Brigadier General Mark Martins, the Chief Prosecutor for Military Commissions at DoD, spoke at The Institute of World Politics on April 26, 2012.
IWP founder and president Dr. John Lenczowski introduced General Martins. Dr. Lenczowski commented that military tribunals – primarily used to try terrorists, insurgents, and others that break the laws of war – have struggled to gain legitimacy.
General Martins began with an anecdote. In an early assignment as platoon leader, he was working with a much more experienced Sergeant First Class. One night, while on a field training exercise, the Sergeant woke up then-Lieutenant Martins and asked what the sky told him. Martins said that he saw a beautiful sky full of stars, which showed him that God’s creation was vast, that there were thousands of stars and planets in the universe, and that the weather was good for more training tomorrow. Martins then asked the Sergeant what he thought the clear sky meant, and the veteran NCO said “It means someone took our tent.” General Martins joked that that warned him against setting out to “be profound,” and he proceeded with a very down-to-earth description of military commissions.
General Martins gave an overview of many of the legal protections in a military commission, analogous in most areas to those of federal civilian courts. The accused is presumed innocent and has right to counsel, the right against self-incrimination (including statements made under torture), the right to see all evidence against him, the right to cross-examine government witnesses, the right call his own witnesses, as well as numerous other protections. General Martins did, however, say that the leeway for inclusion of hearsay evidence is broader in a military commission. This is mainly due to the operational difficulties of trying someone for a war crime: for example, the crime scene may or may not be available to be investigated. The Congress’s 2009 act narrowed the aperture for hearsay evidence, but it is still broader then that of a civilian court. Additionally, military commissions must deal with the issue of using classified information. General Martins pointed out the Classified Information Procedures Act, also used in federal courts, gave judges several options for balancing the accused’s rights to challenge evidence with the need to preserve the security of certain information. For example, a judge can pass on a summary of the incriminating parts of the information without mentioning the sources and means used to obtain it.
General Martins then broke down the elements of military commissions. Again, they were largely analogous to, but not exactly the same as, a civilian court system. Initiating many aspects of the system are prosecutors, who need to decide whom to charge and what charges to bring and who are governed by a “public prosecutor” ethic, which requires them not to seek to win at all costs but to protect the public interest and to do justice. There is also the Convening Authority, which functions similarly to a grand jury in that it reviews the charges, refers them to the tribunal, and selects the jurors. The jury, selected from military officers, has the function of an impartial fact-finder. There is also the judge himself, who is an experienced attorney, and typically has a military rank of an Army, Air Force, or Marine Corps Colonel or Navy Captain. While not a presidentially nominate, Senate-confirmed, tenured judge under Article III of the Constitution, these judges have already demonstrated repeatedly that they are independent and protected from improper influences.
General Martins turned to criticisms of military tribunals, which he summarized as five “uns”: unsettled, unfair, unnecessary, unknown, and unbounded. He felt that Congressional acts, court cases, and executive action have already largely dealt with these issues, and to toss military commissions aside would be his ‘sixth un:’ unwise.
Addressing the concern that military commissions are unsettled and always changing, General Martins pointed out that the commissions have a large body of precedent in the law on which to draw. Some might also criticize military commissions as unfair. General Martins argued that the latest reforms will produce fair trials, through the law-governed actions of responsible and independent people within an adversarial system.
General Martins then turned to a common criticism of military commissions: that they are unnecessary, and anything they do, a civilian court could do just as well. Martins pointed out that the commissions have a specialized role in the sort of crimes they try, specifically, violations of the laws of war. Commissions only try “unprivileged belligerents” and do not try protected combatants such as prisoners of war. Perhaps most critically, these commissions need to operate in the context of ongoing hostilities. Certain cases and legal norms (for example, Miranda rights) would be very hard to apply in this context. General Martins also added that it seems foolish to take a legal tool completely off the table.
Military commissions have also been criticized for being “unknown,” i.e., secretive and hidden. Now, however, court proceedings are transmitted by closed circuit television to certain locations in the continental United States via closed circuit television. These “extensions of the courtroom” allow people to observe trials in progress. The prompt posting on the military commissions website of legal motions, briefs, judicial rulings, and verbatim transcripts of proceedings also has improved the transparency of the proceedings.
Finally, General Martins addressed the issue that the commissions are “unbounded” and would dilute the role of the military and the civilian courts. He said that the military doesn’t lobby for missions, but it does perform them with integrity and a high degree of professionalism. The commissions are intended to help the United States implement the rule of law.
Concluding, General Martins said that he felt that military commissions as currently implemented have been reformed and vindicated by all three branches of government, and are an important tool for the United States.
– Article by Travis Rumans