At Odds with Biden Administration’s Concern Over Use of Statements Obtained by Torture, Chief Guantánamo Prosecutor Retires

After clash­ing with Biden admin­is­tra­tion offi­cials over the pro­pri­ety of using state­ments obtained through tor­ture from Guantánamo detainees, Army Brigadier General Mark S. Martins (pic­tured), the chief pros­e­cu­tor in the Guantánamo Military Commissions tri­als, will retire from the mil­i­tary on September 30, 2021. Martins, who had served as the com­mis­sions’ chief pros­e­cu­tor through­out the Obama and Trump admin­is­tra­tions, abrupt­ly sub­mit­ted papers on July 7 pro­vid­ing notice of his ear­ly retire­ment. Gen. Martins had recent­ly sought and obtained an exten­sion of his Guantánamo assign­ment until January 1, 2023. 

Citing ​“senior gov­ern­ment offi­cials with knowl­edge of the dis­putes,” the New York Times report­ed on July 9 that Martins had ​“repeat­ed­ly butt[ed] heads with Biden admin­is­tra­tion lawyers over posi­tions his office had tak­en on the applic­a­ble inter­na­tion­al law and the Convention Against Torture at the Guantánamo court.” The Biden admin­is­tra­tion opposed the use of state­ments obtained by torture.

During the Trump admin­is­tra­tion, Martins had tak­en the posi­tion that the due process clause of the U.S. Constitution did not apply to Guantánamo detainees, a posi­tion that rais­es sig­nif­i­cant con­sti­tu­tion­al and human rights issues. The Biden Justice Department has since backed off Martins’ view, though not overt­ly repu­di­at­ing it. In briefs filed by civil­ian lawyers July 9 in the case of Abdulsalam al-Hela — a Yemeni detainee who has been incar­cer­at­ed at Guantánamo since 2004 with­out being charged with any offense — the Justice Department said it took no posi­tion on the issue.

Martins also filed pre­tri­al plead­ings using state­ments obtained by tor­ture from detainee Abd al-Rahim al-Nashiri, who is being cap­i­tal­ly pros­e­cut­ed as the alleged mas­ter­mind of the USS Cole bomb­ing that killed 17 U.S. sailors in 2000. Although a mil­i­tary judge ruled that such state­ments were admis­si­ble in pre­tri­al pro­ceed­ings, under pres­sure from admin­is­tra­tion offi­cials, mil­i­tary pros­e­cu­tors filed a motion on July 16 to remove those state­ments from the record. 

“Was he asked to resign or did he quit in protest?,” Nashiri’s lead coun­sel Navy Captain Brian L. Mizer said to The Times. ​“I don’t know.” But, Mizer added, “[r]emoving the sen­tences cit­ing evi­dence obtained by tor­ture, but not [with­draw­ing] their motion say­ing the judge is free to use tor­ture pre­tri­al, or the judge’s rul­ing say­ing that it is law­ful to do so, accomplishes little.”

Martins’ retire­ment adds a new lay­er of uncer­tain­ty to the already tumul­tuous Guantánamo pro­ceed­ings. The gen­er­al was lead pros­e­cu­tor in the long-delayed death-penal­ty tri­al of alleged 9/​11 plan­ner Khalid Shaikh Mohammed and four oth­er Guantánamo detainees alleged to have been his accom­plices. Because of oth­er retire­ments, no mil­i­tary judge has yet to be assigned to hear the case, but Guantánamo pros­e­cu­tors intend­ed to resume hear­ings against the back­drop of the 20^th anniver­sary of the attack. No one has yet been named to suc­ceed Martins as chief prosecutor.

In April 2020, Air Force Colonel W. Shane Cohen, the pri­or mil­i­tary com­mis­sion judge in the 9/​11 case, retired from active ser­vice. He was the third judge since 2012 to pre­side over the case. In September 2018, Air Force Colonel Shelley Schools announced her retire­ment, just one month after being assigned as the third judge to pre­side over the USS Cole mil­i­tary tri­bunal. In April 2019, the U.S. Court of Appeals for the District of Columbia Circuit vacat­ed more than two years of pre­tri­al deci­sions, includ­ing more than 450 writ­ten orders, in the Cole pros­e­cu­tion because of an undis­closed con­flict of inter­est by her pre­de­ces­sor as mil­i­tary com­mis­sion judge, Air Force Colonel Vance Spath. Spath had retired after months of frus­tra­tion over devel­op­ments in Nashiri’s case fol­low­ing the res­ig­na­tion of Nashiri’s entire civil­ian defense team in October 2017 in protest of the government’s ille­gal eaves­drop­ping on their legal meetings.

“I was shocked that [Gen. Martins] is step­ping down,” said Adele Welty, whose son was killed on 9/​11. ​“I thought he was very com­mit­ted to see­ing it through. But who can blame him? The entire enter­prise in Guantánamo is almost com­i­cal in its ridicu­lous turns of events — judge after judge quit­ting, and now General Martins.”

Attorney General Merrick Garland has recused him­self from involve­ment in pros­e­cu­to­r­i­al deci­sions relat­ed to the Guantánamo cas­es because he pre­vi­ous­ly par­tic­i­pat­ed in some of the cas­es as a District of Columbia fed­er­al appeals court judge.