By Cheryl Pellerin
American Forces Press Service
WASHINGTON - Three months after the
arraignment of Khalid Sheikh Mohammed and his four co-defendants, those accused
of planning and executing the 9/11 terrorist attacks will be back in court this
month for hearings on motions made by the defense and prosecution.
Army Brig. Gen. Mark S. Martins, chief
prosecutor in the Office of Military Commissions, is overseeing the trial in
the case of the United States vs. Khalid Sheikh Mohammed, Walid Muhammad Salih
Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam
al Hawsawi.
Martins is a graduate of the U.S.
Military Academy and Harvard Law School and is a Rhodes scholar.
“The military commission convened to try
the charges referred to it against [the defendants] will hold what are known
under the Military Commissions Act of 2009 as sessions without panel members
present,” Martins told American Forces Press Service.
The sessions will take place at Naval
Station Guantanamo Bay, Cuba, Aug. 22-24 and Aug. 26-28.
“Such sessions -- in the same manner
that a federal district court hearing a criminal case will do prior to the
seating of a civilian jury -- enable the hearing of various matters in an
orderly, methodical way for resolution by the judge prior to trial,” he added.
What the chief prosecutor described as
an adversarial process is consistent, Martins said, with the fair, transparent
and accountable administration of justice under the rule of law.
The charges allege that the
co-defendants are responsible for planning and executing the attacks of Sept.
11, 2001, in New York, Washington and Shanksville, Pa., resulting in the deaths
of 2,976 people.
During a 13-hour arraignment in a secure
courtroom at Guantanamo Bay in May, the five were charged with terrorism,
conspiracy, attacking civilians, attacking civilian objects, intentionally
causing serious bodily injury, murder in violation of the law of war,
destruction of property in violation of the law of war, hijacking or hazarding
a vessel or aircraft.
Before evidence can be presented,
“particularly in a complex, joint trial such as this one figures to be, many
matters must be addressed and placed on the record,” the chief prosecutor said,
adding that this session is being called to consider 24 or so motions made by
the defense and the prosecution.
Martins emphasized that the charges are
only allegations and that the accused are presumed innocent unless proven
guilty beyond a reasonable doubt.
In terms of the motions to be heard, he
added, each piece of business must receive due deliberation.
“Some of the motions by the defense
allege jurisdictional error, which means that if the defense position were to
prevail, the commission would lack the authority to proceed,” Martins
explained.
“The prosecution’s position, not surprisingly,
is in opposition to these motions,” he added.
In some of its motions, he said, the
prosecution is seeking standard protective orders necessary to ensure that
certain materials provided to the defense in discovery are not publicly
released. These include classified information protecting sources and methods
of intelligence gathering, information about terrorist organizations, certain
privacy information, and several categories of information routinely protected
in the public interest, the chief prosecutor said.
Martins advised media members who hear
continuing complaints from defense counsel in the sessions about a lack of
resourcing and the difficulty of forming effective attorney-client
relationships to “seek out additional perspectives, including by reading
government submissions to the court on the matter and by reviewing facts about
resources provided, counsel and investigative hours billed and paid, numbers of
flights to Guantanamo available and not taken, opportunities for communication
with client through a privilege team, and similar empirical data.”
The judge intends to hear arguments from
legal counsel for the American Civil Liberties Union and several media
organizations regarding public access to the proceedings, Martins said.
“The prosecution supports the judge
hearing such argument and is facilitating counsel’s travel to Guantanamo for
this purpose,” he said. “The trial process only benefits from the increased
public-access measures that have been put in place, including closed-circuit
transmission of the proceedings to the continental United States and same-day
posting of unofficial, verbatim transcripts of each session.”
But, he added, “the prosecution opposes
departure from the public-access rules used in U.S. federal district courts and
military courts-martial, while ACLU and the media organizations seek such a
departure in desiring the proceedings to be televised.”
No federal criminal trial or military
court-martial has ever been televised, the chief prosecutor noted, “on the
rationale that televising trials would violate the balance between the public’s
manifest interest in observing the workings of government and other important
public interests, including the fair administration of justice.”
The existing public-access rule, he
added, “incorporates the value that criminal trials are foremost about
ascertaining the truth, determining the innocence or guilt of the accused, and,
if the accused is convicted, arriving at a just sentence.”
While the 9/11 attacks have been heavily
chronicled, Martins said, “the process of seeking accountability under law for
the crimes of that day remains unfinished.”
In the months ahead, more sessions
without panel members will likely be held to deal with legal and evidentiary
issues, he added.
“As the accused and their counsel have
yet to receive hundreds of thousands of pages of discovery, … these sessions
are part of a court process that will likely take many additional months,”
Martins said.
“It is an important guarantee of
fairness that an accused can examine the evidence against him or her, and … have
access to any information that might tend to exculpate or, if convicted, lessen
the appropriate punishment,” the chief prosecutor explained.
The claim has been made that the many
motions and the likely length of the process show that military commissions are
unsettled and that such extensive litigation would never happen in an
established civilian court, Martins said.
“Such claims are mistaken,” he added.
“The judge in this case will consider the facts and apply a well-developed body
of law and precedent. That is what courts do, and that is why records of trial
and law books containing case precedents are fat,” he said.
As an example, Martins cited the case of
Zacarias Moussaoui, a French citizen and self-proclaimed al-Qaida operative who
was tried in federal district court in Virginia and in 2006 received a sentence
of life in prison.
“The federal judge considered hundreds
of motions over the course of a four-year, four-month trial,” the chief
prosecutor said of the Moussaoui trial, adding that the case produced 1,900
docket entries and some 1,200 exhibits.
“However long the journey,” Martins
said, “the United States is committed to fair and thorough trial of these
serious charges.”
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