Chief Prosecutor Outlines Military Commissions Process

By Karen Parrish
American Forces Press Service

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.