GUANTANAMO BAY NAVY BASE, Cuba _ The Pentagon's chief prosecutor refused to acknowledge that his office had sworn out war crimes charges against Hambali, four days after the Miami Herald disclosed the case against the alleged architect of two al-Qaida affiliate bombings in southeast Asia that killed more than 200 people.
It is the first known new case of the Trump administration and although the charges were sworn out more than a week ago, the Pentagon has yet to acknowledge the case or post it on the Pentagon's Military Commissions website proclaiming "Fairness (ASTERISK) Transparency (ASTERISK) Justice."
"It's a transparent system and it enables you to see what's happening," prosecutor Army Brig. Gen. Mark Martins said in an interview at Camp Justice Tuesday night. "Parts of it are not completely available for you to view."
Martins further refused to say whether he would seek the death-penalty in his proposed prosecution of Riduan "Hambali" Isomuddin, 53, accused of conspiring to commit murder, terror and other war crimes in the 2002 bombings of a Bali, Indonesian resort town and 2003 explosion at a Jakarta Marriott. At least 213 people died between the two attacks and many more were injured, including U.S. citizens
"No comment," he said, adding, "I'm not going to confirm or deny that we've done anything in the area of charges on a detainee. And I think that's the principled response."
At issue, Martins said broadly, is that his office has no obligation to disclose the existence of any sworn charges until he's forwarded them to the Pentagon official who decides whether the case goes forward, Convening Authority Harvey Rishikof.
Taken in totality, the general's remarks suggested that the 37-page charge sheet _ sworn on June 20 and presented to the long-held detainee at Guantanamo a day later _ was still sitting on Martins' desk. Rishikof's role is to decide whether the case merits prosecution, which crimes can be charged at a future arraignment at Camp Justice and whether to pursue a death-penalty prosecution.
"I can tell you that I'm not going to give you a charge sheet that I haven't even given to the official who is supposed to act on it," said Martins, four days after the Herald obtained a copy and inquired why it had not been made public. "I'm not going to do that. I just don't think that's the best interpretation of the rule."
Hambali, 53, was captured in Thailand in 2003 and spirited off to the CIA's secret Black Site prison program until President George W. Bush had him transferred to Guantanamo for trial in September 2006. He has never before been charged with a crime here. He is held as a Periodic Review Board-certified indefinite detainee in the war on terror, a "forever prisoner."
In 2011, before Martins became chief prosecutor. the Pentagon disclosed the sworn charges against a Guantanamo captive now facing trial as the alleged architect of the October 2000 USS Cole bombing, noting that the prosecution would be forwarding that case to then Convening Authority Bruce MacDonald. Martins said Tuesday night that, in the instance of that disclosure, the forwarding of charges was imminent if not virtually simultaneous to the public announcement on April 20, 2011.
"In Nashiri we forwarded them almost immediately to McDonald. The swearing is not a public act. Read what the public trial rule is," Martins said. "Not every piece of every action by an official in the process is open to you, and I'm sorry about that."
The commentary did little to explain why Martins' office chose to swear charges in a new case now, at the start of the Trump administration and as Rishikof's office was developing a plan to handle an overcrowded 2018 war court schedule. Judges in the current three major cases involving seven of Guantanamo's 41 prisoners have double booked the single courtroom at Camp Justice, raising a question of whether the U.S. military assigned to the prison can support night court.
"I've not forwarded any charges to the convening authority in any case," Martin said. "When I do you'll know about it."
On the days the charges were sworn out and presented to Hambali, June 20 and 21, Rishikof was at Guantanamo, according to multiple military sources, holding a three-day workshop on long-range planning for military commissions. Roundtable participants included representatives of the prison staff, Navy base staff, U.S. Marshals Office, FBI, U.S. Southern Command, the Pentagon's Joint Staff and the Camp Justice media relations team.
It was not immediately known if Martins sent a delegate. Chief Defense Counsel Marine Brig. Gen. John Baker said he was invited to make a 15-minute presentation by video teleconference but not to participate further or attend the conference.
