Chief Guantánamo Prosecutor Retiring Earlier than Sept. 11 Trial Begins

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WASHINGTON – The army general who led a decade of war crimes charges in Guantánamo Bay, Cuba, is retiring and turning the trial of the five men charged with conspiracy in the September 11, 2001 attacks on a not yet elected successor.

Brig. General Mark S. Martins of the Army served as chief prosecutor for military commissions across the Obama and Trump administrations.

His decision to step down came as a surprise as he had received an extension until January 1, 2023. Instead, he will retire on September 30th, according to a statement from a public prosecutor’s office, Karen V. Loftus, to the families of the nearly 3,000 people killed in the 9/11 attacks.

General Martins, a graduate of Harvard Law School at West Point, had served as the public face of the military commissions for many years. During his early years in office, he ran a public speaking campaign to promote the hybrid form of justice established by the Bush administration after the invasion of Afghanistan.

The Obama administration made some changes to the system and decided to pursue the 9/11 case against Khalid Shaikh Mohammed and four accused accomplices in Guantánamo rather than in federal court. A death penalty case that has sunk in pre-trial proceedings since the indictment in May 2011 as the sites deal, among other things, with issues relating to the torture of the defendants in CIA prisons prior to their 2006 transfer to Guantánamo Bay.

Although no military judge is currently assigned to the case, Pentagon officials are preparing for its first hearings since February 2020, due to take place in the first two weeks of September, coinciding with the 20th anniversary of the attack.

General Martins filed his annuity papers Wednesday after repeatedly arguing with lawyers from the Biden administration in Guantánamo court over positions of his office on applicable international law and the Convention against Torture, according to senior government officials who knew about the disputes. General Martins did not respond to a request for comment.

A major point of contention was General Martins’ recent decision to give a testimony to the CIA while tortured by a man accused of orchestrating the bombing of the USS Cole in 2000 while he was being tortured to speak to the military judge, who presided over this case to take a stand is also a death sentence. Defense lawyers for prisoner Abd al-Rahim al-Nashiri from Saudi Arabia are appealing the admissibility of this evidence.

On the same day that General Martins opted to retire, he filed a brief asking the U.S. Court of Justice to review the Military Commission for additional time to respond to the appeal.

“Has he been asked to resign or has he resigned in protest?” Said Navy Capt. Brian L. Mizer, Mr. Nashiri’s senior military defender. “I dont know.”

Ms. Loftus said General Martins had chosen to retire “in the best interests of the ongoing cases”. Military commission hearings are slated to resume next week for the first time since the pandemic began, in a case involving an Iraqi man accused of commanding armed forces that committed war crimes in Afghanistan in 2003 and 2004.

Ms. Loftus called the point in time “an ideal window for identifying a successor”, since proceedings “after the pandemic-related break are finally in sight for all of our cases”.

General Martins made an impressive figure in court with a height of six feet and a chest full of medals on his blue army uniform. As a former Rhodes Fellow, he had made it an important part of his job to meet and brief the families of the victims and to connect with some of them through social opportunities in Guantánamo Bay. In an effort to bring the 9/11 case to court, he had repeatedly received extensions of his term.

“My first thought is that only the defendants and family members will be left,” said Joel Shapiro, whose wife Sareve Dukat was killed in the World Trade Center and has since worked as a guide at the 9/11 Memorial & Museum in New York. “Almost everyone else involved in this case took the opportunity to get on with their lives.”

“I was shocked that Mark was stepping down,” said Adele Welty, whose firefighter son Timothy was killed on September 11th. “I thought he was very committed to pulling it off. But who can blame him? The whole Guantánamo enterprise is almost comical in its ridiculous turns – judge after judge step down, and now General Martins. “

Chief Defense Counsel, Brig. General John G. Baker of the Marines, will leave his post on November 1st. The process of replacing him with a new one-star military attorney – to put him on a par with General Martins – was already underway as a potential candidate.

Defense officials said a panel would likely be put together to select a new chief prosecutor who could match the rank of Army Colonel rather than a one-star general. In the meantime, Ms. Loftus said, General Martins’ civilian deputy, Michael J. O’Sullivan, will serve as assistant chief defender.