Top Guantanamo Prosecutor Says He Hasn't Gone Rogue

GUANTANAMO BAY NAVY BASE, Cuba -- Brig. Gen. Mark S. Martins -- currently at odds with the Obama administration on whether the U.S. military tribunal should bring charges that aren't recognized as war crimes under international law -- told reporters here on Sunday evening that he isn't going "rogue."

An appeals court vacated one defendant's "material support" verdict on the grounds that at the time of his actions, they were not recognized as international war crimes. As a result, Martins sought to drop the conspiracy charges and focus on "legally sustainable" ones, but the Pentagon official overseeing the tribunals refused to withdraw the conspiracy charge because of the Justice Department's position on the case. (Attorney General Eric Holder decided to press forward in fighting for the validity of the conspiracy charges in a separate appeals court, despite the recommendation of Solicitor General Donald Verrilli.)

Charlie Savage wrote in the New York Times this weekend that Martins "may appear to have gone rogue" by seeking to drop the conspiracy charges against confessed Sept. 11 mastermind Khalid Sheikh Mohammed and his co-defendants.

Over at Lawfare, Benjamin Wittes disagreed, writing that Martins was "using his discretion to decline to pursue for tactical reasons a charge that may be available to him, especially when his charging options--as Martins's clearly are with respect to the 9/11 case--are an embarrassment of prosecutorial riches."

At a press conference on Sunday night, I asked Martins about the dispute and about whether he had indeed "gone rogue." In typical Martin fashion, he had a story to tell. Here's his full response:

My wife and I last went down to Rogue River Valley in Oregon, she's from the northwest, about 12 years ago. I haven't had the opportunity or interest to go rogue since.

Duty, duty has always come first, as it has for so many people who serve our government. This is very much about different officers... I mean consider the tension and the accusation that everything is rigged, everyone is in cahoots to visit unfairness on an accused and the comment that different officials are hopelessly out of sack. Both can't exclusively be true. I ask you to consider that premise. This is the system working well.

I was a jury member in the military courts marshall, I was commissioned as an infantry officer and served as a jury member. Lots of different ranks in the room. You would be very proud of your officers in those panel members, that jury, though not a constitutional civilian jury, still very much a part of our system, still very much there in an institution that can be worthy of trust.

Lots of disagreements, principled disagreements because we were given a duty to have judicial temperament. In this duty you were to have a judicial temperament and follow the facts and the law, and the disagreements can grow quite heated, but it's for a good purpose. People have different disagreements that they're carrying out honorably and faithfully under the law, and that's what's happening here.