A Prosecutor Makes The Case For Military TrialsKaren J. Greenberg on NPR, April 03, 2012
The chief prosecutor for the military commissions at Guantanamo Bay, Cuba, is arguing a difficult case: that the commissions are not only fair, but can take pride of place alongside the civilian criminal justice system.
Brig. Gen. Mark Martins is the chief prosecutor for the commissions, the courts at the naval base that try high-profile terrorism suspects.
He has been called Guantanamo's detox man largely because he has made it his mission to show that the military commissions system at Guantanamo is no longer a toxic version of victor's justice.
When the Bush administration resurrected the commissions system in the days after the 9-11 attacks, it was seen as a convenient way to process the hundreds of detainees at Guantanamo.
The fullness of time, Martins argues, has turned the commissions into something more: something that actually resembles an adversarial judicial process.
"Law is being applied, judges are interpreting laws, counsel are arguing for different pieces of a particular motion," Martins told NPR in an interview. "Justice is being done, we're just absolutely committed to that. We've worked hard on reforms. Congress has been involved twice. The Supreme Court has ruled upon this."
"The current system is fair, but I understand that people will have to see that for themselves," said Martins, who graduated first in his class at West Point, studied as a Rhodes scholar and then went to Harvard Law School.
Closed-Circuit TV Feeds Of Trials
Actually watching the proceedings used to be one of the system's basic shortcomings.
Proceedings were all secret. To see what was going on in the courtroom required traveling to Guantanamo and getting a bevy of clearances. Not anymore. The curious can now watch the trials on closed-circuit television feeds at selected army bases. To get in, citizens just need to show a picture ID, officials say.
Court transcripts are available online. So are motions. Martins says this new transparency is part of a broader effort to convince naysayers that the military commissions aren't so different from civilian courts.
To underscore the point, eight Justice Department attorneys are part of the prosecution teams working on two of the marquee trials the military commissions are hearing: the trial of Abd al-Rahim al-Nashiri, the man who allegedly planned the attack against the USS Cole in Yemen in 2000, and the trial of the alleged Sept. 11 mastermind, Khalid Sheikh Mohammed, and his alleged co-conspirators.
Those Justice Department lawyers work for Martins. He assigns them to cases, and they answer to him as well as the Justice Department.
Blending Military And Civilian Systems
Martins' himself is no stranger to the Department of Justice.
For seven months in 2009, between deployments, Martins worked at Justice on President Obama's Detention Policy Task Force.
Then, three years ago, he became the first soldier to have his promotion ceremony held in the Justice Department's Great Hall. The country's top civilian lawyer, Attorney General Eric Holder, spoke at the ceremony as did Gen. David Petraeus who, at the time, was the head of the United States Central Command. Petraeus and Martins have worked together for more than two decades.
At the ceremony, Petraeus praised Martins: "Above all he is one of those rare individuals who always seems to end up in the toughest assignments and always performs exceedingly well in them."
Petraeus was Martins' first boss when Martins was a junior JAG officer with the 101st Airborne at Fort Campbell, Ky. Years later, Martins helped Petraeus during the surge of U.S. troops in Iraq. Then Martins served in Afghanistan. He was in charge of a field team that was supposed to transform lawless areas in Afghanistan into law abiding ones. Now he's being asked to transform the military commissions at Guantanamo.
Support From The Justice Department
Martins has some unexpected allies on this mission, including key people at the Justice Department. Just last month, Holder, the attorney general, called the military commissions "essential to the effective administration of justice."
And he isn't alone. Lisa Monaco, the assistant attorney general for National Security at Justice, said the reformed military commissions have the "same fundamental guarantees of fairness that are the hallmark of criminal trials."
This is a far cry from the grumbling that could be heard coming out of the Justice Department when Congress passed a law that essentially required that detainees at Guantanamo be tried on base.
Still, critics have reservations.
"One of the biggest problems is that today's military commissions carry with them the baggage of the military commissions from the Bush era and there is no way to get around that," says Karen Greenberg, director of the Center on National Security at Fordham Law School.
That's why Greenberg says Martins has a Sisyphean task of correcting the commissions' difficult history. For example, the Bush era military commissions allowed hearsay evidence and coerced statements – statements that might have come from torture – and while the reformed commissions, as Martins calls them, no longer permit that, the old system still manages to cast a pall over the new.
"There are other problems," says Greenberg. "Basic things like attorney-client privilege. Defense attorneys and their clients at Guantanamo have their mail read. This might be okay under some sort of military commission, but it carries with it the legacy that was part of the Bush administration's policy. The Bush administration treated defense attorneys as if they were collaborating with the enemy and that sense hasn't really gone away."
Martins acknowledges the difficulty: he says the Bush-era commissions system in 2001 was flawed. But the case he is making is that today's system is something else altogether.
Now commissions give those on trial a meaningful opportunity to mount a defense. "I believe that as people watch this system and see it is sharply adversarial, it has all the protections that are demanded by our values... that they will see that this is a system they can have confidence in," says Martins.
Plans To Retire From The Military
Martins would like to remain in the post for two more years, but has asked the military to allow him to retire after he finishes his current assignment as chief prosecutor.
"I've decided to request that this be my last assignment in the military," he told NPR in an interview. "That will afford a measure of continuity of the commissions process and it will enable me to stay at least until November 2014."
The departure of a chief prosecutor at Guantanamo has happened before, but under very different circumstances.
One chief prosecutor who preceded Martins was accused of rigging the military commissions' process to ensure convictions.
Another quit after he said he felt pressured to include evidence derived from torture in commissions proceedings. He later said that he left because he didn't feel he could do that in good conscience.
Martins says his decision comes out of a need to make the commissions right. He says he wants to finish the job he started.
That job will be under even more scrutiny in the coming weeks. That's when Khalid Sheikh Mohammed and four other men accused of taking part in the 9-11 attacks are expected to be arraigned in a Guantanamo courtroom. Martins is keenly aware that everyone will be watching.