Transcript: Press conference Q&A with Gen. Mark Martins on 9/11 co-conspirators’ arraignment
Transcript of press conference Q&A with Brig. Gen. Mark Martins, Chief Prosecutor of the Military Commissions at Guantanamo Bay, on the arraignments of Khalid Sheikh Mohammed and 9/11 co-conspirators on May 5, 2012:
(*NOTE: Press conference was held on Sunday, May 6, 2012)
Question: “Can you give us your thoughts, having spent so many hours yesterday watching the conduct of the defendants, their behavior, their mannerisms, how they interacted with each other – the singing the praying. All the various things that we sat through and watched.”
Brig. Gen. Mark Martins: “You know, I preferred – you know, you saw them too, and that’s the purpose of being able to see them… I’d rather prefer to have you do that. That’s the whole purpose of allowing people to see it rather than comment on it.
“I will say a lot of the discussions about transparency and whether we’re really committed to it. One short moment where we a brief blockage of the transmission – I don’t know what you saw on your end – as I was in there looking back on that all that will be on the record. It turns out it actually came out to a line relating to some of the issues treatment – the standard of which are pointed out on the government brief on the presumptive classification. But all that will be out there and you’ll be able to see, not just the many hours that you saw but even that one minute you’ll be able to kind of recover that on the verbatim transcript that should be out today.
“So my answer to you is that’s really you – you all saw them. You saw their reactions.
“I saw a process that was moving forward methodically, that resulted in an arraignment at the end of the day and the reading of the charges and scheduling of our next hearing for the trials and motions.”
Question: “You’ve stated publicly many times that no evidence will be produced in this hearing that’s been tainted by torture allegations. David Nevin…”
Brig. Gen. Mark Martins: “I heard it…”
Question: “…in response to my question said you can’t untaint what you’ve tainted. How do you get around that?”
Brig. Gen. Mark Martins: “No, no, and by the way you all are asking great questions. And I welcome this and I ask you to continue to be interested over the months – continue to ask the tough questions.
“Charlie was asking some great questions the other night about the real nuances of the classification. I will be the first to admit this is hard stuff, and this is why we have to tee it up into our judicial system where you have two parties showing both sides and then you let an impartial arbiter go through it all – hear all the facts and arguments. This stuff is not the kind of thing that you battle out in headlines and really get to a resolution.
“On this question, Michael, the – you know, the defense argument is, and I can certainly understand it and discern it, it is, okay, this combination of the classification problem and this problem with torture evidence or tainted evidence. And I can’t really get at it – test it, right? Because I can’t really talk to my client.
“Let me just give – I’m going to give you a couple of factoids that put the empirical counter into your head as responsible reporters. And then I’d just ask you to look at some of the briefs because that’s where the law’s going to be cited and the facts are going to be fully laid out.
“The presumptive classification thing where they say we can’t talk to our clients, it’s just – it’s – we strongly disagree. They can talk to their clients about anything. What they can’t do is take a document that may have classified information related to sources and methods and – unless it is cleared – as disclosable to the client – they can’t show them that document.
“Now that, you know, I suppose that something that David Nevin said kind of resembles that but I think it’s ultimately a bit misleading. They can talk to their client about anything. When they use information and spread it around and disclose it, we’re gonna protect it if it has sources and methods. We’re not going to protect things just because they’re embarrassing or they are showing something illegal.
“And I also just ask you to think conceptually about the question. It is not the case that some instance of mistreatment or torture pollutes everything in the case. Courts gave rejected that again and again in all countries. The remedy for torture or cruel treatment or things that will make you ashamed that they were done, that were deplorable and disappointing – the remedy is not to just dismiss all charges. It’s harder than that. You’ve got to look to see if there’s independent evidence, and you do have to ask the question about taint. But it doesn’t pass the common sense test that everything – everything – is polluted and tainted by an instance of torture. That means everybody goes free? Everybody is free of accountability because someone else who may have been acting independently or out of control did something wrong? That’s not justice. It’s harder than that. And we have to submit that to our courts methodically and we have to make sure that if their questions are we can’t cross examine, we can’t possibly get to the truth because of the classification, we’ve got to tee all of that up too. Because in that area, you’ve got the difficult question of where there really are sources and methods to protect but we want maximum transparency. We really want to be able to have that out there. So that’s a great question.”
Question: “One… [inaudible] he raised 2 specific things. One that he couldn’t discuss the historical perspective of his clients – the historical roots of jihad – and his treatment at the hands of the CIA.
“And secondly, it seems to me that part of their argument is not that you can’t put a person on trial because they were tortured but that you can’t kill them in an execution after they were tortured, that you use the moral authority or whatever to do that. And I’m wondering if you could address both of those.”
Brig. Gen. Mark Martins: “On the jihad and the CIA, again, it is I think a strange parsing of the issue to say we can’t talk to our clients about this.
“Again, if they have some knowledge of a source and a method, they can’t give something to someone who is not cleared. And these detainees, although their need to confront the evidence against them is very, very strong – it’s one of the important values of the fairness of the justice system. Here you also then have real sources and methods to protect. And I think, you know, I know in our conversations you’ve appreciated there really can be still sources and methods overseas that could be compromised by disclosing.”
Brig. Gen. Mark Martins: “No, no. Well, right. I’d just say that’s not true. They can talk historical roots of jihad. What they can’t do is bring in a document that is classified, that has maybe a discussion on the sources of the roots of jihad by somebody who’s a source overseas who’s going to tell us where the next attacks are coming from. And there have to be ways of getting the sources of jihad information to the client while trying to protect the source.
“Now, when you get up against those places where they really and inevitably conflict, CIPA [Classified Information Procedures Act] is designed to really weed off the ones that you can figure out how to accommodate and reconcile. But if you can’t, those go up to a judge. This happened in the Moussaoui case because Moussaoui said, ‘I’ve got to get to that high-value detainee witness.’ And the judge agreed. You know, Brinkema said, ‘Hey, you’ve got to produce that guy, government, and I realize you’ve got secrets and stuff but you’ve got to pick your poison because it can get that bad.’
“And CIPA is designed – that’s a type of graymail. Graymail implies that perhaps it’s being done disingenuously. That’s a case where you’ve got a confrontation issue squarely presented to the court, and the court had to try to resolve it. And it went up through the process and it was judges – Article III judges – kind of saying, ‘Are we denying this individual the right to confront him?’
“So, I mean, great question and we ought to talk about it more. This is going to play itself out in the motions. And I was pleased to see defense counsels say, ‘Hey, we’re going to get the litigation on the motions on a lot of these issues.’ And that’s really where you are going to have to look – is to see where this is laid out. ‘Cause that’s being squarely teed up.”
Question: “You were just mentioning the international cooperation in evidence gathering. I’m wondering are you aware of if there’s also evidence which came from German authorities for this case and could you…?”
Brig. Gen. Mark Martins: “I will not say any of that but there has been international cooperation in the case.”
Question: “Okay, but you will not say anything about specific nations?”
Brig. Gen. Mark Martins: “No, I won’t. Thank you.”
Question: “One quick comment. I’d like you to respond to 2 things about what happened yesterday? The comment was when we – at the press conference on Friday you were imploring us before we wrote about the defense allegations about their restrictions on their communications to look at your brief to explain it all. I just – you may not be aware that your brief was not and I believe still not available.”
Brig. Gen. Mark Martins: “No, it is.”
Question: “It’s finally available?”
Brig. Gen. Mark Martins: “It was up Friday night. I checked myself. I went to the web and checked and it was up. This was 8 – it should be – what was it 8 Charlie or whatever our response was in the 8 series. So let’s get together after this because I specifically went to make sure it was up.
“It was cleared early Friday and then they posted that day. We had filed it by deadline on Thursday and they overnight – they were able to clear it so…”
Question: “Okay good. The 2 responses. One was about the translation issue. The other one was about the dress on people on your team. You did not respond yesterday in the courtroom when Cheryl Bormann urged your team to – the women on your team to dress more modestly. We clarified with her today that – she didn’t name a name but she said there was a particular paralegal both yesterday was wearing short skirt and was a distraction for her client and therefore could not focus on the proceeding which might lead to his death. Could you respond to that?”
Brig. Gen. Mark Martins: “Well, I didn’t think it merited or deserved a response yesterday. But I don’t think it deserves a response today. The women on the prosecution team are dressed in an appropriate and professional manner. Anything else?”
Question: “Yes, the other – on translators…”
Brig. Gen. Mark Martins: “Oh, I’m sorry. On translators.”
Question: “So you saw the conference earlier today. He said the person he was offered couldn’t type in Arabic and therefore couldn’t…”
Brig. Gen. Mark Martins: “I did… Well, okay.
“You know, again, this is going to be one of those ones where they – all these kind of things come up first to the Convening Authority, who is trying to provide resources under standards that are laid out in the Manual for Military Commissions in which you have to have a need – a real need – and it has to be appropriate and show the relevance of what it is. Surely translators is very relevant to this. Lots of documents. He did – I was pleased to see that he was acknowledging that people weren’t waking up in the morning trying to keep him from getting a translator. Hawsawi had had one. He acknowledged that all the other 4 accused have dedicated translators. I mean, every effort is being made to do this.
“And oh, by the way, this is the kind of thing that comes up in federal courts all the time. You’ve got language issues. Lots of materials.
“But the number I had heard yesterday was over half a dozen had been offered that were cleared. You know, you have to get them cleared and you have to get the right ability to get the information. And they had turn them down. You know, he has to – to some extent – get approval from and cooperation with the client. There’s things going on for him that, you know, are difficult and I acknowledge. So when he rejects one, I’m not saying that’s necessarily unreasonable. What’s got to happen is – this issue, because it is contested – and all I was saying yesterday, right, the judge said, ‘Hey, can you resolve the translator issue in the next 5 minutes?’ And I said, you know, I was kind of saying this is something that’s been going on a couple of months. I don’t – I’m not confident we’re going to be able to get him a translator he wants in 5 minutes. Fortunately, he was able to – as he put on the record at the end – he was able to use one of the other translators and through the obvious – a lot of cross-talking communications between he and his client through the proceeding.
“So we’re going to make every effort to do it. He is teeing it up in litigation. Another thing that I’m sorry I have to direct you to the briefs. But we’re going to get all the facts on who provided whom and when and all the different security clearances. But every effort is being made to try to get them important language services.
“Oh hey, let me just respond to something implicitly in the – if some of you can take this back to Carol. Where she’s saying – she’s asking her favorite question: How long would this have taken in federal court? You know, then you get the 10 minute answer. The – and I was glad to see James Harrington say – he did not do the Harrington Hustle on this. He actually said well it could take longer if they did a longer [inaudible]. This is an important area where federal practice does differ from military commissions and courts martial.
“The voir dire of the military judge is something that is important in the military system for all those reasons – you know, judge is not an Article III life-tenured judge who’s sitting in a court of record day after day after day where you can come to know his background and everything. These are judges who are assigned around the world. I maintain they are impressively independent. But we put on the record all of that. We think it’s an important protection of the system because you have these allegations historically of judges, you know, being handpicked. We’ve kind of heard these theories coming out of the questioning. Well, let’s get to that. Okay, did you know that Commander? Why are you put on this case? And you get all of that on the record. You get cross examined. And that was like well over 3 hours of stuff, okay? It made it a longer day. It’s more pages on the record.
“But I submit to you that provides a level of transparency. They get to challenge him. They deferred – any of them deferred challenge. And they continue to renew that. But that’s an important aspect, and that’s one of those areas where it differs. All that will be on appeal to an Article III judge who can later say, ‘Was that judge independent?’ That’s one of the huge protections in this whole system because all these issues about umpiring, resources, umpiring access to classified information and how it’s balanced against the accused’s confrontation. All of those things go to a judge. And that judge, if we’re not confident he’s impartial, you have concerns about the system. So that was my answer to the – that’s why arraignments in military court can take so much longer than federal court and I think it’s a principled reason.
“Again, I’ll stay as long as…I know you may all have to go but I’ll stay as long as necessary because my flight doesn’t leave for a while.”
Question: “Two questions. First, this is asked of the defense as well. How long do you expect this process to last when you think of [incomprehensible]? Secondly, you’ve asked for the death penalty – it’s a capital case. If convicted and found guilty, will there be an execution through lethal injection or whatever at Guantanamo Bay and are there plans in process to build an execution cell at the facility?”
Brig. Gen. Mark Martins: “Okay, 2 out of the 3 pieces of questions I can answer. I won’t answer the third because that assumes something.
“Okay, how long, all right? Zacarias Moussaoui took over close to 4 years. Okay? These things can take a while. We are now on a methodical approach to resolution under law and you’ll be able to follow everything without a – you hang in there. It’s going to take months. But 4 years in Zacarias Moussaoui. I’m getting ready for hundreds of motions because we want them to shoot at everything they can shoot at. And I want to respond to it and I want it to be teed up and methodically resolved and preserved for appeal so that everybody looking at this knows that this is in the highest tradition of our system. That’s very important.
“And as much as I feel for everyone who’s frustrated by the denial or delay of this in a court of law, this is the way to do this. We’ve got to do this methodically and patiently. Justice in every society is patient. Methodical, patient, determined but patient. So it’s going to take time and someone eloquent said, ‘This is hard on everybody. It’s going to be hard on everybody. It’s going to be hard on people watching.’
“Okay, on death penalty. My esteemed adversary counsel, you know, say the government’s trying to kill them. What we’re trying to do is put the question of the fate of these individuals – their guilt or innocence, which has to be proven beyond a reasonable doubt against every element of all the offenses you heard read yesterday – and the appropriate sentence to a panel of 12 jury men and women and to select the right outcome and finding under law the appropriate sentence under law. That’s what we want. That’s justice, I believe. And then it can also be appealed if there’s an allegation of error. That’s what we’re trying to do.
“This is a military commission empowered to adjudge the death penalty, which is a statutory authorized punishment for these offenses. And that’s what this – and I have strong belief that the officers who are selected for this jury, who aren’t just handpicked – you know, all these sort of labeled terms that are used. They’re selected from a pool of 230,000 officers worldwide on the DMZ and Paktika, Afghanistan, serving their country in post-camps and stations around the United States. They’re from all 50 states. They’re every race, ethnicity, religious creed. And they are then going to be – they have to be picked for, among other things, their judicial temperament. And then they’re subject to causal challenge and voir dire – the kind of thing that they did with the judge – and then peremptory challenge. So it’s a real jury, and that’s how we do things in the Anglo-American system. Not for everybody but in the Anglo-American system. That’s what we do. We entrust these very difficult decisions to those jurymen who come at this thing without having any connection to the offense, without having any connection to the accused. They’ll be voir dire about what they know about 9/11 and all that, like the judge was. But you have to be convinced when you hear that that these people are impartial. I happen to believe and know they can be impartial. And that’s what’s going to happen, so we’re not – this death penalty stuff is premature. What we’re trying to do is put this thing through a process appropriately.”
Question: [DOD personnel] “Question from Jess Bravin via email. The defense disparaged your statement as a PR campaign. Mr. Harrington called it the Martin Shuffle for suggesting that the commissions are substantially equivalent to Article III courts yet being evasive over whether they are bound by the U.S. Constitution. Beyond the habeas privilege the Supreme Court identified in Boumedienne, do you believe the defendants have any constitutional as opposed to statutory rights? And if so, what are they? What principle do you use in deciding which rights the defendants possess?”
Brig. Gen. Mark Martins: “Let me just quickly hit a couple of things that sort of are on the issue of PR and not being sincere and all that.
“On the presumptive classification, Mr. Connell implied somehow that I was misrepresenting federal court use of the presumptive classification, that maybe that again was just PR or something. I did not say that it as not in the protective order. I said presumptive classification which is how you manage classified information – it’s not a new category of information classified as confidential, secret, top secret based on level of gravity of damage to national security if it is released. It’s a matter of management, and I stand by – because I’ve got federal prosecutors who are involved in that in all my team, directly involved, they use presumptive classification management. And again, federal judge in the Al Odah habeas case is the one who developed that technique of management. It doesn’t create a new classification. It’s managing it so that people who may not know something about the classification…
“Okay, on the constitutional issue, the shuffle issue – actually, if you saw me try to dance you’d probably wouldn’t use that kind of metaphor with me. I do know how to do the airborne shuffle [inaudible]. But constitutional, what I’ve been saying and what the position of our government is essentially in the Johnson, the case, just this last week in the Hamdan appeal, the federal Court of Appeals for the D.C. Circuit confirmed is still very much the law in this matter. Our law does not abolish distinctions as the Supreme Court said between non-citizens and citizens or between enemy or friend. It doesn’t.
“Every country in the world – Germany – has a distinction between aliens and citizens. Those are not a denial of equal protection; those are not a denial of fairness. And there are constitutional rights that none of our courts have recognized in non-citizens. That’s just the way it is. I’m stating what the law is – what our Supreme Court has said. That’s not shuffle. I’m sorry that it feels that way. I would refer you to the litigation in Nashiri case over some of these very issues.
“Here’s what the courts have said and I think I heard the judge say this yesterday: the non-suspension clause of the writ of habeas corpus does apply. That’s Boumedienne v. Bush. That’s a Supreme Court case that said our federal courts are open to detainees who want to challenge the lawfulness of their detentions. The historic purpose of the great writ of habeas corpus. Most people looking at the issue – and the court’s opinion on the issue see things like the ex post facto clause, which is a limitation on the power of Congress in this case to make a law – to make something criminal after an act happened. Something that was innocent when done then criminalized. Because that’s a limitation on the power of Congress that’s something that benefits citizens, non-citizens alike. A lot of the Bill of Rights are as a constitutional matter – you can invoke the constitution to say, ‘I didn’t get a jury trial.’ And this is where this kind of things come up. This is what defense counsel are getting at – I should be getting a jury trial of people drawn from the Eastern District of Virginia. And that’s just not what courts have historically said because historically we have tried violators of the law of war in military commission.
“So let me just get back to that. What we have – what we’ve not been doing – and maybe why Jim likes to say I’m shuffling – is I’m not relying on that because we don’t have to. We’re giving them every fairness as a matter of statute and as a matter of fairness. We’re giving them all these protections so we don’t have to argue arcane discussions of whether the Constitution applies because we’re already giving them every protection demanded by our values and by norms of international law and by our international obligations under Common Article III of the Geneva Conventions. So I hope that answers Jess’s question.”
Question: “I have a question regarding the summaries that are going to be used and that are based on classified information and then the basic stories of the classified information. There’s some concern on the part of the defense that tainted evidence, in other words, evidence that perhaps was derived by torture will seep or find their way into these summaries because some of them might not know where the basis of that information came from. Can you respond…?”
Brig. Gen. Mark Martins: “You’re becoming – you’re going to become over time because I can tell you’re onto this issue and you’re intellectually honest – you’re going to become an expert on CIPA. I mean, this is what CIPA litigation is about. And point number one, this is not military commission’s special problem. This is the heart of all the litigation over CIPA in our federal courts. We are using the same classified information procedures.
“Now, some of the applications of our protection of classified information while providing a fair trial here in Guantanamo are a little different than in federal court.
“So in Judge [Lewis A.] Kaplan in Southern District of New York had to close trial for 2 full days in the Ghailani case.
“Here we may be able to do something much more targeted because we have a facility that allows for the 40-second delay and some other things. Facilities really can change in clearances that you’re able to get done for people. The facilities in how you can protect the information may give you different modalities. Don’t confuse that with the law and the protections.
“Now, one of the ways we protect classified information while giving the accused the ability to confront the evidence against him or her is through having the judge get the original and then look at a proposed summary. The prosecution’s the one that’s got to produce all of the discovery. That’s all our obligation because the government is not going to produce a lot of immaterial evidence. All right? I’m not going to produce your health record for a defendant because he’s on some theory that it’s relevant for him. I have an obligation both to protect other sensitive, private and other information and give the defense what’s material to the defense. So but – so anyways, I’ll produce a summary – a proposed summary – we’ll give it to the judge along with the original. Okay? So the judge has the original with all of the other data which includes sources and methods that are supposed to be protected and our proposed summary. And a judge will look at it and will say, ‘Ah, you know, you’re leaving something out that’s really material to the defense here. So I reject that summary but I would accept this.’ And that process has to go on before the defense gets classified summary.
“There’s all kinds of litigation being over what’s enough in the summary because all that gets preserved on the record. You see, on the record, you get the classified and the unclassified and that’s got to go up to a higher appellate court but…”
Question: “So you’re not going to use any evidence that’s derived from torture. Does that mean using your right hand and your left hand as you did? That all the information on the summary in which you will be based that evidence that was derived from torture will never be on your right hand and make its way to the left?”
Brig. Gen. Mark Martins: “Well, I am stating we will not use evidence obtained as a result of torture. But let me explain how that – how that you – I’m not saying that you have to trust me, okay? I mean, the discipline in the system is the judge has to agree there’s a – that this fairly summarizes this and doesn’t leave out something. And he’s also obligated…to try not to introduce evidence resulted in torture. And then every piece of evidence – a defense counsel can say, ‘I want to suppress that or not admit it and we’re going to litigate it.’ And this…”
Question: [inaudible] “…if they only see the summary? I’m not trying to be combative. I’m just trying to…”
Brig. Gen. Mark Martins: “Well, because – see I guess I just – there are types of evidence where you don’t need to have a bunch of documents outside to see in it that it’s got indications of reliability that show its voluntariness or that it was coming from a different source and could show the guilt of somebody. There are. I mean, if you reflect on it, there are independent ways to know something about an action without going to the accused and asking them about it. That’s the basic point. It’s called an inevitable discovery or an independent discovery is the doctrine in our suppression litigation. And again, just very good to underline the point. This came up in Ghailani. It comes up all the time in federal courts and we’re going to do our best with difficult issues while remaining true to the idea that we’re not in principle we’re not going to introduce tainted evidence. Okay? So. But stay tuned and I’m glad you’re interested in that.”
Question: “I have a question about sources and methods. I mean, am I to understand that all or many interrogation techniques are protected under that?”
Brig. Gen. Mark Martins: “No, that’s not right. And I would refer you…if you go to page 5 of appellate exhibit 9, this is the government’s response on the presumptive classification motion and it will lay out what’s being protected. These are not these, you know, undecipherable, problematic rules that the defense will have you make. They really are – you can understand what you can and can’t do. Read it and you’re going to be seeing it in our litigation.
“I’ll give you the basics: Locations of the detention facilities; identity of cooperating foreign governments; identity of personnel involved in the capture, detention, and transfer, and interrogation of detainees; interrogation techniques as applied to specific detainees unless otherwise declassified – and a lot of that was declassified in the CIA IG report; and conditions of confinement. And if those would cause grave damage to the national security and that’s based on an objective look and the rationale can’t be that it’s embarrassing and, you know, a lot of embarrassing – I think Peter might have asked this – a lot of embarrassing information about unlawfulness has come out already. So I mean that’s not the reason for not disclosing it. But if in those 5 categories, there is material that relates to a source and method that could still protect people from terrorist attacks or that shows an avenue to find out about a method of terrorists’ coordination or planning going forward, then that’s going to be classified and we’re going to work to protect it.”
Question: “Could Khalid Sheikh Mohammed be put on the stand and be asked to run through an interrogation without mentioning where it was or necessarily even know. Why, when he come up to the line talking about torture, could you not just have him walk through an interrogation?”
Brig. Gen. Mark Martins: “Well, that could become – could very well become – I’m not going to talk specifically about any detainee or any accused, because what I’m not going to do is invade the province of a judge on a case going forward. But just talking about the rules, I think we can have good conversation here is – and this I can talk about past cases. Because in Ghailani, again, they had to go to a closed-door session because the discussion was going to be so related to things. Here what we’re going to do is we’re going to see if we can bifurcate the proceedings. This is all Press Enterprises standards. First, you’ve got to express an overriding interest. It’s got to be a no-kidding overriding public interest in not disclosing it, and that’s got to be a high bar. Right? As the Supreme Court said in the Richmond newspaper’s case, the people of an open society do not demand an infallibility of their institutions but it’s difficult for them to accept what they are prohibited from observing. So I mean, you’ve really got to show a high – an overriding interest. But if you can show it, then you’ve got to be as narrowly tailored as you can be. So we’re going to bifurcate the proceeding so that you only have the classified stuff discussed in a localized fashion and that’s through telling counsel what kind of questions they can ask and so forth. Then you release a transcript as quickly as possible afterward with just targeted redactions so people can understand as much as possible of what was done. And then we’re going to use wherever we can on the non-classified part of the bifurcated proceeding – the 40-second apparatus that we have here that enables us, I think, to get a lot of transparency even while protecting our classified information.
“So you know all I can say is the reasons we would be going to a closed session on discussion of the detainee’s treatment would not be because it’s embarrassing. It would not be because it might show a violation of law. Now, it may deal with places where law were violated. That cannot be the reason you close it. The reason that you close it has to be because we’re protecting people going forward.
“So great discussion. Unfortunately, I can’t resolve many of these things here today. But if you watch it get teed up in litigation – defense counsel have a different view of all that; you know, they have a healthy skepticism that we’ve got to work through.”
Question: “I think no matter which side of the aisle you sit on hearing the charges was very stirring. There’s one case that I just wanted to ask you about just in terms of prosecution’s strategy and that was the murder of Wall Street Journal reporter Daniel Pearl. So Khalid Sheikh Mohammed has had a confession saying that he killed him with his blessed right hand. What I’ve reported out is that in your prosecution strategy you didn’t want to include a case against him regarding that murder because you have this strategy that includes these five defendants together and so to bring in another case would be difficult. But do you have a strategy to try to prosecute him on that murder?”
Brig. Gen. Mark Martins: “I can’t talk about this specifics of the case and the prosecution strategy of a coming up case. And I know that’s not satisfying to you but I would ask you to – and certainly deplore the death of anybody and the anguish of the victims of the crimes field. But I would just have to ask you please watch the proceedings and see what’s coming out of in terms of accountability for the charged defendants here. Sorry.”
Question: “General, you’ve spoken a lot about transparency in the process and you’ve made mention about the facilities here and their uses. Obviously, in advance of this you took all that into account in seeking to have the live feed sent back home for first responders and families of the victims. In the end, people were satisfied. Some of them were satisfied yesterday by that access but not everybody was. And given what looks – what sounds like you’re saying is a successful use of this new facility and the close circuit feed, why would the government not want to either send out a feed either online for the whole world to see to show process off or even to make it available to a wider range of people to actually – you know, partially transparent is like being partially pregnant.”
Brig. Gen. Mark Martins: “Well, no. The Supreme Court has not said that, Josh. The Supreme Court has said there are degrees of transparency and sometimes lesser transparency is consistent with other public interests. So I gave the example of Dina’s health record. You know, we may want to know lots about a crime and so forth. If Dina’s health record is not relevant to that – it’s certainly more transparent to give everybody Dina’s health record; I don’t think that’s in the public interest. So I would disagree with that.
“We are following the rule – exact rule that’s used in federal courts on the ability of people to view criminal trial proceedings. And again, this is an area where the Supreme Court has said you are balancing the interest of fair trials; you’re balancing free press – this is that Richmond newspaper stirring quote from Justice Burger that I gave you before about the people in an open society not demanding infallibility but they need to see why their government is making decisions. So fair trial, free press, and national security and other public interests in non-disclosure. Those aren’t always aligned. And the line that has been drawn – and a lot of people don’t agree with it and a lot of media is challenging this and so forth and that will go on for a long time. The line that’s been drawn in our society at criminal trials in our federal courts as well as in our federal military commissions because we are a type of federal court is that you will allow the media to come in. You are all a very important public servant because you’re the portal out into the public. You’re going to allow members of the public to come and they will not be able to televise it though. That those other interests – public interests – and one of them the fair trial is – Shepherd v. Wallace is a famous case. At some point, the level of intrusiveness of outside eyes into a courtroom can be disruptive and actually harm the methodical orderly process of a trial. And that’s the basic rationale, not expecting you to agree with it. But that’s why it’s not being streamed live.
“So I’m a major proponent and I’m not the only one. There’s so many great people who have been working to open up this process. The Assistant Secretary of Defense for Public Affairs, for instance, Jeh Johnson, the General Counsel, the Convening Authority, Bruce MacDonald – a lot of people have worked on this. But I make a motion to the judge for public access. And that’s one of the motions that I think it’s appellate exhibit 3. I make a motion and I say, ‘We have these sites. Judge, it’s your courtroom. We’ve got to make sure this thing in the end is doing justice with regard to this defendant. Do we have permission to transmit the proceedings – it’s not broadcast – transmit the proceedings to an extension of your courtroom?’ And then we list the places and there are 7 sites now stateside. So that’s the process. I know it’s contentious around the edges. There are people who are never happy. I think most people looking at it would say we have an increase in transparency and that it’s enabled more people to understand. I believe that transparency is absolutely critical in this situation because we’ve got a lot of contentious issues, a lot of hard fought issues on both sides, zealous counsel, and I’d like as many people as possible to understand that and to try to understand it.”
Question: “Just to report back to the families and the first responders. Is this going to be the transparency model that you would hope to be at work through the entirety of the process? That these facilities will remain – no less, no more – this is it?”
Brig. Gen. Mark Martins: “No, no, no. It’s more interactive than that. And I’m not the – you know, I make a motion. I seek it and I propose it and I try to facilitate it. But we’re taking feedback on how to do it. And if there’s another site…You know, one of the sites – that’s the first responder site up at Fort Hamilton and it was being run by the city of New York was the way in which the management of that worked out. So they’re kind of choosing who goes on a lottery system that kind of thing. All those types of details are ways of implementing this larger rule of getting maximum transparency consistent with the judges, dictate on what is fair and all that. And there’s a lot of, frankly, administrative ways of doing that that are open. So we’re open to that. And you know, ultimately we’ve got to shepherd the resources of the public carefully. So if the site’s not getting used we’ll shut it down kind of thing.
“But that’s a great question and we hope to enable the public to really view these proceedings.
“I understand the Fort Meade site for media wasn’t as heavily used as because a lot of people were down here.”
- Transcript: Gen. Mark Martins on the arraignment of Khalid Sheikh Mohammed & 9/11 co-conspirators
- Transcript: James Connell’s remarks on the arraignment of Ali Abdul Aziz Ali for 9/11 attacks
- Transcript: Cheryl Bormann’s remarks on the arraignment of Walid Mohammad Salih Mubarak Bin’Attash
- Transcript: James Harrington’s remarks on the arraignment of Ramzi Binalshibh
- Transcript: David Nevin’s remarks on the arraignment of alleged 9/11 mastermind Khalid Sheikh Mohammed
- Transcript: Cmdr. Walter Ruiz’s remarks on the arraignment of alleged 9/11 co-conspirator Mustafa Ahmed Adam al Hawsawi
- Military Commission at Guantanamo Bay: Transcript #1 of May 5, 2012 arraignment of Khalid Sheikh Mohammed, et al (PDF)
- Military Commission at Guantanamo Bay: Transcript #2 of May 5, 2012 arraignment of Khalid Sheikh Mohammed, et al (PDF)
- Military Commission at Guantanamo Bay: Transcript #3 of May 5, 2012 arraignment of Khalid Sheikh Mohammed, et al (PDF)
- Military Commission at Guantanamo Bay: Transcript #4 of May 5, 2012 arraignment of Khalid Sheikh Mohammed, et al (PDF)
- Military Commission at Guantanamo Bay: Transcript #5 of May 5, 2012 arraignment of Khalid Sheikh Mohammed, et al (PDF)
- WhatTheFolly.com: Alleged 9/11 mastermind to be tried by military court
- Military Commission at Guantanamo Bay: Khalid Sheikh Mohammed, et al – Description of charges part 1 (PDF)
- Military Commission at Guantanamo Bay: Khalid Sheikh Mohammed, et al – Description of charges part 2 (PDF)
Category: Civil Liberties, Criminal Justice, Current Events, Government, Human Rights, International, Transcripts, U.S. · Tags: 9/11, Afghanistan, Al Qaeda, Ali Abdul al-Aziz Ali, Article III judges, Boumediene v. Bush, Brig. Gen. Mark Martins, Cheryl Bormann, CIA, CIPA, civilian court, classified, Classified Information Procedures Act, coercion, Congress, Convening Authority, D.C. Circuit Court, Daniel Pearl, David Nevin, death penalty, detainee, enemy combatant, ex post facto, federal court, Geneva Conventions, graymail, Guantanamo Bay, habeas corpus, high value detainee, hijack, James Connell, jihad, Khalid Sheikh Mohammed, military tribunal, Mohammed Atef, Mustafa Ahmed Adam al Hawsawi, national security, Osama bin Laden, Ramzi al-Shibh, Supreme Court, terrorism, terrorists, torture, translator, transparency, U.S., United States, US Constitution, Walid Muhammed Salih Mubarek Bin 'Attash, war, women, Zacarias Moussaoui