Chief Prosecutor Brig. Gen. Mark Martins wants to bolster support for the… (Jim Watson/AFP/Getty Images )
When the biggest terrorism trial in U.S. history resumes this weekend at Guantanamo Bay, Cuba, Khalid Sheik Mohammed will retake his place at the defense table, the alpha dog among the five defendants accused of orchestrating the Sept. 11, 2001, attacks.
Across the courtroom from Mohammed, facing him for the first time, will stand the tall, one-star general the Pentagon has entrusted with not only securing a death penalty conviction but also convincing a skeptical world that a military commission can deliver a fair trial.
In 2009, the Obama administration, working with Congress, modified military commissions in an effort to offer more due process to defendants. But more than a decade after the system was originally set up under George W. Bush, much of the human rights community continues to lambaste it as a sham — one that should not supplant federal criminal trials for terrorism suspects.
Now Army Brig. Gen. Mark Martins, who will be the lead trial prosecutor in the Sept. 11 case, wants to bolster support for the modified process, and he’s in the fight of his career.
“If observers will withhold judgment for a time, the system they see will prove itself deserving of public confidence,” Martins said last month in a speech at his alma mater, Harvard Law School.
The address, which Martins delivered in full dress uniform, was the third in a series of appeals he has made to the legal community since becoming chief military prosecutor in October. Speaking in the particular language of the law and drawing on history and precedent, Martins has been urging the country’s lawyers — and by extension the larger public — to reexamine what he knows is a deeply ingrained belief that the tribunals at Guantanamo can provide only second-class justice.
The hope, proponents of reformed military commissions say, is that the public will come to see the system as one that provides defendants with the resources to mount a robust defense — including expert counsel — while barring the use of evidence tainted by torture or abuse and treating classified information in much the same way as it is handled in federal court.
“Mark understands the need for public legitimation, and he’s definitely making inroads,” said Jack Goldsmith, a law professor at Harvard who was a senior Justice Department official during the Bush administration. “He’s given [commissions] the appearance and the reality of more transparency.”
Critics of the system acknowledge that he has brought a new willingness to engage with detractors and a commitment to opening up the proceedings. They are, for instance, now screened for journalists and the public via closed-circuit television at Fort Meade in Maryland.
“He has the power to get things done, and that’s a change,” said a military defense lawyer, who spoke on the condition of anonymity to discuss a superior officer. “If he says he will do something, it gets done.”
Martins takes to a broader stage to make his case on Saturday, when Mohammed and his co-defendants will be arraigned at Guantanamo and could indicate whether they plan to defend themselves.
Attorneys for the five defendants say their preparations for trial have been “crippled” by government interference with attorney-client communications. They also complain that they have been unable to obtain some classified evidence and do not have enough Arabic translators and investigators.
“The odds continue to be silently and deliberately stacked against a fair process,” Navy Cmdr. Walter Ruiz, who represents one of the five men, Mustafa al-Hawsawi, said in a statement this week. “These men are represented on paper only, not in substance.”
Andrea Prasow, senior counterterrorism counsel at Human Rights Watch, said she worked with Martins on detention issues in Afghanistan and found him to be “really interested in hearing our comments.” And he oversaw improvements in the detention system at Bagram air base in Afghanistan, she said.
But Prasow insists that the justice system at Guantanamo is fundamentally flawed and cannot be salvaged by any one individual, no matter how well-intentioned. Federal court simply provides greater due process, she said, adding that any verdict that emerges from a military commission will never have the same legitimacy as one in a civilian criminal proceeding.
Prasow said commission proceedings could allow the admission of intelligence or information whose exact source is unknown — and whose origin the government would not have to divulge — leaving open the possibility that some of it was obtained through torture. She also said the commissions appear designed to hide the history of the CIA’s secret overseas prisons and that defendants might not be allowed to testify publicly about any mistreatment.