Guantanamo prosecutor retires as 9/11 trial remains elusive

An Army general who spent the past decade leading an oft-stalled effort to prosecute five men held at the Guantanamo Bay detention center for the Sept. 11 terrorist attacks is retiring from the military, leaving his post as chief prosecutor as a trial remains elusive

Guantanamo Sept 11 Trial (Copyright 2021 The Associated Press. All rights reserved.)

The Army general who spent the past decade leading an oft-stalled effort to prosecute five men held at the Guantanamo Bay detention center for the Sept. 11 terrorist attacks is retiring from the military, leaving his post as chief prosecutor as a trial remains elusive.

The retirement of Brig. Gen. Mark Martins was disclosed by a civilian employee of the Defense Department in an email sent late Thursday to relatives of people killed in the Sept. 11, 2001, attacks and wasn’t publicly announced by the Pentagon or the Office of Military Commissions, which oversees the tribunals.

According to a copy obtained by The Associated Press, Martins decided to leave now because 10 years is “about the longest any military officer can serve in a single assignment.” Also, the scheduled resumption of pretrial hearings after more than year-long hiatus due to the pandemic, meant it was “time to transition to new leadership” of the tribunals for prisoners held at the U.S. base at Guantanamo Bay, Cuba.

“With the actual trial dates not yet set, there is an ideal window to identify a successor and get her/him settled in before the merits phase actually begins,” said the email from Karen Loftus, director of the prosecution’s Victim Witness Assistance Program.

Martins, a Harvard Law School classmate of former President Barack Obama started as a vocal defender of the widely criticized military tribunals, or commissions, process that combines elements of civilian and military law. He has since stopped publicly speaking about proceedings mired in legal challenges and which could be shut down entirely if President Joe Biden achieves his intention to close the Guantanamo Bay detention center.

Martins did not respond Friday to messages and the Office of Military Commissions declined comment, issuing only a statement that said a judge would decide whether upcoming pretrial hearings would need to be rescheduled. His retirement was first reported by The New York Times.

Michael O’Sullivan, a deputy chief prosecutor, will assume the position of acting chief, according to the email.

Taking up his duties as chief prosecutor in 2011, Martins predicted that the revamped commissions for the five men charged in the Sept. 11 attacks would be more transparent and fair to defendants than a previous effort. That also applied to other terrorism defendants at the base, including a Saudi prisoner charged in the October 2000 attack on the USS Cole.

Obama sought to close the Guantanamo detention center but was blocked by Congress which passed legislation barring the transfer of prisoners to the U.S. for any reason — including prosecution or imprisonment.

After backing off a plan to try 9/11 defendants in federal court in New York, the Obama administration worked with Congress on an overhaul of the tribunals. Changes included restrictions on the use of evidence gained through coercion or torture and improved viewing access for the media and select observers.

“I believe that thoughtful people looking at this process will notice the changes,” Martins told The Associated Press in an interview shortly after taking up the post. “I wouldn’t be in this job if I wasn’t convinced that individuals could be given a full and fair trial under law and that the outcome will be both legitimate and ultimately perceived to be legitimate.”

Critics said the changes didn't go nearly far enough to ensure a fair trial for men such as the 9/11 defendants, who were held in clandestine CIA prisons for several years and subjected to what was then euphemistically called “enhanced interrogation" and is now considered torture.

In part, the prosecution's case in the 9/11 attacks rests on statements that the defendants — who include Khalid Shaikh Mohammad, the self-described mastermind of the Sept. 11 attacks — gave to the FBI after they were transferred by the CIA to the military at Guantanamo in September 2006.

Still, legal challenges largely revolving around what evidence can be used at an eventual trial have kept the case bogged down. The effort has also been beset by the logistical difficulty of trying to hold proceedings in a specially designed courtroom on the isolated U.S base.

There have been more than 40 rounds of pretrial hearings since the May 2012 arraignment and the estimated start date for what would likely be a lengthy trial before a jury of military officers has been repeatedly put off.

The Biden administration has said it intends to close Guantanamo after a review of operations, but has not publicly released details about when or how that will happen.