Pentagon won’t seek death penalty in Guantánamo’s Bali bombing case

Brig. Gen. Mark Martins, the chief prosecutor for war crimes, at a May 6, 2012 news conference at Camp Justice, the U.S. Navy base at Guantánamo Bay, Cuba.
Brig. Gen. Mark Martins, the chief prosecutor for war crimes, at a May 6, 2012 news conference at Camp Justice, the U.S. Navy base at Guantánamo Bay, Cuba. Miami Herald file photo

Pentagon prosecutors do not intend to seek the death penalty at the proposed war crimes trial of the alleged architect of the Bali bombing in Indonesia, the chief defense counsel for military commissions said Wednesday.

Prosecutors swore out charges against Riduan Isomuddin, 53, on June 20, accusing the man known as Hambali of two 2002-03 terrorist bombings in southeast Asia that killed more than 200 people.

It is the first known new case of the Trump administration, and although the charges were sworn out more than a week ago, the Pentagon has yet to acknowledge the case or post it on the Pentagon’s Military Commissions website proclaiming “Fairness * Transparency * Justice.”

MORE NEWS: Prosecutor charges Hambali at Guantánamo with Bali, Jakarta terrorist bombings

But Wednesday, Marine Brig. Gen. John Baker said that he was notified by email the evening before that Army Brig. Gen. Mark Martins would not seek a capital prosecution, meaning that Baker would not need to hire a criminal defense attorney learned in the practice of capital punishment for Hambali’s case.

“They’re not intending at this point to seek a capital referral,” said Baker, the chief defense counsel. “So I’m not at this point going to ask for a learned counsel.”

Interestingly, chief prosecutor Martins has consistently refused to confirm the existence of the 37-page charge sheet — obtained by the Miami Herald last week — that accuses Hambali of conspiring to commit murder, terror and other war crimes in the 2002 bombings of a Bali, Indonesia, resort town and 2003 explosion at a Jakarta Marriott. At least 213 people died in the attacks, and many more were injured, including U.S. citizens.

Martins also pointedly refused in an interview Tuesday evening to say whether he would be seeking the death penalty. “No comment,” he said, adding, “I’m not going to confirm or deny that we’ve done anything in the area of charges on a detainee. And I think that’s the principled response.”

At issue, Martins said broadly, is that his office has no obligation to disclose the existence of any sworn charges until he has forwarded them to the Pentagon official who decides whether the case goes forward, Convening Authority Harvey Rishikof.

Harvey Rishikof holding a copy of the Constitution as he moderated a Sept. 16, 2014 debate between attorneys John Yoo and Bruce Fein. CSPAN

“I’ve not forwarded any charges to the convening authority in any case,” Martins said. “When I do you’ll know about it.”

Rishikof’s role is to decide whether the case merits prosecution, which crimes can be charged at a future arraignment at Camp Justice and whether to overrule Martins’ recommendation and order a death-penalty prosecution, anyway.

“It’s a transparent system and it enables you to see what’s happening,” Martins said. “Parts of it are not completely available for you to view.”

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Hambali, 53, was captured in Thailand in 2003 and spirited off to the CIA’s secret Black Site prison program until President George W. Bush had him transferred to Guantánamo for trial in September 2006. He has never before been charged with a crime here. He is held as a Periodic Review Board-certified indefinite detainee in the war on terror, a “forever prisoner.”

Riduan Isomuddin, the Guantánamo captive known as Hambali, in a photo from his October 2008 prison profile provided to McClatchy by WikiLeaks.

In 2011, before Martins became chief prosecutor, the Pentagon disclosed the sworn charges against a Guantánamo captive now facing trial as the alleged architect of the October 2000 USS Cole bombing, noting that the prosecution would be forwarding that case to then Convening Authority Bruce MacDonald. Martins said Tuesday night that, in the instance of that disclosure, the forwarding of charges was imminent if not virtually simultaneous to the public announcement on April 20, 2011.

“In [Abd al Rahim al] Nashiri we forwarded them almost immediately to McDonald. The swearing is not a public act. Read what the public trial rule is,” Martins said. “Not every piece of every action by an official in the process is open to you, and I’m sorry about that.”

The commentary did little to explain why Martins’ office chose to swear charges in a new case now, at the start of the Trump administration and as Rishikof’s office was developing a plan to handle an overcrowded 2018 war court schedule. Judges in the current three major cases involving seven of Guantánamo’s 41 prisoners have double booked the single courtroom at Camp Justice, raising a question of whether the U.S. military assigned to the prison can support night court.

READ MORE: Night court at Guantánamo? Lone courtroom is double-booked

On the days the charges were sworn out and presented to Hambali, June 20 and 21, Rishikof was at Guantánamo, according to multiple military sources, holding a three-day workshop on long-range planning for military commissions. Roundtable participants included representatives of the prison staff, Navy base staff, U.S. Marshals Office, FBI, U.S. Southern Command, the Pentagon’s Joint Staff and the Camp Justice media relations team.

Carol Rosenberg: 305-376-3179, @carolrosenberg