Chief Prosecutor Outlines Military Commissions Process

NAVAL STATION GUANTANAMO BAY, Cuba, Nov. 8, 2011 — Court actions involv­ing detainees here must safe­guard nation­al secu­ri­ty, pro­tect the right of the accused to a fair tri­al and enable free­dom of the press, the chief pros­e­cu­tor for the Defense Department’s Office of Mil­i­tary Com­mis­sions said today.

Army Brig. Gen. Mark Mar­tins, chief pros­e­cu­tor, will appear in court here Nov. 9 for the arraign­ment of Abd al Rahim Hus­sayn Muhammed al Nashiri, who is charged with mas­ter­mind­ing the Oct. 12, 2000, attack on the USS Cole in the Port of Aden, Yemen. The attack killed 17 U.S. sailors and wound­ed 37 oth­ers.

While Mar­tins said he wouldn’t com­ment on this case or oth­er pend­ing court actions, he explained ele­ments of the mil­i­tary com­mis­sions’ frame­work to reporters here.

The Mil­i­tary Com­mis­sions Act of 2009 result­ed in reg­u­la­tions intend­ed to make pro­ceed­ings more trans­par­ent, Mar­tins said.

“The Supreme Court has said that the peo­ple of an open soci­ety do not demand infal­li­bil­i­ty of their insti­tu­tions, but it is dif­fi­cult for them to accept what they can­not observe,” he said. “That is why our crim­i­nal tri­als are open in Amer­i­ca … and it’s why these mil­i­tary com­mis­sions are open.”

Court pro­ceed­ings are trans­mit­ted via closed-cir­cuit tele­vi­sion to loca­tions here and in the states, so reporters and the pub­lic can view them, Mar­tins not­ed. There is a 40-sec­ond delay on trans­mis­sion, he added, so that any men­tion of nation­al secu­ri­ty issues raised dur­ing pro­ceed­ings can be delet­ed before it becomes pub­lic.

“Nation­al secu­ri­ty requires a bal­ance,” the chief pros­e­cu­tor said. “There are absolute require­ments that democ­ra­cy has in terms of basic infor­ma­tion — it requires trans­paren­cy; peo­ple have to under­stand the deci­sions that their gov­ern­ments are mak­ing.”

Issues that can’t be pub­licly dis­cussed because of nation­al secu­ri­ty include troop move­ments, intel­li­gence gath­er­ing and infor­ma­tion on ter­ror­ist orga­ni­za­tions, Mar­tins not­ed.

“There has to be a process by which, sur­gi­cal­ly … [we] remove those items where lives are at stake,” he added. �

The Mil­i­tary Com­mis­sions Act also requires that any state­ments entered into evi­dence be vol­un­tary, and not the result of tor­ture or degrad­ing treat­ment, Mar­tins not­ed.

The act directs that in cas­es that could result in the death penal­ty, such as al Nashiri’s, that the accused be grant­ed coun­sel learned in the applic­a­ble law relat­ing to cap­i­tal cas­es.

Rules for guilty ver­dicts in mil­i­tary com­mis­sions vary accord­ing to the max­i­mum sen­tence applic­a­ble: two-thirds of jury mem­bers must agree on guilt for a sen­tence of less than 10 years; three-fourths must agree on sen­tences of more than 10 years; and deci­sion on both ver­dict and death sen­tence must be unan­i­mous in cap­i­tal cas­es, Mar­tins explained.

The U.S. Court of Mil­i­tary Com­mis­sion Review exam­ines and decides on each case that results in a guilty ver­dict. Fol­low­ing that deci­sion, either par­ty may appeal to the U.S. Court of Appeals, Dis­trict of Colum­bia Cir­cuit. The Supreme Court is the final lev­el of review for mil­i­tary com­mis­sions’ cas­es.

The sched­uled Nov. 9 arraign­ment includes an open­ing ses­sion, a read­ing of charges unless waived by the accused, an adju­di­ca­tion of pros­e­cu­tion and defense motions, and a plea from the accused, Mar­tins said.

Arraign­ments must take place with­in 30 days of the accused receiv­ing ser­vice of for­mal charges, he added, and tri­al must fol­low with­in 120 days after charges are served.

The 120 days may be fur­ther extend­ed if the judge or defense coun­sel requires time to study ele­ments of the case, the chief pros­e­cu­tor added.

U.S. Depart­ment of Defense
Office of the Assis­tant Sec­re­tary of Defense (Pub­lic Affairs)