The Pentagon has extended the career of the chief war crimes prosecutor into the first year of the next president of the United States, a move designed to instill stability and confidence in the on-again, off-again war crimes trials at Guantánamo Bay, Cuba.
Army Brig. Gen. Mark Martins, 54, was due to retire from service in November. Instead, said Army Lt. Col. Myles B. Caggins III, the Department of the Army has delayed the general’s retirement “until November 2017 specifically for him to continue performing the duties of Chief Prosecutor, Office of Military Commissions, Washington, D.C., for an additional three years.”
The move is not a surprise. Martins, a career Army officer, has for more than a year been telling victims he wants to see the Sept. 11 and USS Cole death-penalty cases through. Neither currently has a trial date.
But it does mean that the Pentagon has to find a one-star admiral or general to serve as Guantánamo Chief Defense Counsel to meet a Congressional mandate.
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Martins already took himself out of contention for other Pentagon work to stay on the job. That denied him the possibility of promotion to the rank of major general, which might have come with other positions. But as a brigadier general his mandatory retirement date was in November.
Instead, Martins has assigned himself to the court’s marquee case, the five-man Sept. 11 conspiracy trial, which has been in pretrial hearings since arraignment in May 2012. He’s also a courtroom prosecutor in the death-penalty trial of Abd al Rahim al Nashiri, a Saudi accused of masterminding the USS Cole bombing that killed 17 American sailors.
Now defense lawyers are awaiting declassification of the so-called Senate Intelligence Committee “Torture Report” to learn what the CIA did to the accused terrorists in years of secret detention and interrogation before Guantánamo implicates the evidence.
Martins’ extension has also injected an air of urgency in a behind-the-scenes Pentagon effort to establish a one-star slot at the Office of the Chief Defense Counsel — something Congress ordered in February.
Guantánamo defense attorneys have complained for years of insufficient resources at the war court where the taxpayers pay for the accused terrorists’ defense teams.
Air Force Col. Karen Mayberry currently runs the office. Until Martins took over in June 2011, the defense and prosecution chiefs were equal in rank.
Once the equality rule became law, Secretary of Defense Chuck Hagel issued a waiver.
“The secretary of defense intends to upgrade the position of Chief Defense Counsel to the grade of brigadier general or rear admiral lower half,” Caggins said Friday, adding that a “well-qualified candidate … will likely be identified within the next six months.”
Meantime, he said, Hagel will waive the requirement again and keep Martins and Mayberry.
At the Heritage Foundation, lawyer Cully Stimson noted that the decision decouples Martins’ Army career and role from the administration of Barack Obama. The two graduated from Harvard Law School a year apart.
The trials may not be done by the time Obama leaves office. Delaying Martins’ retirement leaves him in place through the next two elections and until retirement or resignation — unless the next president chooses to replace him.
Stimson, a Martins fan, was Assistant Secretary of Defense for Detainee Affairs during the Bush administration, and said the symbolism of the extension shows “the umbilical cord is cut, there’s no alignment.”
“He's brilliant. He's a model officer. But he's doggedly determined to focus on this mission for the remainder of his career. I think it's good for commissions, for both the defense and the government.”
Martins currently has seven active cases — the six capital prosecutions plus that of an Iraqi man accused of more classic war crimes as commander of a Taliban-affiliated al-Qaida force in Afghanistan between 2002 and 2004.
None of them has trial dates on the court calendar as three different judges navigate through pretrial hearings that will set the stage for military commissions before U.S. military officers at the remote U.S. Navy base in southeast Cuba.
Currently, the Sept. 11 case is stalled on a conflict-of-interest question raised by the discovery that the FBI had infiltrated a defense team. The judge has ordered just two days of hearings next month, Oct. 16-17, focused on the conflict question.
At the USS Cole prosecution, the judge has dismissed charges accusing Nashiri of masterminding al-Qaida’s 2002 attack on a French oil tanker, the Limburg. On Friday, Martins’ office appealed that decision to a panel in Washington, D.C., a move certain to also cause delay.
Of Guantánamo’s 149 detainees, one is convicted of war crimes but lawyers have overturned part of that conviction and are continuing to pursue an appeal; two others have negotiated pleas in exchange for testimony that could lead to certain release from U.S. military detention, and seven await trial.
That leaves the rest in various categories of eligible for release or transfer (79); indefinite detainee without charges or trial (37) and nearly two dozen in legal limbo as they have not been charged and have not been declared forever prisoners.
Last year, Martins anticipated he would at most prosecute seven more cases besides the Sept. 11 and USS Cole trials. He also could theoretically prosecute other alleged war crimes by other captives held outside Guantánamo although it is still an open question whether Islamic State captives would be covered by Congress’ 2009 Military Commissions Act.
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