[Congressional Record (Bound Edition), Volume 158 (2012), Part 5]
[Extensions of Remarks]
[Pages 6075-6076]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          MILITARY COMMISSIONS

                                 ______
                                 

                           HON. MICK MULVANEY

                           of south carolina

                    in the house of representatives

                          Monday, May 7, 2012

  Mr. MULVANEY. Mr. Speaker, no one in this body was untouched by the 
tragedy of Sept. 11, 2001, which will stand in our history as one of 
the most infamous crimes ever perpetrated against the people of the 
United States. It not only cast a shadow of despair over America, but 
also thrust us into a different kind of global conflict, fighting an 
unconventional, adaptive enemy that has adopted the mass murder of 
innocent civilians as a weapon of war.
  More than four years ago, we apprehended the alleged mastermind of 
the 9/11 plot, Khalid Sheikh Mohammad. He and four others are awaiting 
trial in the Guantanamo Bay detention facility on charges that include 
2,973 individual acts of murder. That trial will take place before a 
reformed military commission.
  I believe that such commissions are the appropriate venue for this 
proceeding. They are

[[Page 6076]]

modeled on the federal civilian criminal justice system. They protect 
the rights of the accused. They respect the rule of law. They reflect 
our core values as Americans. They are transparent. In short, they 
provide an instrument that is fair, principled, accountable, and 
effective, one that satisfies the imperative of justice rather than the 
thirst for revenge.
  This confidence is underscored by the fact that Brig. Gen. Mark 
Martins is the chief prosecutor of the military commissions at 
Guantanamo Bay. Gen. Martins is a lawyer of tremendous skill, and a man 
of great integrity, character, and judgment. Reflecting his commitment 
to this case, he recently declined promotion in order to see these 
matters through to their conclusion. As the war against terrorism moves 
to the legal arena, we are indeed fortunate that Gen. Martins is 
leading the effort to ensure that justice is fairly dispensed to those 
charged with the horrific acts of 9/11.
  Recently, Mr. Speaker, Gen. Martins and the reformed military 
commission were the subjects of a news report from National Public 
Radio. With your permission, I would like to include the text of that 
report in my remarks and urge that my colleagues take a moment to read 
this article and learn more about the man that Gen. David Petraeus 
described as ``one of those rare individuals who always seems to end up 
in the toughest assignments and always performs exceedingly well in 
them.''

            A Prosecutor Makes The Case For Military Trials

                        (By Dina Temple-Raston)

       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 alRahim 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.

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