Transcript: Press briefing remarks by Gen. Mark Martins on motions hearings for U.S.S. Cole bombing suspect Abd al-Rahim al-Nashiri

Edited by Jenny Jiang

Transcript of remarks by Brig. Gen. Mark Martins, Chief Prosecutor for the Office of Military Commissions, on the motions hearing for U.S.S. Cole bombing suspect Abd al-Rahim al-Nashiri on July 19, 2012 at Guantanamo Bay: 

“Good afternoon, everybody. I understand that we’ve distributed copies of prepared text and I won’t go ahead and — we’ll get them out to you. We’ll get them to you soon here.

“But I’ll only draw attention to one item from that relating to this 505H hearing that you heard.

“This was the sixth session of the pre-trial session without members of the case of Abd al-Rahim Hussein Muhammed al-Nashiri, and we summarized the things that happened today for you in the statement but I do want to discuss this 505H.

“The Military Commission did hold a closed proceeding pursuant to Military Commission Rule of Evidence 505H, which permits an in camera presentation concerning the use of classified information.

“As the Commission stated on the record today, the 505H proceeding was held to determine whether there should be a closed hearing pursuant to Rule for Military Commission 806 and to minimize the amount of closure. The Commission determined that closure was not necessary at this time, and the classified motions will be considered at a future motion session.

“Significantly, the same closed proceeding rules are followed in federal courts. Section 6 of the Classified Information Procedures Act, which is analogous to Military Commission Rule of Evidence 505, provides specific authority for federal courts to hold (1) an in camera discussion, (2) place on the record where the record is sealed but available for appellate review.

“In practice in federal court, such proceedings can be held outside the presence of the accused. They are closed to the public because the proceedings often involve the discussion of classified information that the defendant and public are not authorized to hear.

“These in camera proceedings take place in cases involving classified information including, for example, in United States v. Rosen and Weissman. And we give you this cite in the statement. That’s an Eastern District of Virginia case from 2006. There, the federal court held a CIPA Section 6 proceeding under seal and in camera, and the defendants ‘were present for the beginning of the hearing but later excused.’

“And in United States v. Smith, which is a Fourth Circuit case from 1985, the trial court conducted a closed proceeding pursuant to CIPA Section 6 to determine the use, relevance, and admissibility of the classified information that the defense sought to be introduced. And they are often held in chambers with a reporter present. They’re not evidence-taking proceeding. Motions are not being argued. Again, you’re determining use and relevance issues and trying to minimize closure.

“Although rare and exceptional, closure to protect classified sources and methods is fully consistent with our core values and the rule of law.

“As I’ve said before, embarrassment is not a legal basis for closure nor is the fact that a law may have been broken. So the judge must make specific findings on the record, must preserve them for appellate review, must have an overriding reason to do it, must try to narrow it – must narrowly tailor it before he does it.

“So I’ll leave the rest for you from the statement and would be pleased to take some questions.”

Press briefing Q&A:

Question:

“So the expectation is that you’ll be able to have arguments on those two motions without closing the door?”

Brig. Gen. Mark Martins, Chief Prosecutor: 

“I am not going to speculate what’s going to happen with those. They were not – appellate exhibits 88 and 89 were not argued. So those motions were not argued. As the judge mentioned, we held this 505H, which is a housekeeping kind of thing to figure out use, relevance, admissibility, try to narrowly tailor the closure. It’s one of these tools that Congress gave the court in CIPA to try to accomplish the different goals of CIPA.”

Question:

“But you did say the closure was not necessary…”

Brig. Gen. Mark Martins, Chief Prosecutor: 

“Well, it means because we didn’t argue the motions. They deferred. So…”

Question: 

“Oh. Maybe down the road, they could say to hear them in open court?”

Brig. Gen. Mark Martins, Chief Prosecutor: 

“Well, I’m not going to, you know, speculate or describe what the actual, you know, posture of that is. That’s for the court – but the motions were not argued. So 88 and 89 was something that had been on the scheduling order for this time down at Guantanamo but that will happen at a later date.”

Question: 

“But the 505H was designed to minimize the amount of closure. So did the 505H succeed in its stated goal?”

Brig. Gen. Mark Martins, Chief Prosecutor: 

“It’s – you know – what happened in it is under seal. It is a – it was a housekeeping type of session or hearing. And it is, again, but that is what its intent. It did what it, you know, it was set up to do. You know they considered the things that are in 505H and Section 6 of CIPA.”

Question: 

“You mentioned it was decided that closure was not necessary at this time. Does that mean that it can be revisited later whether or not…?”

Brig. Gen. Mark Martins, Chief Prosecutor: 

“I’ll let the order speak for itself, and you’ll have that transcript very soon. You know, the transcript that contains his ruling even the stenographers, as I understand, had a hard time keeping up with me citing all those statutes.

“But good questions. Anything else?”

Question: 

“You know the next [incomprehensible] for this is? [Inaudible]”

Brig. Gen. Mark Martins, Chief Prosecutor: 

“As you know, the Commission granted a continuance in the 9/11 case until after Ramadan. I’m aware of no proceedings that will occur prior to the end, which I think is like the 20th. I think Eid al-Fitr is on the 20th.”

Question: 

“I guess what I’m asking is when this Nashiri [inaudible]?”

Brig. Gen. Mark Martins, Chief Prosecutor: 

“You know, I have to check. I did not go to the last scheduling session. I had to cut out but we do have a date but I’ll let Rick mention it.

“Anything else?

“I’ve commented before on the five un’s…was speaking actually with some of you yesterday. Military Commission by zealous counsel, doing a zealous job for their client, talk about Military Commission being variously unsettled, unfair, unnecessary, unknown, and unbounded. I know these criticisms echo. You hear them a lot.

“And I’d ask you to just examine the proceedings, and as you are you’re taking the opportunity to view it on behalf of all interested members of the public. Look at those arguments and ask questions about those different allegations – that they’re unsettled. That the law is so unsettled that you can’t figure out what it is that is unfair.

“Keep in mind that William Shawcross, the son of Lord Hartley Shawcross of Nuremberg, is fond of saying that if you could transport somebody from Nuremberg to these proceedings they’d be astonished at the level of due process and rights and fairness. And by the way, that is the way it should be. We – our values have changed on what constitutes a fair trial.

“Unnecessary, that all this can be done in federal courts is the sort of bumper sticker of that argument. Unknown, that it is opaque and this is secret, that transparency is not a real value. And unbounded, that this is military jurisdiction expanding.

“And I’d love to have a discussion with you on these things in the macro level. We can’t talk about specific cases but I’ve analyzed these and talked to a lot of people and they tend to be three more un’s – uninformed, unfounded, and ultimately, unwise in their thoughts. And would like to talk to you about it and certainly worth lots of discussion. There are good faith arguments to all of them but we ought to probe the facts, study the record, and see if it really, really holds up to scrutiny.

“And I do want to close by recognizing the professionalism and work of the Coast Guardsmen, soldiers, sailors, airmen, and Marines of Joint Task Force Guantanamo. And I also acknowledge the desire for justice that under law that is felt by so many who are observing these proceedings and represented by you, including the survivors and the victim family members.

“Thank you.”

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One Comment on “Transcript: Press briefing remarks by Gen. Mark Martins on motions hearings for U.S.S. Cole bombing suspect Abd al-Rahim al-Nashiri

  1. Pingback: Transcript: Press briefing remarks by Defense Counsel Richard Kammen on motions hearings for U.S.S. Cole bombing suspect Abd al-Rahim al-Nashiri | What The Folly?!

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