Last Hearing Option Cancelled – Listening to Both Sides: First Up the Prosecution

The NGO observers had a sliver of hope that we would see actual court proceedings when we learned on Sunday that Walter Ruiz, attorney for Mustafa al Hawsawi one of  9-11 detainees, had filed a motion for a hearing to obtain medical care for his client. The motion alleged that Mr. al Hawsawi was thrown to the ground and shackled on December 7 due to a misunderstanding as to whether he was to return to his cell or to the recreation area. However the Judge (Army Col. James L. Pohl) denied the request. The next hearings for the 9-11 detainees are docketed for February 9.

Given the lack of court proceedings, the NGO observers pushed for meetings with the defense and prosecution teams. The meeting were scheduled around the various 802 conferences and client meetings.


Brigadier General Mark S. Martins

We met first with Brigadier General Mark S. Martins, the chief prosecutor, and three members of his team. Prior to the meeting we were provided with his 13 December 2014 prepared remarks. The prepared remarks addressed the release of the Torture Report. It was Brigadier General Martins’ opinion that the Torture Report will not disrupt or derail the Military Commission process. Rather, the release of previously classified information will speed discovery for the defense. He reiterated in his prepared remarks that the prosecution will not introduce as evidence statements obtained through torture.

Brigadier General Martins began the session by introducing his staff and referring us to his prepared comments. He noted that he would not discuss the female guard issue nor the FBI conflict-of-interest issue; the latter because he had walled himself off from this issue. He then went on to answer our questions and provide information.

As in his prepared remarks, Brigadier General Martins discussed the prosecutions’s intent not to use evidence obtained through torture. He noted that it is imperative that the people see the government’s case. This is not possible if the prosecution uses classified information. Ironically, his intent doesn’t seem to be shared by some other powers in the government — for example, those entities fighting the release of the remaining torture materials.

In response to one NGO observer’s frustration with the length of time it is taking to get these matters to trial, he likewise shared his frustration with the length of the process. He noted that he feels the frustration of the families of the victims every day. He assured the NGO observers that he was in it for however long it takes. He reassured us that the government was not going to lose interest in providing a sustainable and supportable process. I asked him if he had considered not requesting the death penalty for the 9-11 detainees. He responded that he is guided by the realistic prospect of success when he makes his prosecutorial decisions.

Brigadier General Martins also stressed the importance of the NGO observer. He noted that the observers are indispensable to the wider public and serve as checkers and watchers on the government. (I asked at a later time (1), “why,” given the his view of the importance of transparency, that there were no additional viewing sites in the US? I was told it was because of cost and that there was only one other additional site under discussion — a site in Northern California. Viewing sites are based on the location of victim’s families. Currently the feeds are costly because they are delivered via satellite; perhaps the costs will go down when the $40 million underwater fiber optic cable that is being laid from South Florida is in place.)

Brigadier General Martins is a Rhodes Scholar and Harvard Law School graduate. He appears to be a thoughtful,  resolute, well-read, and highly educated lawyer. It is obvious that he is in an untenable position. He represents a government that is demanding each member of the defense team sign a Memorandum of Understanding(2) before it releases information vital to the defense; a government that resists the release of information that will fully disclose the rendition, detention, and torture of countless individuals; and a government that has no qualms about recording privileged attorney-client meetings; attempting to flip defense team members into government informants; and setting up road blocks that derail the process (e.g., the female guard issue).

At the end, I had a chance to say thank you to Brigadier General Martins for his information session with the NGO observers. I also thanked him for his willingness to take on the job of “Chief Prosecutor.” It is my opinion that it is imperative that we have a process; at this point, it has been decided that the process that will determine the guilt or innocence of, and if necessary the sentences to be imposed on, the Guantanamo Bay detainees is the Military Commission process. To have a genuine process all those involved must have integrity and a dedication to the rule of law even if units of our government fail this test. Brigadier General Martins impressed me as a person of integrity and dedication and one who will perhaps fight as hard as the defense teams for a fair and open process even if it means opposing the very government he represents.

The challenge for NGO observers is that we often only get one official session. We don’t get a chance to come back and ask follow-up questions once we have vetted the information with other sources.(3) We got a different view of many of the issues we discussed with Brigadier General Martins when we had our meeting with the defense teams (see next post); it would have been helpful to be able to cross-check the information with another session.

(1) I actually asked him while the plane was loading — I was sitting next to Carol Rosenberg and she was asking him questions so I just chimed in. It is one of the oddities of the situation — the defense, prosecution, judiciary, observers, media and others are often in each other’s company.

(2)Members of defense teams are being asked to sign a Memorandum of Understanding pursuant to which the lawyer agrees not to disclose any confidential information provided to the defense team and to prevent the client from disclosing the confidential information. Only one defense team has signed the agreement to date; the rest have declined.

(3)Brigadier General Martins provided, without prompting, data to refute the defense’s statements that they are often denied access to their clients. His data showed the number of meetings requested and the number of meeting requests granted. As in all cases, statistics are only as good as the question asked. In this case, the question is not how many visit requests are approved, the question is how many of the approved meetings actually take place. Recently the use of female guards has prevented approved meetings from happening. As an NGO Observer one must always weigh each piece of evidence from multiple perspectives.

(Posted by Catherine Lemmer)

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