Guantanamo’s detox man
By Hugo Dixon
If anybody can provide a measure of legitimacy to the trials of detainees in Guantanamo Bay, Brigadier General Mark Martins may be that person. Barack Obama will certainly be hoping so. Martins, who was on the Harvard Law Review with the president when they were students, has this week taken over as chief prosecutor for military commissions at a time when the highest-profile Guantanamo detainees are coming to trial. The first death penalty moved a step closer last week when a trial was ordered for Abd al-Rahim al Nashiri, who allegedly planned the bombing of USS Cole in 2000. The case of Khalid Sheikh Mohammed (KSM), the alleged mastermind of the 9/11 attacks, is likely to follow shortly afterwards, in what some people are dubbing America’s Nuremberg trial.
The new chief prosecutor is a mixture of brain and brawn. A Rhodes scholar at Oxford, Martins is also a six-foot three-inch fitness freak. David Petraeus, the U.S. commander of the surges in both Iraq and Afghanistan and now director of the Central Intelligence Agency, describes him as a “once in a generation officer.” Martins also has a track record of tackling difficult assignments.
Guantanamo has been plagued by controversy ever since it was used as a detention camp for alleged al Qaeda and Taliban prisoners in early 2002. Military commissions were established at about the same time to try some of the detainees. The Guantanamo-cum-military commissions process has, to many critics, seemed toxic not least because some detainees were subjected to waterboarding and other coercive techniques before they arrived there; many have been detained for long periods without trial; and the few who have been tried (so far it is only six) were put through a judicial system that didn’t offer the normal protections available in U.S. courts of law.
Martins only has his new job because Obama failed to close Guantanamo as he promised when he was running for office. The president’s initial plan was to release the detainees, transfer them to other countries or bring them to mainland America for trial in an ordinary federal court. But after Congress passed legislation banning him from using money from the military budget to move detainees to the mainland, the administration decided to try at least some at Guantanamo.
The role of chief prosecutor hasn’t been an easy one. Martins is the sixth person in the job in seven years. The first, Fred Borch, resigned after he was accused by three of his underlings of rigging the process so that the accused were sure to be convicted. The third chief prosecutor, Morris Davis, quit after alleging that his superior officer questioned his authority to exclude evidence obtained by waterboarding. “It’s like a football team,” says Davis. “If you’re on your sixth coach in seven years, it is an indication of a deeper problem.”
In a series of telephone interviews both from Kandahar, Afghanistan, (where he was finishing his previous post) and Long Island, New York (where he was on holiday with his wife, Kate, a former helicopter pilot) Martins accepted that Guantanamo has a toxic image for some. But he said he hoped to challenge that by showing how prosecutions work in practice, including through greater transparency.
Martins, aged 51, says he decided to go into the military because he was attracted to the outdoors, athleticism and physical vigor as well as the ethic of service. At one point, after visiting Haiti, he considered joining the Peace Corps. But, after talking to some friends of his father, who ran the army’s neurosurgery service, he went to the U.S. military academy at West Point, where he graduated top of his class.
After West Point, Martins got a Rhodes scholarship to study Philosophy, Politics and Economics at Balliol College, Oxford, where I first met him. We were tutorial partners in econometrics. Friends from those days remember him as driven. Neal Wolin, now deputy secretary at the U.S. Treasury, says he was “an extraordinary example of focus and discipline.” The two of them rowed in the Balliol Eight – “the tip of his oar handle came close to my back about 1,000 times a week”. At one point, the Eight wasn’t performing well so Martins took them off on a team-building exercise. Initially, some (especially the Brits) were reluctant to take part but “eventually everybody buckled to his will. He was almost irresistible.”
For his part, Martins credits Oxford with teaching him how to “stand in someone else’s shoes and try to construct the most powerful argument from that point of view before coming back to the original point of view and see if it can be sustained – and do it honestly.”
After securing a first-class degree, Martins went back to the army as platoon leader in the light airborne infantry before veering off the military track again and going to Harvard Law School. That’s where he came across Obama, when they were both on the Harvard Law Review.
Martins jokes that Obama had many of the attributes of a military man: he was competitive, smart, well spoken, fit and had a knack for finding common ground. “Little did I know that his entry level in the military would be commander in chief.”
It was after Harvard in 1990 that Martins’ long association with Petraeus began. The older man was a commander of the Rakkasans at Fort Campbell, Kentucky and Martins was his legal adviser. Petraeus, who’d heard the younger man was “extraordinary”, decided to give him a test. Knowing that Martins was going on leave the next day, he told him to produce a legal brief by the next morning. “It was on my desk at 5 a.m. — flawless.”
Petraeus tested Martins and his other men physically too. The maximum score in the standard army physical readiness test was 300. That wasn’t good enough for the commander, who developed his own extended scale with extra push-ups, sit-ups and pull-ups, and faster runs. Those who passed got the title “Iron Rakkasan.” Out of a total eligible population of 1,200 during a two-year period, only eight men got the title. One was Martins. “I met the standard myself, I might add,” says Petraeus.
The current CIA boss and new chief prosecutor have worked together on five assignments. One was in Iraq, where Martins was Petraeus’ legal adviser during the surge, supervising 700 legal personnel involved in everything from courts martial to procurement contracts. Martins says it is important to have so many lawyers because “being governed by law is what distinguishes an army from a mob.”
Petraeus also gave Martins the task of helping instill the rule of law in Iraq. A few years later, he had a similar job in Afghanistan. Martins admits it hasn’t worked perfectly: “Rule of law is mostly just a goal.” There are special problems like assassination of judges and witnesses. But he insists that “justice is a cherished notion in both Afghanistan and Iraq” and says the military has helped by providing a secure environment for trials.
In Afghanistan, Martins had another mission relevant to his new role: “detoxify the detention policies” at the notorious Bagram detention camp (a sort of Guantanamo East) where, among other things, two Afghans died brutal deaths in 2002, according to soldiers’ statements obtained by the New York Times. The detox regime involved moving detainees from old facilities to a new purpose-built one and increasing the transparency of the detainee review board.
Human rights groups such as Amnesty International still complain about the system because detainees are not allowed lawyers; they are only represented by military officers. But Martins argues that such a procedure is “consonant with the law of armed conflict” and that it is vital armies have the ability to detain the enemy in war, otherwise there will be an artificial incentive to kill them.
Prosecutor in chief
Now Martins has the task of detoxifying an even bigger problem: military commissions. Wolin, his Balliol rowing buddy who is also a trained lawyer, says the “whole path from Oxford and before has been the perfect training” for his new post.
Commissions have changed a lot in the past decade. There have been two Acts of Congress. The first in 2006, under President George W. Bush, aimed to put commissions on a proper legal footing after the U.S. Supreme Court said they violated the Geneva Conventions. The second, in 2009 during the Obama era, aimed to bring their practices more into line with those of a normal federal court, including banning evidence obtained by torture or cruel, inhuman or degrading treatment. Martins helped draft this Act.
Despite the changes, critics maintain that commissions are still fundamentally flawed. For example, Davis, the previous chief prosecutor, calls the changes to the 2009 Act “lipstick on a pig,” partly because it will still be easier to rely on hearsay in these trials than in federal courts.
Gabor Rona, International Legal Director for Human Rights First, criticizes some of the charges that the accused can face — such as “conspiracy” and “material support for terrorism” — on the grounds that they were only defined as war crimes under U.S. law after the alleged offenses were committed. He also argues that the commissions do not constitute independent courts because the judges and prosecutors are all military officers who ultimately come under the same command.
Meanwhile, Wells Dixon, a senior staff attorney at the Center for Constitutional Rights who represents detainees in Guantanamo, complains that the accused do not have the right to confront their accusers when they are unnamed intelligence agents; that evidence obtained by torture could still seep into the trials; and that parts of trials can be held in secret if the authorities deem that this could compromise national security. He says that holding a death penalty case like the Nashiri one even partly in secret would undermine its legitimacy.
Dixon also argues that commissions are plagued by “inter-agency conflict and bureaucratic paralysis” and that this is one reason why so few cases have been heard. The failure of either Bush or Obama to prosecute KSM is, he says, “an insult to everybody who died in 9/11” as well as everybody else who suffered the consequences of the subsequent U.S. military action.
Martins can only apply the law, not change it. He is also only one of the key people involved in commissions: the judge, jury, defense and the “convening authority” (which decides whether a case goes to trial) also play critical roles. But the Obama administration clearly sees him playing a special role. Jeh Johnson, the Pentagon general counsel, told the Weekly Standard that he wanted Martins for the post because he “brought the right sense of values to military commissions … I didn’t want somebody who was necessarily after the most convictions but rather was focused on making military commissions a credible and sustainable process.”
Martins has several tools he could use to achieve that. For example, he could decide to exclude evidence extracted by coercive means rather than waiting for it to be challenged in tribunal; he could avoid relying on evidence which has to be heard in secret; and he could bring to the commission only accusers who can be confronted by the accused. This would make the tribunals appear more like ordinary courts. He could also cut through the bureaucratic paralysis and get the big cases to trial.
The new chief prosecutor won’t say whether he will conduct trials in this way. But he admits the need to increase the legitimacy of the process and stresses that everyone must implement the new Act’s provisions on not allowing testimony obtained by torture.
Martins is also a great believer in transparency, highlighting two new measures announced last week to increase that. The first is that there will be near real-time transmissions of the trials’ proceedings to a venue in mainland America, whereas previously the press had to travel to Guantanamo to watch them. The second is a new website containing details on the cases, although the benefit of this initiative was undermined by the fact that it didn’t contain the defense documents in the Nashiri case containing allegations that he was tortured by the CIA.
Petraeus calls the chief prosecutor a “superstar.” But Martins is also up against his toughest challenge yet. His success or failure will to a great extent determine whether Obama can salvage something from the decade-long public relations wreck that is Guantanamo.
Edited by Martin Langfield, researched by Christine Murray. Hugo Dixon is Editor of Reuters Breakingviews.
Photo: Mark Martins with David Petraeus, Simon Gass and Nader Yama at Establishment of NATO Mission. DoD photo by Senior Chief Mass Communication Specialist (EXW) Tom Jones, USN