Cheryl Bormann, the leader of a defense team representing Walid bin Attash, a Yemeni detainee, is asking a military judge overseeing pretrial hearings to order the prosecutor, Brig. Gen. Mark S. Martins, to cease making subjective “extrajudicial” observations and limit himself to basic factual comments. http://www.nytimes.com/2014/02/07/us/motion-is-filed-to-silence-prosecutor-in-sept-11-case.html?ref=world
“Despite a clear ethical duty to comment only on matters beyond any dispute (such as the time and date of upcoming hearings, or motions on the docket), the prosecution and affiliated entities in the instant case time and time again have gone far afield with comments to the national media,” the motion said.
The defense strategy in the Sept. 11 case centers in part on arguing that the United States government forfeited a right to seek the death penalty against the detainees because the C.I.A. tortured them and because the military tribunal is unfair and illegitimate.
Ms. Bormann’s complaint focused in part on an episode of “60 Minutes” shown on CBS on Nov. 3 in which General Martins said that statements made by the defendants after their abuse by the C.I.A. should be admissible.
“The point that I reject and that the law rejects is that there can be no voluntary statements following an instance of coercion,” General Martins said. “Justice requires that you look deeper, that you determine if the statement — even though there had been a prior instance — was nevertheless voluntary. And there can be such statements.”
Ms. Bormann was also interviewed for the “60 Minutes” segment, and contested General Martins’s comments. “You send in agents from the same government that tortured him for three years to take statements,” she said. “And then if you’re General Martins, you say, ‘Well, those are now clean.’ Guess what? They’re not.”
General Martins frequently gives speeches, does news conferences and sits for interviews in which he explains and defends the military commissions system as it has existed since a congressional overhaul in 2009. In her motion, Ms. Bormann wrote that General Martins’s comments on “60 Minutes” and elsewhere went to a “central” issue and could “materially prejudice and unlawfully influence the proceedings and taint the pool of prospective panel members.”
She also asked the judge to order the government to remove from the commission’s website the slogan “Fairness ★ Transparency Justice” and a chart that compares tribunals with civilian trials, which her motion portrayed as “inaccurate and misleading.”
Lt. Col. Todd Breasseale, a Pentagon spokesman, said Ms. Bormann’s complaints were without merit.
“The chief prosecutor is well within his ethical limits in discussing the nature of the military commissions and explaining it to the public,” he said. “I am unaware of him attempting to try these cases in the court of public opinion and have been witness to him avoiding questions that would attempt to discuss the guilt or innocence of particular defendants.”
The order Ms. Bormann is seeking would apply to out-of-court statements by prosecutors without limiting what the defense lawyers may say. The request comes in the context of a difficulty in the Sept. 11 cases. There has been a struggle to create a rule restricting the public disclosure of classified information — including the treatment of the defendants while they were in C.I.A. custody — one that several defense lawyers have criticized.
The dispute raises both due process and First Amendment issues. A military rule allows judges to bar parties to a case from making out-of-court statements that “present a substantial likelihood of material prejudice” to a fair trial by a jury.