Lawyer Limelight – Guantanamo: Brig. Gen. Mark Martins

Brig. Gen. Mark Martins spoke at a Feb. 26 Guantanamo Bay press conference and took additional questions from Lawdragon the next morning. Photo provided by Joint Task Force-Guantanamo.

The chief prosecutor of the military commissions acknowledged to reporters after pretrial hearings concluded in February that he “wasn’t very popular” with lawyers for the five defendants charged with planning the Sept. 11 terrorist attacks. At the press conference, Army Brigadier General Mark Martins was referring to a specific issue that a casual spectator might have missed during the proceedings – the government’s position that not every member of each defense team has the right to be briefed on certain top-secret programs – but it was clear from the two-week session that his team's lack of popularity among the defense extended to other areas.

Among those litigated during the Feb. 16-26 session is what evidence the defense is entitled to receive about how their clients were treated at CIA black sites before arriving at Guantanamo Bay in 2006. Defense lawyers want more than the government prefers to hand over, and the judge, Army Col. James Pohl, will be weighing competing arguments on these and other discovery disputes in the months ahead.

Of course, Martins knew that being the top prosecutor of the controversial military commissions was not for the thin-skinned when the assignment came his way in 2011, while he was serving in Afghanistan. Among his many past assignments, he had co-led a task force on detention policies and helped draft the 2009 Military Commissions Act, which replaced earlier legislation from the Bush administration. Martins explained in an April 2012 speech at Harvard Law School that he had requested the chief prosecutor’s role to be his last assignment in the military – and that he not be considered for a new job or a promotion thereafter – for the sake of continuity and to avoid any “suspicion of self-advancing motives.” He was scheduled to retire in 2014 before he received a three-year extension.

Martins graduated first in his class at West Point in 1983; spent time in Oxford as a Rhodes scholar; and served in the infantry, becoming a Judge Advocate in 1990, when he received his J.D. from Harvard Law. Citing a consistently distinguished career as a soldier and lawyer, the school awarded him its highest honor, the Medal of Freedom, in May 2011, a handful of months before his assignment to the commissions.

Martins holds a press conference at the conclusion of each hearing session, and also meets with reporters before the start of each session to discuss what might play out in court. This last time, he may have undersold the session by predicting the discovery arguments would be too “in the weeds” to be “gripping.” (Martins and defense lawyers are also approachable during breaks in proceedings to the extent time allows.)

As the February hearings came to a close, Martins agreed to take additional questions from Lawdragon. The interview took place at the air terminal on Guantanamo Bay on the morning of Feb. 27, shortly before the return flight to Joint Base Andrews, in Maryland. Court personnel, victim family members, media and other observers travel together on the same chartered flights for the commission trips. [Browse Lawdragon’s Guantanamo coverage.]

Lawdragon: How do you feel about the past two weeks? It’s been said that having arguments over discovery is sort of a new phase in the case. Do you feel a corner has been turned?

Brig. Gen. Mark Martins: Once discovery is done, we'll be able to seriously set trial milestones, leading to a selection of a jury panel of officers. We're in a better place than we were two weeks ago. We’ve gotten substantial work done, a lot of important litigation accomplished.

LD: While we were here this time, the President presented his plan to Congress to close the Guantanamo detention facility. Is it your view – and I think the President indicated this in terms of who would be relocated to the states – that the commissions can take place anywhere?

BGMM: Military commissions, like courts-martial, can be convened wherever you can securely hold a trial. That can be many places.

LD: You seem to have high regard for the people at Joint Task Force-Guantanamo who coordinate with the commissions system – you always make sure to praise them in press situations. Why is that?

BGMM: Soldiers, Sailors, Airmen, Marines, Coastguardsmen – they really do everything. When it comes down to it, you've got to have service members who are willing to do the unsung jobs, respond to redirections at the last minute – those kind of things. Having grown up in the infantry and served with a lot of 11-Bravos [Military Occupational Specialty (MOS) 11B in the Army – the Infantry], I've never lost an appreciation of those who ultimately carry out the mission.

LD: While here, you also begin your press statements with a story of a victim family member. And during court breaks you’ll pop into the media gallery to say “hi” and shake hands with the victim family members who have travelled here. Can you talk about the relationship with them – does that affect your approach to the case in any way?

BGMM: For prosecutors, reaching out to victims and family members of the fallen is a labor we undertake with our hearts and not purely out of legal obligation. But it is also a formal duty, and very much part of the representation of the United States. Victim and Witness Assistance is formalized in statutes and rules, and we thus have an obligation to seek out those who have been traumatized, victimized, and wounded, and to figure out the best ways to give them information about the case.

If you have wounded individuals who were at the scene, they also can be, in some cases, actual fact witnesses as well. Securing witness testimony, as with all evidence, is a prosecutor’s responsibility. We also must implement Victim-Witness legislation that is intended by Congress to ensure that the victims of crime are not forgotten by what is a necessarily analytical, fact-based, and empirical process that might otherwise come across as bureaucratic and heartless to the very people we’re sworn to protect. It’s impossible not to feel compassion for these victim family members who come to Guantanamo to observe, so it comes naturally to me and to all of us on our team to reach out to them whenever we can.

LD: Some of the family members have said to the media that the repeated reference to the number killed during the attacks makes it feel like those who died are just part of a number – and they come to Guantanamo to make sure the process is individualized. Do you see that?

BGMM: Again and again, we see, not surprisingly, John, that they don't want their loved one to be forgotten. They want that individual presence to remain alive. While here in Guantanamo, they want to represent those who would otherwise be silenced by cowards who use terror.

LD: Can you talk a little bit about the lead-up to this job – you were involved in a task force related to Guantanamo policies, is that right?

BGMM: Sure. In January 2009, the President established three interagency task forces in regard to Guantanamo and detention policy more generally. I was appointed to be the day-to-day Department of Defense representative for Secretary [Robert] Gates and for [the then-General Counsel of the DOD] Jeh Johnson, on one of the three task forces, specifically the one assigned to develop and make recommendations on detention policy.

Those of us on the Detention Policy Task Force worked closely with the Guantanamo Review Task Force, which examined the files of the approximately 250 or so then-remaining detainees, and with the Interrogation Policy Task Force, which focused, as its name suggests, upon interrogation policy. [As of this posting, the number of detainees is down to 91, ten of whom are involved in commission proceedings.]

The Detention Policy Task Force had a forward-looking focus. We asked, “What are the best policies, from arrest or capture, to detention under various legal authorities by our forces or those of allies, following through to trial or other disposition. Then, where and how do we detain the person ultimately if he’s been tried and sentenced?” In other words, we examined the life cycle of the detention of an individual who comes into our custody because he was involved with international terrorism and hostilities.

LD: How long did that last?

BGMM: For me it was an intensive 10-month period. And I knew from early on that I would be on the Task Force for less than a year because only months after reporting to the Department of Justice building where all of the Task Forces were required by Executive Order to convene, I was promoted, and then essentially drafted, to go to Afghanistan to command a new task force there.

I went to Afghanistan, in part, to help implement the detention policy that we had developed and recommended. At this point, though, I thought that my involvement in traditional judge advocate legal work was likely done. My two years in command in Afghanistan drew upon legal training, but the assignment was operational. Then toward the end of the two years – in mid-2011 – Jeh Johnson called to inform me that the term of the previous chief prosecutor was coming to an end.

LD: What were you doing in Afghanistan when you got the call?

BGMM: I had been interim commander of Joint Task Force 435, the United States organization responsible for law of war detention. Then, I commanded a new unit established by Secretary Gates in September of 2010 called the Rule of Law Field Force. It later became the NATO Rule of Law Field Support Mission when some 50 NATO and ISAF [International Security Assistance Force] countries voted at a North Atlantic Council meeting to make it a NATO-wide mission as well.

Given how potentially divisive and controversial western military involvement in rule of law development can be, it was no small thing for such diverse nations to agree that putting military capabilities in support of Afghan-led law enforcement, judicial, corrections, and civil dispute resolution support was a wise move. In the end, these nations, led by Afghanistan itself, agreed that military logistics and security over the near term were essential to transitioning rule-of-law functions to Afghan control as soon as possible and to denying Afghanistan as a safe haven for the Taliban and the likes of al Qaeda.

The command benefited from formal Afghan government approval, as well as from unanimous NATO and ISAF endorsement. We worked in 14 provinces and some 60 districts where there had been a vacuum in government law enforcement and dispute resolution. We found that if we could help the Afghans populate local government ranks with a few police investigators, prosecutors, judges, and trained corrections personnel – not perfection , but just a decent presence in positions of authority – then the Taliban would poll in the low single digits.

It was a tremendous mission and a great honor to lead it. We were taking Afghan prosecutors, Afghan defense counsel, and Afghan judges and others, giving them modest training, security, and support, and getting them set up. They were prepared to work and to sacrifice for their country.

LD: Given the criticism of the military commissions up to that time, what was your thinking when you got the call from Jeh Johnson?

BGMM: When Jeh Johnson called me up, although it was unexpected, I had to acknowledge that my training and previous assignments made me eligible. I had been a prosecutor. I had been in armed conflict. I understood the law of war crimes, having taught the discipline at the Judge Advocate General school in the 1990s. And then it was true that I had done the detention policy work. It wasn't one of those pre-assignment situations in which I could say, “This isn't a good fit.” To be clear, a military assignment is not something I would ever actually resist, as the needs of country always come first, but this was an instance in which my past service and qualifications had led Mr. Johnson to call on me.

Every duty assignment in a military uniform of the United States is a privilege. Though I did not foresee the job, it has enabled me to serve alongside some of the most talented and determined public servants I have ever known. It often works out that way. I have never had an assignment I’ve regretted.

LD: As the new leader coming in, you could have built your team a couple of different ways. You decided to keep on people who have been with the case for a while, such as Ed Ryan and Bob Swann. What was your thinking in constructing your team?

BGMM: We are fortunate as a country that experienced and talented prosecutors with federal court as well as court-martial experience have committed to staying on. Different leaders assume leadership differently. My approach over the previous three decades had not been to dive into a diverse organization with a complex mission and immediately start making dramatic changes. Over time, a pattern of carefully weighed decisions and efforts to lead by example make their imprint. Even as we are standing on the shoulders of all who came before us, we have done many things together to build a team over the past four years that is as capable and as cohesive as ever.

In addition to prosecuting trial counsel, we have paralegal specialists, analysts, and others who also are making critical contributions, and their families are making sacrifices. The bottom line is that we have a great blend of skills and experience and dynamism.

LD: In talking about your team and traveling for these court sessions, is stamina a problem? It seems exhausting from the outside.

BGMM: You have to pace yourself, and learn how to be patient and keep engaged. We're going to do this for however long it takes. Another benefit of meeting with family members is that many of them take a long view too. They inspire us.

LD: You seem to be intellectually gratified by the job when speaking about certain legal subjects. Can you talk a little bit about what is satisfying about this?

BGMM: Remaining open to new information and to always learning is, I believe, a prerequisite for this sort of trial litigation. One thing I personally find reassuring – I wouldn’t refer to it as “satisfying,” because those who know me well know that I’m not satisfied as long as a mission remains unfinished – is that our laws always provide guidance through difficult terrain. Trial work is filled with small and large tactical surprises that you deal with, but faith that the process will get to the truth and will sort things out is rewarded in the end.

Our adversarial process, when handling difficult and divisive issues, eventually gets society to a better place.

Gratification is something different for me. It has been gratifying to gain a measure of justice for those who were killed or had their lives wrecked by the terrorism of al Qaeda’s self-named “boats operation” in the Arabian peninsula in the years before and immediately after September 11^th and of al Qaeda’s Southeast Asian affiliate, Jemaah Islamiya – this came with the convictions of Ahmed al Darbi and Majid Khan. But there is so much more work to be done to speak any more at this point of gratification.

LD: You were in the Army and then decided to go to law school – how did you develop an interest in doing that?

BGMM: I was interested in law at West Point and while studying PPE [politics, philosophy, and economics] at Oxford. That interest caused me to explore the Army's funded legal program.

I suppose I had in the back of my mind for several years that I might like to remain in the military and also be a judge advocate. I benefited from role models in the 82nd Airborne Division who were former engineer officers and infantry officers and who had become lawyers. I decided to take that path. Congress funds a statutory program that takes 10 to 25 lawyers in each service each year and sends them to law school. We do an academic tour of duty for three years and then bring to the legal ranks our experiences of having been on the line and with troops. That blend of practical experience and law school brought by FLEPs [Funded Legal Education Program participants], along with the diverse backgrounds of wonderfully talented attorneys who join the military straight out of law school, makes for a strong Judge Advocate General branch in each of the services.

LD: This commission has gone on for some time. Do you ever consider leaving, moving on to something else, saying, “At least I've gotten it to this point”?

BGMM: We’re all simply putting one foot in front of the other at this point, John. With the support of an amazing immediate and extended family, I've decided that I will be available to stay as long as necessary.

Nobody in any business, and certainly not this one, is indispensable, but there's value in continuity. Also, departures at awkward times and with much unfinished business can be disruptive. I’m committed to the mission, and pursuit of monetary wealth or leisure have never motivated me. That said, I will be perfectly willing to step aside if at the end of 2017 – when the current term of appointment is up – it is time for me to go. But I’m committed to the mission.

LD: One last topic for our readers who may be thinking about Guantanamo possibly closing, and that we have our courts-martial and also the federal courts. Can you talk about why you believe it is important to have the military commissions as an option for some cases?

BGMM: Our legal system is challenged by situations in which individuals join up with irregular armed forces that operate from behind international boundaries and in ungoverned terrain overseas. These “unprivileged belligerents,” as they are termed under the law of war and in the Military Commissions Act, scorn longstanding norms that are intended to help make armed conflict – as violent and as punishing as it is to civilian populations and persons rendered “out of combat” – more humane and to decrease unnecessary suffering. These unprivileged belligerents are members of groups that intentionally seek to blend in among us. They use terror and mass murder of civilians to gain power or to attempt to achieve twisted political objectives.

Our revered justice system – including federal civilian courts – does extraordinary service every day for our country, under our Constitution. But gathering and weighing evidence from zones of armed conflict and amidst uncooperative regimes is a chronic challenge to legal institutions. We simply do not have a strong record in bringing to justice – through courtroom trials – members of al Qaeda who are operating overseas. Note that I am speaking here of process, and not of any specific case. Please note also, John, that charges before a military commission are only allegations, and any accused is presumed innocent unless and until he is proven guilty by the prosecution beyond a reasonable doubt.

There may exist voluntary but un-Mirandized statements that were taken properly and by special agents who were acting lawfully, and yet when the case comes to trial, those who made the statements cannot be compelled to testify or are otherwise unavailable because they remain overseas. The Miranda and confrontation requirements in federal court are appropriate rules in domestic trials of alleged domestic criminals and terrorists. But such rules are not only unprecedented in situations of genuine hostilities; they are not wise in such situations. Justice is not advanced during an armed conflict when war crimes trials ignore the most important evidence of guilt.

We need all of the instruments of national power and authority to defeat al Qaeda and associated forces. Military commissions are designed to fill a narrow but important role in doing so. Even with the many challenges they have faced in the unique cases of Guantanamo detainees, the law continues to make military commissions available and to require us to ensure that they do justice and protect national security. No other system is legitimate in this instance because legislation enacted through the process demanded in our Constitution prohibits any other way of holding a criminal trial for specific, charged offenses.