefing of its decisions on three
defense motions to dismiss various charges on claims that the statute of
limitations had run. Specifically, the Commission ordered re-briefing in
Appellate Exhibit 296D, Defense Motion to Dismiss Charge III, Specification
1; Appellate Exhibit 297D, Defense Motion to Dismiss Charge III,
Specification 2, and Appellate Exhibit 299D, Defense Motion to Dismiss
Charge VI. After re-briefing and upon review of a recent applicable
U.S.C.M.C.R. opinion in the case of United States v. Khalid Shaikh
Mohammad et al., the Commission again denied the three defense motions to
dismiss, ruling that the UCMJ Article 43 statute of limitations did not apply.

•

Appellate Exhibits 298D, 300D, and 301D—the Commission dealt with
several additional defense motions to dismiss charges on claims that the
statute of limitations had run. In 2014, the Commission had dismissed the
affected charges and specifications on other grounds, assuming these motions
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 to have been rendered moot. However, the charges and specifications that had
been the focus of these motions were reinstated by the U.S.C.M.C.R. in 2016.
Pursuant to that U.S.C.M.C.R. ruling, the Commission rescinded its earlier
rulings that the defense motions to dismiss were moot and addressed the
motions on the merits. Specifically, the Commission denied Appellate Exhibit
298, the Defense Motion to Dismiss Charge IX, ruling that Article 43 of the
UCMJ does not apply to these military commissions and because Charge IX
(Hazarding a Vessel), as a capital charge, would not have been subject to the
UCMJ Article 43 five-year statute of limitations. Likewise, in Appellate
Exhibit 300D, the Commission denied the Defense Motion to Dismiss Charge
VII because, like Charge IX, Charge VII (Attacking Civilians) is also a capital
charge. In Appellate Exhibit 301D, the Commission denied the Defense
Motion to Dismiss Charge VIII. As in its rulings in Appellate Exhibits 296D,
297D, and 299D, the Commission determined Charge VIII (Attacking
Civilian Objects) was not subject to the UCMJ Article 43 statute of
limitations.
•

Appellate Exhibit 342C—the Commission denied Appellate Exhibit 342, the
Defense Motion to Compel the Convening Authority to Grant Testimonial
Immunity to Mr. Abdul Al Salam Al-Hilah or to Abate the Proceedings. The
Commission found the defense failed to meet its burden to show the threeprong test under R.M.C. 704(e) was satisfied because there was no evidence
that the Government engaged in discriminatory use of immunity to gain a
tactical advantage.

•

Appellate Exhibit 355—the Commission issued an interim order on the
Defense Motion to Suppress Custodial Statements Made by Mr. Ahmed
Mohammed Ahmed Haze (al-Darbi) to Federal Law Enforcement Agents
Between 24 August—3 September 2002 And Derivative Evidence, as
Required By 10 U.S.C. § 948r and The Fifth Amendment. The Commission
ordered the government to provide notice of which of al Darbi’s statements,
including al Darbi’s deposition, it intends to admit at trial, and what evidence,
if any, it intends to offer to establish the admissibility of such statements
pursuant to M.C.R.E. 304(a)(3).

•

Appellate Exhibit 356B—the Commission amended the scheduling order for
the remainder of 2017.

•

Appellate Exhibit 358C—the Military Judge rescinded the rulings in
Appellate Exhibit 358B and Appellate Exhibit 358 B (Corrected Copy) and
replaced them with Appellate Exhibit 358D, which ruled moot the Defense
Motion To Compel Production Of Accused’s Medical And Psychiatric or
Psychological Records From 1 January 2016 Through 20 August 2016 based
on the Government’s reported compliance with its discovery obligations and
the Defense’s acknowledgment they received the records.

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 •

Appellate Exhibit 359X—the Commission denied the Defense Motion
Requesting the Accused Be Housed at the ELC During Hearings because the
defense failed to meet its burden. The Commission found that there was a
valid, rational connection between the Joint Detention Group policy
prohibiting housing the accused at the Expeditionary Legal Complex (ELC);
there are alternative means available to the accused which will preserve his
right to be present and meaningfully participate in his defense;
accommodating the accused’s request would adversely impact the guard force
and constitute a strain on government resources; and the Defense failed to
show a ready alternative that accommodates the accused’s rights at de
minimis cost to stated valid penological interests.

•

Appellate Exhibit 369M—the Military Judge granted the prosecution motion
to depose a witness (al Darbi); stated that the judge would serve as the
deposition officer; directed that the deposition will be audio- and videorecorded as well as transcribed; directed discovery and related motions
deadlines; and ordered the deposition to occur during this coming week (31
July—4 August).

•

Appellate Exhibit 369N—the Commission ordered the government to submit
a filing identifying the location of all remaining al Darbi-related discovery
materials contained in pending Appellate Exhibit 120-related summary/
substitution requests in order to assist the Commission in its review of the
materials previously referenced in Prosecution oral argument.

•

Appellate Exhibit 369FF and 369JJ—the Commission ordered the deposition
of al Darbi be closed, ruled that the accused would attend the direct
examination as the Government did not intend to use any classified
information in its direct examination of al Darbi, and set the schedule for
direct- and cross-examination at the deposition.

•

Appellate Exhibit 369OO—the Commission denied Appellate Exhibit 369HH,
the Defense Motion to Advise the Accused of Potential Government
Intrusions into Attorney-Client Communications, stating the Commission did
not have authority to grant the defense request to disclose classified
information.

•

Appellate Exhibit 374A—pursuant to the M.C.A., 10 U.S.C. §§ 949p-3 and
949p-4, R.M.C. 701(f), and M.C.R.E. 505(e) and (f), the Commission granted
Appellate Exhibit 374, the Government’s Ex Parte, In Camera Under Seal
Motion for Protective Order Pursuant to the Military Commissions Act of
2009, 10 U.S.C. § 949p-4, And Military Commission Rule of Evidence 505.

•

Appellate Exhibit 374C—pursuant to the M.C.A., 10 U.S.C. §§ 949p-3 and
949p-4, R.M.C. 701(f), and M.C.R.E. 505(e) and (f), the Commission granted
Appellate Exhibit 374B and Appellate Exhibit 374B (AMEND), the
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 Government’s Ex Parte, In Camera Under Seal Motion for Protective Order
Pursuant to the Military Commissions Act of 2009, 10 U.S.C. § 949p-4, and
Military Commission Rule of Evidence 505.
•

Appellate Exhibits 376 and 377—Docketing Orders—the Commission issued
these docketing orders for the July/August 2017 and September 2017
hearings, respectively.

•

Appellate Exhibit 379—the Commission issued an order abating the
proceedings, basing the order on how a new JTF-Guantanamo policy was
being implemented. Specifically, the Military Judge determined that a policy
establishing a structured approval process for use of operational assets would
result in unacceptable comingling between the Military Judge’s contingent
and counsel for the parties, victim family members, witnesses, nongovernmental organizations, and media. The Military Judge subsequently
rescinded this order when separate transportation was provided for the
Military Judge from the leeward airfield to the windward side of the
installation.

Methodical Movement, Unfinished Work
Although several months have passed since the last sessions in this case, significant
forward progress has been made that moves this case closer to trial on the merits. To date, the
government has provided more than 270,217 pages of discovery to the defense. Also, as of the
30th of September of last year, the government had furnished many thousands of proposed pages
of information 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.
Yet despite this progress, we remain mindful that our work is not done. In the meantime,
al Nashiri is being securely and humanely held under the Geneva Conventions.
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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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