CHIEF PROSECUTOR MARK MARTINS
REMARKS AT GUANTANAMO BAY
13 AUGUST 2017
Good evening. This week, the Military Commission convened to try the charges against
Abd al Hadi al-Iraqi will hold its thirteenth pre-trial session without panel members present. Abd
al Hadi al-Iraqi is charged with committing serious violations of the law of war by conspiring
with and leading others, 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 caused death and injury to U.S. and coalition service members and civilians, and damage
to or destruction of property.
The charges against Abd al Hadi al-Iraqi 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.
We are joined this week by the family members of two of the U.S. service members and
civilians who were killed in Afghanistan in 2003. Private Jerod Rhoton Dennis is remembered
here by his sister Jillian, his brother, Jordan, and his mother, Jane Nelson. Private Dennis, an
infantryman, died of wounds he sustained during a firefight in the vicinity of Shkin, Afghanistan
on April 25, 2003. He was awarded the Silver Star (Posthumously) for his actions while serving
in the quick reaction force that moved to reinforce American soldiers in contact with enemy
forces near the Shkin Firebase along the Afghanistan-Pakistan border. His actions under
overwhelming direct enemy fire were instrumental in the survival of one wounded American and
of his fellow soldiers.
We are also joined this week by Cheri Carlson, the widow of William “Chief” Carlson.
William Carlson was killed in the vicinity of Shkin, Afghanistan on October 25, 2003, when he
and his team were ambushed. As a 21-year Army Special Operations veteran, Mr. Carlson was no
stranger to the hardships of service to his country. At the time of his death, Mr. Carlson was
operating near the border of Afghanistan and Pakistan, a stronghold for Al Qaeda, the Taliban and
other anti-American fighters.
Developments in United States v. Abd al Hadi al-Iraqi
Although I will not comment on the specifics of any motions pending before a military
commission, I will provide background for this week’s pre-trial sessions. The Docketing Order
for this week’s pre-trial session is located at Appellate Exhibit 92, and is available on the Office
of Military Commission’s website. The primary effort this week will be the deposition of Mr.
Ahmed Mohammed Haza al Darbi (hereinafter “al Darbi”). In addition, according to the
Docketing Order, the Commission will hear argument and receive evidence, as required, with
respect to several motions.

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 Appellate Exhibits 70CCC and 70FFF are Defense motions to compel discovery of unredacted statements of al Darbi.
Appellate Exhibit 85 is a Defense motion to dismiss the charges. The Defense argues
that Congress lacks the authority under the Constitution to limit the jurisdiction of law of war
military commissions to non-citizens. The Government argues that the war powers invested by
the Constitution in Congress and the President are not limited solely to the Define and Punish
Clause of Article I, Section 8, of the United States Constitution. The Government also notes
that this same claim has been rejected in another military commission. See Appellate Exhibit
104C, United States v. Mohammad, et al., (Mil. Comm’n Dec. 3, 2012).
Appellate Exhibit 91 is a Defense motion to compel the Government to provide a
personal laptop computer for the accused. The Defense argues the accused has a right to a
personal laptop computer to assist with the preparation of his defense and review the
voluminous discovery in this case. The Government notes that the precedents relied upon by
the Defense apply to defendants who are proceeding without counsel (pro se), whereas the
accused here is represented by multiple fully cleared counsel. The Government further argues
that no court has held that a criminal accused has a right to a personal laptop computer.
Since our last pre-trial session the week of June 27, 2017, the Military Judge has issued
a number of rulings and orders on a variety of issues, including the following:
•

Appellate Exhibit 70 Series: The Military Judge granted the Defense’s request to
conduct its deposition cross-examination of al Darbi at a later date, granted a
Defense motion to divide cross-examination of al Darbi among different Defense
counsel, granted the Government’s motion to require the presence of the accused at
the deposition of al Darbi, and denied the Government’s and Mr. al Darbi’s separate
requests to close the deposition of al Darbi to the public. Accordingly, although the
deposition proceedings will not be transmitted by closed circuit television to public
sites, the public and news media present in Guantanamo will be admitted to the
gallery of the courtroom itself.

•

Appellate Exhibit 71E: The Military Judge denied a Defense motion to compel
production of the full, un-redacted version of the Senate Select Committee on
Intelligence’s Study on the Central Intelligence Agency’s (“CIA”) Rendition,
Detention and Interrogation (“RDI”) Program and other materials related to
investigation of the RDI Program.

•

Appellate Exhibit 79D: The Military Judge deferred ruling on a Defense motion to
compel discovery contained within the Defense’s Sixteenth Supplemental Request
for Discovery. The Military Judge ruled the Defense motion was not ripe for
resolution.

•

Appellate Exhibit 80E: The Military Judge deferred a Defense motion to compel
discovery of its Seventeenth Supplemental Request for Discovery. The Military
Judge deferred ruling on this motion pending the Government’s response to the
discovery request. The Military Judge ruled the Defense may file a supplement to
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 Appellate Exhibit 80 based on the Government’s response to the discovery request, if
necessary.
•

Appellate Exhibit 83C: The Military Judge granted in part and denied in part a
Defense motion to allow the accused to be present at closed sessions. The Military
Judge ruled that the accused may be excluded from hearings conducted under
Military Commission Rule of Evidence 505(h) to determine use, relevance, or
admissibility of classified information. The Military Judge ruled that the accused
may be excluded from Rule of Military Commission 803 sessions on a case-by-case
basis only, when such exclusion is consistent with federal case law and practice.

•

Appellate Exhibit 84A: The Military Judge issued an order regarding current
Commander of Joint Task Force Guantanamo policies related to the accused’s
communications with his attorneys. The Military Judge specified labels that must be
affixed to the accused’s communications with his attorneys to identify those
communications as privileged under the attorney-client privilege rule.

•

Appellate Exhibit 86C: The Military Judge granted a Defense motion to require the
Convening Authority to accept ex parte requests for expert assistance and other
resources. The Military Judge further ordered that the Defense may resubmit any
expert requests to the Convening Authority that were denied solely because they
were submitted ex parte. The Military Judge stated that the Convening Authority
will make a decision based on the merits of these requests. The Military Judge ruled
the Defense can file a motion to consider ex parte any expert requests that were
denied on the merits.

Substantial progress has thus been made in the seven weeks since the last session. We remain
mindful that our work is not done, however. In the meantime, the accused is being securely and
humanely held under the Geneva Conventions.
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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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