The following podcast contains advertising to access an ad-free version of the LawFair

podcast become a material supporter of LawFair at patreon.com slash LawFair, that's patreon.com slash

LawFair. Also check out LawFair's other podcast offerings, rational security, chatter, LawFair

no bull, and the aftermath.

Hello and welcome to the LawFair podcast. I'm Benjamin Whitties and today we have a

special edition of the podcast with a bit of breaking news. Brigadier General

Mark Martens, chief prosecutor of the military commissions, joins us to discuss his decision

to recommend dropping from the 9-11 case charges of conspiracy as a standalone offense.

The decision, which he announced yesterday, responds to the DC Circuit's recent opinion

in Hamdon 2, which held that material support charges are unavailable in military commissions

for conduct that predates the 2006 Military Commissions Act. General Markens' decision

comes just as the Justice Department took a step in a different direction, announcing

that it would maintain its appeal, also in the DC Circuit, of the Albalool case, which

asks whether Hamdon 2 requires that military commissions similarly lack jurisdiction

over conspiracy as a standalone charge. General Markens joined me by phone to

discuss his decision, the court opinion that he felt required it, the implications for

the 9-11 case, and the broader implications for the military commissions system itself.

General Markens, thanks for joining us. We've been planning on having you on the podcast

for several months now and we seem to have done so in the middle of a bit of breaking news.

You announced yesterday that you were recommending that one of eight charges against Khalid

Sheikh Mohammed and his co-defendants in the 9-11 case be dropped. What can you tell us

about that decision? Well, it's good to be talking with you Ben. It took us quite some

...