Guantánamo war crimes prosecutor offers to extend tour of duty

Army Brig. Gen. Mark Martins, chief war crimes prosecutor, briefs reporters Sunday, July 17, 2106.
Army Brig. Gen. Mark Martins, chief war crimes prosecutor, briefs reporters Sunday, July 17, 2106.

The chief war crimes prosecutor said Sunday on the eve of resumption of pretrial hearings in the Sept. 11 death-penalty case that he’s willing to once again postpone his retirement to stay on the job past late 2017.

Army Brig. Gen. Mark Martins was due to retire in November 2014, and already received a three-year extension. He came to Guantánamo this weekend wearing the Army’s new battle dress, which is optional until Oct. 1, 2019.

“Nobody in this process is indispensable. But to the extent I can add some continuity I’m available to do it for as long as necessary,” Martins said in response to a reporter’s question. Secretary of Defense Ash Carter appointed him to the job in July 2011 when Carter was deputy Defense secretary.

In an unspoken nod to the fact that the next president could appoint new Pentagon leaders, the general also said: “I serve at the will of the elected and appointed civilian leadership.”

The judge has set no start day for the 9/11 trial. Hearings for the five men who allegedly trained, advised and financed the 9/11 hijackers resumed Monday at Camp Justice.

But in a wrinkle, the judge met only with prosecution and defense lawyers, and for just 21 minutes. Neither the public nor Khalid Sheik Mohammed and his four accused accomplices were present. Army Col. James L. Pohl, the judge, usually requires all five defendants to attend on the first day. Instead he elected to start two weeks of hearings with the closed session, which was due to resume Tuesday.

On Sunday, lawyers for an alleged Sept. 11, 2001 plot deputy, Walid Bin Attash, submitted a classified filing for the judge’s eyes only. Nobody would divulge its contents. But in October a similar snag occurred when the 30-something Yemeni asked about how he might represent himself.

Then, the judge and lawyers huddled in closed session — no accused in court — to craft a script to advise the former CIA captive on what rights he would lose if he were to defend himself at the five-man death-penalty trial. Bin Attash has been kept virtually incommunicado since 2003, and cannot see all the evidence against him at the national security tribunal.

Lawyers came to the base this week expecting to argue a series of defense access questions — to evidence, experts, witnesses and whether the judge will gag them on publicly discussing unclassified information that the prosecution defines as “propaganda.”

Trial preparation is still in an early stage. Martins’ 100-member prosecution team is still evaluating evidence, including what they read in the full Senate “Torture Report” on the CIA secret prison network that used brutal techniques on the five men. Defense lawyers don’t get to see it, and prosecutors decide what lawyers for the accused terrorists are entitled to see, and what goes to the judge for substitution.

For now, the only deadline is one promised by Martins — Sept. 30 — to provide the judge or defense attorneys the evidence that his team decides is relevant. After that, because this is a national security case, the judge decides if prosecution-crafted substitutions for actual evidence are adequate. Then the defense lawyers can seek additional discovery and file pleadings to exclude evidence.

“I’m going to do it for as long as I’m asked to do it, and do my best,” said Martins, 55, revealing his offer to extend his tour of duty. “Whoever is involved in this, this is going to keep going. And there’s going to be a resolution by law, in law, that holds individuals accountable. If I were reappointed I would continue to serve. I’ve indicated I’m available to do that.”

Pohl, 65, was due to retire years ago under the U.S. military’s up-or-out system. He is chief of the Guantánamo judiciary. The Pentagon has extended the colonel’s service annually to keep him at the war court.

Carol Rosenberg: 305-376-3179, @carolrosenberg

Additional reading

The chief prosecutor’s eve of Sept. 11 pretrial hearing statement.

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