UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 PROCEEDINGS OF A MILITARY COMMISSION 2 3 The military judge called the R.M.C. 803 session to order at 4 Guantanamo Bay, Cuba at 0912, 20 February 2014 pursuant to the 5 following orders: 6 7 Military Commission Convening Order Number 14-01, dated 5 8 February 2014. 9 [END OF PAGE] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 MJ [Col ALLRED]: This military commission is called to TC [LTC HOSANG]: Good morning, Your Honor. order. This 4 military commission is appointed by Convening Order No. 14-01, 5 dated 5 February 2014, copies of which have been furnished to 6 the military judge, counsel, and the accused and will be 7 attached to the record. 8 9 These proceedings are being transmitted via closed-circuit television to remote viewing sites at 10 Fort Meade, Maryland, pursuant to the military judge's order 11 on public access to open proceedings Appellate Exhibit 006A. 12 The charges have been properly approved by the 13 convening authority and referred to this commission for trial. 14 The prosecution caused a copy of the charges in English and in 15 Arabic, the accused's native language to be served on the 16 accused on 6 February 2014. 17 sheet is attached to the record as Appellate Exhibit 009. 18 A copy of the translated charge The prosecution is ready to proceed in the 19 arraignment of United States v. Ahmed Mohammed Ahmed Haza Al 20 Darbi, also known as Ahmed Mohammed al Darbi, Ahmed Mohd Ahmed 21 al Darbi, Ahmed Mohammed Haza al Darbi, Abed al Aziz, Abdel 22 Aziz al Makki, Abdel Rahim Abu Hudaufa al Makki, Abdel Rahim 23 al Janoubi, Abed Rahim al Janoubi, Mohammed Hazaa, Abd al Aziz UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 2 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 al Janoubi, and Ahmad Mohammed Ahmad Haza. 2 3 The accused and the following personnel detailed to this commission are present: 4 Colonel Mark L. Allred, Military Judge; 5 Lieutenant Colonel Michael Hosang, Trial Counsel; 6 Major Charlotte Emery, Assistant Trial Counsel; 7 Lieutenant Theresa Champ, Detailed Defense 8 Counsel; 9 Professor Ramzi Kassem, Civilian Defense Counsel. 10 The members are absent. 11 Two court reporters have been detailed for this 12 commission and have previously been sworn. 13 officer has also been detailed by this military commission and 14 has previously been sworn. 15 MJ [Col ALLRED]: The court security I've been detailed to the chief judge 16 of the military commissions pursuant to R.M.C. 503. 17 certified and qualified in accordance with Articles 26(b) and 18 (c) of the Uniform Code of Military Justice as well as 19 R.M.C. 502, 503, and I have previously been sworn under 20 Article 42(a) of the Uniform Code of Military Justice and 21 R.M.C. 807. 22 23 I am Before continuing with other preliminary matters, it is necessary for me to inquire into the accused's need for UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 3 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 an interpreter/translator. 2 understand, read and speak English? 3 ACC [MR. AL DARBI]: 4 MJ [Col ALLRED]: Mr. al Darbi, are you able to A little bit, just basic. Do you feel that you will be able to 5 follow and understand these proceedings without the use of an 6 interpreter? 7 ACC [MR. AL DARBI]: 8 MJ [Col ALLRED]: 9 10 Based upon Mr. al Darbi's statement that he cannot follow and participate in these proceedings in English, we will need the services of an interpreter. 11 Mr. al Darbi, what language do you speak? 12 ACC [MR. AL DARBI]: 13 MJ [Col ALLRED]: 14 I don't think so. Arabic. Is there a translator with you now in this courtroom who speaks the language that you do? 15 ACC [MR. AL DARBI]: 16 MJ [Col ALLRED]: Yes. To the translator, tell me if you are 17 qualified to interpret and translate into the accused's 18 language and whether you have been sworn. 19 INT: 20 TC [LTC HOSANG]: Yes, I am. The commission interpreters within the 21 meaning of R.M.C. 502(e) who have been detailed for this 22 commission have previously been sworn. 23 of each commission interpreter has been marked as Appellate The curriculum vitae UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 4 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Exhibit 015. MJ [Col ALLRED]: The curriculum vitae of each 3 commission interpreter marked as Appellate Exhibit 015 will be 4 sealed. 5 6 7 Trial Counsel, please state by whom you have been detailed and your qualifications. TC [LTC HOSANG]: All trial counsel have been detailed 8 to this military commission by the Chief Prosecutor in 9 accordance with R.M.C. 503. All members of the prosecution 10 are qualified under R.M.C. 502(d) and we have previously been 11 sworn in accordance with R.M.C. 807. 12 prosecution has acted in any manner which might tend to 13 disqualify us in this proceeding. 14 been marked as Appellate Exhibit 002B. 15 No member of the The detailing document has Also present at the prosecution table is paralegal 16 Sergeant First Class Deanna Strommen and a linguist, Max, who 17 will assist the prosecution but will not be representing the 18 government. 19 MJ [Col ALLRED]: Mr. al Darbi, pursuant to the Manual 20 for Military Commissions, you are represented by Lieutenant 21 Theresa Champ, your Detailed Defense Counsel. 22 understand this? 23 ACC [MR. AL DARBI]: Do you Yes, I do. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 5 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col ALLRED]: The Detailed Defense Counsel is 2 provided to you free of charge. 3 ACC [MR. AL DARBI]: 4 MJ [Col ALLRED]: Do you understand this? Yes. In addition to Detailed Defense 5 Counsel, you may be represented by qualified civilian lawyers. 6 A civilian lawyer would represent you at no expense to the 7 government. 8 admitted to practice -- to the practice of law in a state, 9 district, territory, or possession of the United States or To be qualified, he or she must be a U.S. citizen 10 federal court; may not have been the subject of disqualifying 11 action by a Bar or other competent authority; be eligible for 12 a secret clearance or higher as required; and agree in writing 13 to comply with the orders, rules, and regulations of these 14 military commissions. Do you understand this? 15 ACC [MR. AL DARBI]: 16 MJ [Col ALLRED]: Yes. If a civilian lawyer represents you, 17 your Detailed Defense Counsel will continue to represent you 18 as well unless you specifically waive the right to be 19 represented by Detailed Defense Counsel. 20 what I have just told you? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Do you understand Yes, I have. Do you have any questions about your right to counsel before this commission? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 6 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ACC [MR. AL DARBI]: 2 MJ [Col ALLRED]: 3 No, I don't. Do you desire to be represented by Professor Ramzi Kassem and Lieutenant Theresa Champ? 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: 6 7 8 9 10 11 Yes. Do you want any other qualified counsel? ACC [MR. AL DARBI]: Not before this hearing. I am fine with the attorneys who are here now. MJ [Col ALLRED]: Military counsel will announce their detailing and qualifications. DDC [LT CHAMP]: Your Honor, I have been detailed by the 12 Chief Defense Counsel in accordance with R.M.C. 503. 13 qualified under R.M.C. 502 and I have been previously sworn in 14 accordance with R.M.C. 807. 15 that might tend to disqualify me from this proceeding. 16 document detailing counsel is marked Appellate Exhibit 007. 17 CDC [MR. KASSEM]: I am I have not acted in any manner The Your Honor, my name is Ramzi Kassem, 18 I am professor of law at the City of University of New York. 19 I am licensed to practice in the state of New York. 20 qualified in accordance with R.M.C. 502(d) and I have provided 21 my notice of appearance and agreement to the military judge 22 and it is marked as Appellate Exhibit 007A as required by the 23 Military Commissions Act and the preliminary procedures and UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 7 I'm UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 procedural instructions for United States v. al Darbi. 2 not acted in any manner that might tend to disqualify me ---- 3 INT: I have I'm sorry to interrupt the court, but we can't 4 hear what the attorney is saying; if he could speak up, it 5 would be great. Thank you. 6 CDC [MR. KASSEM]: 7 MJ [Col ALLRED]: 8 9 10 11 Should I repeat it, Your Honor? Mr. Kassem, please go back and begin with your qualifications. CDC [MR. KASSEM]: Absolutely. My name is Ramzi Kassem. I am ---MJ [Col ALLRED]: Let me just cut you off here. But if 12 they are having difficulty hearing you, is it that you need to 13 move that microphone a little closer? 14 CDC [MR. KASSEM]: 15 MJ [Col ALLRED]: 16 CDC [MR. KASSEM]: Closer, Your Honor. Please speak up. The light is on. Go ahead. My name is it Ramzi Kassem, I am a 17 professor of law at the City University of New York. 18 licensed to practice in the state of New York, I am qualified 19 in accordance with R.M.C. 502(d), and I have provided my 20 notice of appearance and agreement to the military judge and 21 it is marked as Appellate Exhibit 007A as required by the 22 Military Commissions Act and the preliminary procedural 23 instructions for United States v. al Darbi. I have not acted UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8 I am UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 in any manner that might tend to disqualify me in this 2 proceeding. 3 Was that better? 4 INT: 5 MJ [Col ALLRED]: 6 7 sworn. Yes. The civilian counsel will now be Please raise your right hand and stand, thank you. [COUNSEL WAS SWORN.] 8 MJ [Col ALLRED]: 9 I am not aware of any grounds for challenge against me. Thank you. Please be seated. 10 I have previously provided counsel for both sides a summarized 11 biography that has been marked as Appellate Exhibit 012. 12 13 Does counsel for either side have any questions based upon my biography as voir dire? 14 TC [LTC HOSANG]: 15 CDC [MR. KASSEM]: 16 MJ [Col ALLRED]: 17 No, Your Honor. No, Your Honor. Does counsel for either side have a challenge for cause against the military judge? 18 TC [LTC HOSANG]: 19 CDC [MR. KASSEM]: 20 MJ [Col ALLRED]: No, Your Honor. No, Your Honor. Do counsel for both sides understand 21 the provisions of the Manual for Military Commissions 22 concerning safeguarding and securing classified information? 23 TC [LTC HOSANG]: Yes, Your Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 9 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 CDC [MR. KASSEM]: 2 MJ [Col ALLRED]: Yes, Your Honor, we do. Do you understand that you must as 3 soon as practicable notify me of any intent to offer evidence 4 involving classified information so that I may consider the 5 need to close these proceedings? 6 TC [LTC HOSANG]: 7 CDC [MR. KASSEM]: 8 MJ [Col ALLRED]: 9 Yes, Your Honor. Yes. As I am required by the Manual for Military Commissions to consider the safety of witnesses and 10 others at these proceedings, do counsel for both sides 11 understand that they must notify me of any issues regarding 12 the safety of potential witnesses so that I may determine the 13 appropriate ways in which the testimony will be received and 14 witnesses protected? 15 TC [LTC HOSANG]: 16 CDC [MR. KASSEM]: 17 MJ [Col ALLRED]: Yes, Your Honor. Yes, Your Honor. The only protective orders of which I 18 am aware have been marked as Appellate Exhibit 003A, 19 nondisclosure of commission panel members' identities. 20 Appellate Exhibit 004A, unclassified discovery material, and 21 Appellate Exhibit 005A, courtroom security. 22 seen these exhibits? 23 TC [LTC HOSANG]: Have both sides Yes, Your Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 10 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 CDC [MR. KASSEM]: 2 MJ [Col ALLRED]: Yes, Your Honor, we have. Counsel, is either side aware of any 3 additional protective orders I have not previously mentioned; 4 and if so, please mark them as appellate exhibits and show 5 them to the opposing counsel and hand the exhibits to me. 6 TC [LTC HOSANG]: 7 CDC [MR. KASSEM]: 8 MJ [Col ALLRED]: Not from the government, Your Honor. Not from our side, Your Honor. On the 6th of February, 2014, a 9 telephonic 802 conference was held; and later on 17 February 10 2014 here at AV34, Guantanamo Bay Naval Base, Cuba, a second 11 802 conference was held, then earlier this morning, just prior 12 to these proceedings; a third 802 conference was held. 13 Participating in all those conferences for the defense were 14 Professor Ramzi Kassem and Lieutenant Theresa Champ of the 15 U.S. Navy, and for the government, Lieutenant Colonel 16 Michael T. Hosang, U.S. Army, and Major Charlotte Emery, U.S. 17 Army. 18 Allred, as military judge, Mr. Fred Taylor, senior attorney 19 advisor. 20 And from the trial judiciary, myself, Colonel Mark During those conferences we discussed the 21 administrative and logistical issues that would be involved in 22 this case and the general flow of how things were to proceed. 23 During those discussions I did not receive any evidence, I did UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 11 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 not make any rulings. 2 3 Do counsel for either side object to my summary of our 802 discussions or wish to supplement that in any way? 4 TC [LTC HOSANG]: 5 CDC [MR. KASSEM]: 6 MJ [Col ALLRED]: Not from the government, Your Honor. Not for the defense, Your Honor. Thank you. 7 The accused will now be arraigned. 8 appear to have the requisite qualifications and all required 9 to be sworn have been sworn. 10 All personnel Defense counsel, have you and the accused 11 previously provided -- have you and the accused previously 12 been provided a copy of the charges? 13 CDC [MR. KASSEM]: 14 MJ [Col ALLRED]: We have, Your Honor. All parties to the trial have been 15 furnished with a copy of the charges. 16 announce the general nature of the charges. 17 TC [LTC HOSANG]: The Trial Counsel will The general nature of the charges in 18 this case are: 19 objects, hazarding a vessel, terrorism, attempt to hazard a 20 vessel, and attempted terrorism. 21 22 23 Attacking civilians, attacking civilian MJ [Col ALLRED]: Does defense desire the charges to be read? CDC [MR. KASSEM]: Your Honor, the defense waives UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 12 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 reading of the charges. MJ [Col ALLRED]: Very well, that reading may be omitted. Accused and counsel please rise. Mr. al Darbi, I 5 now ask you how do you plead, but I advise you that any motion 6 addressed under our Rule For Military Commission 905(b) must 7 be made prior to the entry of pleas. 8 will speak for you. 9 CDC [MR. KASSEM]: Your defense counsel Your Honor, the defense has no 10 motions and pleads as follows to all charges and their 11 specifications: 12 13 14 Guilty. MJ [Col ALLRED]: Thank you, you may be seated. I intend to proceed. Is anyone in need of recess at this point? 15 TC [LTC HOSANG]: 16 CDC [MR. KASSEM]: 17 MJ [Col ALLRED]: No, Your Honor. No, Your Honor. Mr. al Darbi, you have entered a plea 18 of guilty to all charges and their specifications. 19 of guilty will not be accepted by me unless you understand its 20 meaning and effect. 21 to discuss your plea of guilty with you. 22 23 Your plea So what I am going to do at this time is Do you understand what I have stated so far? ACC [MR. AL DARBI]: Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 13 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col ALLRED]: A plea of guilty is the strongest form 2 of proof known to the law. 3 receiving any evidence, this commission can find you guilty of 4 the offenses to which you have pled guilty. 5 On your plea alone and without Your plea of guilty will not be accepted by me 6 unless you realize that by your plea you admit every act and 7 every element of the offenses to which you have pled guilty. 8 9 In addition, your plea will not be accepted unless I am convinced that you are pleading guilty because you 10 actually are, in fact, guilty under United States law. 11 do not think you are guilty under United States law, then you 12 should not plead guilty. 13 If you In addition, I cannot and will not accept your 14 plea unless, after making my inquiry, I am satisfied that 15 either there is a factual basis for the plea or that you 16 voluntarily agree that, having viewed the evidence the 17 government intends to introduce against you, you are 18 personally convinced that the prosecution could prove your 19 guilt of the offenses to which you are pleading guilty beyond 20 a reasonable doubt. Do you understand that? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes. If at any time during this process you are confused or have any questions, please stop me and I'll UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 14 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 give you a chance to talk things over with your attorneys. 2 you understand that? 3 ACC [MR. AL DARBI]: 4 MJ [Col ALLRED]: Do Yes. By your plea of guilty, you waive or, 5 in other words, you give up certain important rights. 6 of all, you give up the right against self-incrimination, that 7 is the right to say nothing at all about these offenses. 8 ACC [MR. AL DARBI]: 9 MJ [Col ALLRED]: First Yes. Second, you give up the right to a 10 trial of the facts by the military commission, that is, your 11 right to have a commission decide whether or not you are 12 guilty based on evidence presented by the government and, if 13 you choose to do so, by the defense. 14 15 16 17 Are you able to hear that, defense counsel? Is there a problem with the translation? CDC [MR. KASSEM]: omitted. Your Honor, I think the last part was You did not ask whether he understood. 18 MJ [Col ALLRED]: 19 CDC [MR. KASSEM]: 20 MJ [Col ALLRED]: Okay. Let me ---- Thank you, Your Honor. Let's cover that again. Second, you 21 give up the right to a trial of the facts by the military 22 commission, that is, your right to have a commission decide 23 whether or not you are guilty based on evidence presented by UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 15 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 the government and, if you do so -- if you choose to do so, by 2 defense. Do you understand that? 3 ACC [MR. AL DARBI]: 4 MJ [Col ALLRED]: Yes. Third, you give up the right to 5 confront the witnesses called against you and to call 6 witnesses on your behalf in the findings portion of the trial. 7 Do you understand that you have this right? 8 ACC [MR. AL DARBI]: 9 MJ [Col ALLRED]: 10 Yes. Do you understand that you have all of the rights we have just discussed? 11 ACC [MR. AL DARBI]: 12 MJ [Col ALLRED]: Yes. If you plead guilty, there will not be 13 a trial of any kind as to the offenses to which you are 14 pleading guilty. 15 rights -- you give up the three rights I have just described. 16 Do you understand that? By pleading guilty, you give up three 17 ACC [MR. AL DARBI]: 18 MJ [Col ALLRED]: Yes. Even if you believe you are guilty, 19 you still have a legal and moral right to enter a plea of not 20 guilty and to require the government to prove its case against 21 you, if it can, by legal and competent evidence beyond a 22 reasonable doubt. 23 would be presumed under the law to be innocent. If you were to plead not guilty, then you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 16 And only by UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 introducing evidence and proving your guilt beyond a 2 reasonable doubt could the government overcome this 3 presumption of innocence. 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: 6 Yes. Have you discussed these matters with your counsel? 7 ACC [MR. AL DARBI]: 8 MJ [Col ALLRED]: 9 Do you understand this? Yes. Do you agree to give up these three rights with regard to the offenses to which you have pleaded 10 guilty and answer my questions? 11 ACC [MR. AL DARBI]: 12 MJ [Col ALLRED]: Yes. If you continue with your guilty plea, 13 you will be placed under oath and I will question you to 14 determine whether you are, in fact, guilty. 15 this? 16 ACC [MR. AL DARBI]: 17 MJ [Col ALLRED]: Do you understand Yes. You should also understand that if you 18 tell me anything that is untrue, your statements may be used 19 against you later for charges of perjury or making false 20 statements. Do you understand this? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes. Trial Counsel, please place the accused under oath. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 17 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [THE ACCUSED WAS SWORN.] 2 MJ [Col ALLRED]: 3 Please be seated. Counsel, I understand that there is a stipulation 4 of fact in this case. 5 me turn to you, Trial Counsel. 6 stipulation of fact. 7 things going on with that that you might like to place on the 8 record. 9 That stipulation of fact -- well, let Why don't you speak to the I believe there are some editing and TC [LTC HOSANG]: Yes, Your Honor. Stipulation of facts 10 have been marked as Prosecution Exhibit 1 for identification. 11 It is dated 20 December 2013 and has previously been provided 12 to the court. 13 enclosures. 14 clerk. 15 It is a 20-page document, Your Honor, with 21 The original was previously provided to the court A representational copy is present in the court today. With the exception of pages 12 and 13, which the 16 accused, the government, and the counsel have all initialed 17 and modified today, we will substitute those pages with the 18 original that the clerk currently has. 19 20 MJ [Col ALLRED]: Very well. Defense Counsel, do you have any objection to the 21 admission of Prosecution Exhibit 1 for identification, a 22 stipulation of fact? 23 DDC [LT CHAMP]: No, Your Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 18 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col ALLRED]: And with regard to the administrative 2 matters, the paging, the pagination and so forth, and changes, 3 do you have any concern or issue there? 4 DDC [LT CHAMP]: 5 MJ [Col ALLRED]: No, Your Honor. Mr. al Darbi, please look at page 20 6 of Prosecution Exhibit 1 for identification, a stipulation of 7 fact. Did you sign this stipulation? 8 ACC [MR. AL DARBI]: 9 MJ [Col ALLRED]: 10 Yes. Prior to signing this stipulation, did you read it and discuss it with your attorneys? 11 ACC [MR. AL DARBI]: 12 MJ [Col ALLRED]: Yes. Do you understand everything contained 13 within the stipulation of fact? 14 ACC [MR. AL DARBI]: 15 MJ [Col ALLRED]: 16 Yes. Do counsel for both sides agree to the stipulation and that these are your signatures? 17 TC [LTC HOSANG]: 18 DDC [LT CHAMP]: 19 MJ [Col ALLRED]: Yes, Your Honor. Yes, Your Honor. Mr. al Darbi, at this point we are 20 going to discuss the stipulation of fact to ensure that you 21 understand it and agree to its uses. 22 23 A stipulation of fact is an agreement between the trial counsel, the defense counsel, and yourself that the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 19 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 contents of the stipulation are the uncontradicted facts in 2 the case. 3 stipulation and this stipulation will not be accepted without 4 your consent. You have the right not to enter into this Do you understand that? 5 ACC [MR. AL DARBI]: 6 MJ [Col ALLRED]: Yes. Again, if you have any questions about 7 anything I am stating or anything I'm asking of you, please 8 consult with your counsel. 9 10 ACC [MR. AL DARBI]: MJ [Col ALLRED]: Do you understand that? Yes. Mr. al Darbi, this stipulation 11 contains an introductory paragraph and 114 numbered 12 paragraphs. 13 with your counsel? Have you thoroughly reviewed this stipulation 14 ACC [MR. AL DARBI]: 15 MJ [Col ALLRED]: 16 Yes. Are you voluntarily entering into this stipulation? 17 ACC [MR. AL DARBI]: 18 MJ [Col ALLRED]: Yes. Now, I would note that there are a 19 number of exhibits that have been attached to this stipulation 20 and that in its entirety the stipulation consists of 21 126 pages. 22 23 Mr. al Darbi, have you reviewed all of these attachments, the full 126 pages, and do you understand that UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 20 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 these are being made part of the stipulation? 2 ACC [MR. AL DARBI]: 3 MJ [Col ALLRED]: 4 stipulation? ACC [MR. AL DARBI]: 6 MJ [Col ALLRED]: Yes. Do you think it is in your best interest to enter into this stipulation? 8 ACC [MR. AL DARBI]: 9 MJ [Col ALLRED]: 10 Yes, Your Honor. Are you voluntarily entering into this 5 7 Yes. Yes. Having reviewed this document, is there any part to which you do not want to consent? 11 ACC [MR. AL DARBI]: 12 parts of the stipulation. I believe that I agree with all the 13 MJ [Col ALLRED]: 14 enter into this stipulation? Has anyone forced or threatened you to 15 ACC [MR. AL DARBI]: 16 MJ [Col ALLRED]: No. If I admit this stipulation into 17 evidence, it will be used in two ways. 18 to determine if you are, in fact, guilty. 19 given later to the court members and they will have it with 20 them when they decide upon the sentence. 21 that? 22 ACC [MR. AL DARBI]: 23 MJ [Col ALLRED]: First, I will use it Second, it will be Do you understand Yes, Your Honor. Do you agree to those uses? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 21 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ACC [MR. AL DARBI]: 2 MJ [Col ALLRED]: Do counsel agree? 3 TC [LTC HOSANG]: Yes, Your Honor. 4 DDC [LT CHAMP]: 5 MJ [Col ALLRED]: Yes, Your Honor. Yes, Your Honor. Mr. al Darbi, ordinarily a stipulation 6 of fact cannot be contradicted or questioned after it has been 7 entered into evidence. 8 into evidence, you cannot later argue that the information 9 contained in the stipulation is false. 10 That is, after it has been admitted Do you understand that? 11 ACC [MR. AL DARBI]: 12 MJ [Col ALLRED]: Yes, Your Honor. If this stipulation should be 13 questioned or contradicted after I have accepted your guilty 14 pleas, then what I would have to do is go back and reopen the 15 inquiry into your pleas. 16 at this point in the hearing if there is anything at all that 17 you disagree with or anything that you feel is untrue in the 18 stipulation. This means you need to let me know Do you understand that? 19 ACC [MR. AL DARBI]: 20 MJ [Col ALLRED]: Yes, Your Honor. Do you admit that the information 21 contained in the stipulation is true and correct to the best 22 of your knowledge and belief? 23 ACC [MR. AL DARBI]: Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 22 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 MJ [Col ALLRED]: Defense Counsel, is there any objection to Prosecution Exhibit 1 for identification? 3 DDC [LT CHAMP]: 4 MJ [Col ALLRED]: No, Your Honor. Prosecution Exhibit 1 for 5 identification, the stipulation of fact, is admitted into 6 evidence subject to my acceptance of the accused's guilty 7 plea. 8 9 Mr. al Darbi, you should have been provided a copy of the charge sheet. Do you have a copy of that charge sheet? 10 ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: Yes. I recommend that you keep that 12 document in front of you during the next portion of the trial 13 so that you can easily refer to the charge sheet as we proceed 14 through the inquiry into your pleas. 15 16 Just one moment. Do we have a copy of the charge sheet handy? Thank you. 17 Mr. al Darbi, what I am going to do now is explain 18 the elements of each of the offenses to which you have pled 19 guilty. 20 the facts which the government would have to prove beyond a 21 reasonable doubt before you could be found guilty if you had 22 pled not guilty. 23 And when I use the term elements, I am referring to After I list the elements for you, we will have a UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 discussion regarding the circumstances surrounding these 2 offenses. 3 stated to you so far? Do you have any questions about anything I have 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: No, Your Honor. There is one element common to all the 6 offenses to which you are pleading guilty. 7 element is that you are a person subject to trial by military 8 commission as an alien unprivileged enemy belligerent. 9 That common An alien is an individual who is not a citizen of 10 the United States. 11 individual, other than a privileged belligerent who, A, has 12 engaged in hostilities against the United States or its 13 coalition partners; B, has purposefully and materially 14 supported hostilities against the United States or its 15 coalition partners; or C, was a part of al Qaeda at the time 16 of the alleged offense under Chapter 47A of Title 10, United 17 States Code. 18 An unprivileged enemy belligerent is an Do you understand these two definitions? 19 ACC [MR. AL DARBI]: 20 MJ [Col ALLRED]: Yes, Your Honor. Do you understand this element and 21 terms are common to all charges and specifications to which 22 you are pleading guilty? 23 ACC [MR. AL DARBI]: Yes, Your Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 24 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col ALLRED]: Do you admit and agree that within the 2 context of this military commission, these terms and their 3 definitions describe what you did -- excuse me, who you are? 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: Yes. Let's look at the provisions in the 6 stipulation of fact which address this jurisdictional issue. 7 Look at paragraphs 1 and 2 of the stipulation. 8 has eight subparagraphs, each of which describe and explain 9 how you fit within the definition of an alien unprivileged 10 11 Paragraph 2 enemy belligerent. Once again, that particular element, being an 12 alien unprivileged enemy belligerent, is an element of all the 13 offenses, so we are only going to discuss this particular 14 element this one time, recognizing it applies to each offense 15 to which you are pleading guilty. 16 Now, based on your agreement that the stipulation 17 of fact is true, are you willing to admit that you meet the 18 definition of an alien unprivileged enemy belligerent? 19 ACC [MR. AL DARBI]: 20 MJ [Col ALLRED]: Yes. In Charges I, II, III, and IV, you are 21 charged with liability for substantive criminal acts committed 22 by a person other than yourself. 23 ACC [MR. AL DARBI]: Are you aware of this? Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 25 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col ALLRED]: Do you understand that you may be held 2 criminally responsible for acts of others on a theory of 3 vicarious liability? 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: Yes. There are two forms of vicarious 6 liability, one, the law of principals, and two, conspiratorial 7 liability. 8 principals. 9 will then discuss conspiratorial liability with you. 10 I will first discuss with you the law of After we have discussed the law of principals, I Under a theory of principal liability for the acts 11 of another, you may be held criminally responsible if you, 12 one, commit, aid, abet, counsel, command, or procure the 13 commission of an offense punishable under the Military 14 Commissions Act; or cause an act to be done which, if it were 15 directly performed by you, would be punishable under the 16 Military Commissions Act. 17 ACC [MR. AL DARBI]: 18 MJ [Col ALLRED]: 19 concepts with your attorneys? Do you understand that? Yes, Your Honor. Have you discussed these legal 20 ACC [MR. AL DARBI]: 21 MJ [Col ALLRED]: Yes, Your Honor. The first principal -- theory of 22 principal liability applies to one who aids, abets, counsels, 23 commands, or procures the commission of a substantive criminal UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 26 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 act. Do you understand that? 2 ACC [MR. AL DARBI]: 3 MJ [Col ALLRED]: Yes. The person who actually commits an 4 offense is a principal, as well as anyone who knowingly and 5 willingly aids or abets another in committing an offense is 6 also a principal and equally guilty of the offense. 7 understand that? 8 ACC [MR. AL DARBI]: 9 MJ [Col ALLRED]: Do you Yes. To aid and abet, you must have 10 consciously shared in the actual perpetrator's criminal 11 intent. 12 had knowledge of the means by which the perpetrator was to 13 carry out that criminal intent. 14 ACC [MR. AL DARBI]: 15 MJ [Col ALLRED]: There is no requirement that you agree with or even Do you understand that? Yes, Your Honor. Likewise, you are also considered a 16 principal and you are as guilty as the person who actually 17 committed the offense if you knowingly and willfully 18 counseled, commanded, or procured the perpetrator to commit an 19 offense. Do you understand that? 20 ACC [MR. AL DARBI]: 21 MJ [Col ALLRED]: 22 is not required. 23 encourage. Yes, Your Honor. The presence at the scene of the crime "Counsel" means to advise, recommend, or "Command" means an order given by one person to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 27 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 another, who, because of the relationship of the parties, is 2 under an obligation or sense of duty to obey the order. 3 "Procure" means to bring about or cause. 4 that? 5 ACC [MR. AL DARBI]: 6 MJ [Col ALLRED]: Do you understand Yes, Your Honor. If the offense is committed, even if 7 it is accomplished in a different manner from that counseled, 8 commanded, or procured, the person who counseled, commanded, 9 or procured the commission of the offense is guilty. 10 Do you understand that? 11 ACC [MR. AL DARBI]: 12 MJ [Col ALLRED]: Yes. Once the act counseled, commanded, or 13 procured is done, the person who did the counseling, 14 commanding, or procuring is criminally responsible for all the 15 likely results that may occur from the doing of that act. 16 you understand that? 17 ACC [MR. AL DARBI]: 18 MJ [Col ALLRED]: Do Yes. The second theory of principal 19 liability applies to one who has caused another to commit a 20 criminal act. Do you understand that? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes. Anyone who willfully caused an act to be done which, if actually performed by him, would be a UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 28 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 criminal offense, is a principal, and is just as guilty of the 2 offense as if he had done the act himself. 3 that? 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: Do you understand Yes. Under either theory of principal 6 liability, you must share the criminal purpose or design of 7 the actual perpetrator. Do you understand that? 8 ACC [MR. AL DARBI]: 9 MJ [Col ALLRED]: Yes. A principal may also be convicted of 10 crimes committed by another principal if such crimes are 11 likely to result as a natural and probable consequence of the 12 shared criminal venture or design. 13 ACC [MR. AL DARBI]: 14 MJ [Col ALLRED]: Do you understand that? Yes. One may be a principal even if the 15 perpetrator is not identified, is not prosecuted, or is 16 acquitted. Do you understand that? 17 ACC [MR. AL DARBI]: 18 MJ [Col ALLRED]: Yes. Now I will discuss conspiratorial 19 liability with you. 20 of a conspiracy is also -- a member of a conspiracy, also 21 called a common plan or agreement, is criminally responsible 22 for any offense committed by any member of the common plan or 23 agreement in furtherance of the common plan or agreement, or Under this theory of liability, a member UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 29 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 as an object of the common plan or agreement. 2 understand that? 3 ACC [MR. AL DARBI]: 4 MJ [Col ALLRED]: Do you Yes. To be guilty under this theory, you 5 must have entered into an agreement with others to commit an 6 offense under the Military Commissions Act and, while the 7 agreement continued to exist and while you remained a party to 8 that agreement, you must have performed an overt act or acts 9 for the purpose of bringing about the object of the common 10 11 plan or agreement. Do you understand that? CDC [MR. KASSEM]: Your Honor, I think we're having sort 12 of a relaying moment between the interpreters, so if you 13 wouldn't mind going over it again? 14 MJ [Col ALLRED]: Thank you, Mr. Kassem. 15 To be guilty under this theory, you must have 16 entered into an agreement with others to commit an offense 17 under the Military Commissions Act and, while the agreement 18 continued to exist and while you remained a party to that 19 agreement, you must have performed an overt act or acts for 20 the purpose of bringing about the object of the common plan or 21 agreement. Do you understand that? 22 ACC [MR. AL DARBI]: 23 MJ [Col ALLRED]: Yes. Is the relay okay? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 30 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 INT: 2 MJ [Col ALLRED]: Yes. The agreement in a conspiracy does not 3 have to be in any particular form or expressed in formal 4 words. 5 common understanding to accomplish the object of the common 6 plan or agreement. 7 manner in which the common plan or agreement is to be carried 8 out or what part each conspirator is to play. 9 understand what I have just explained to you? It is sufficient if the minds of the parties reach a The agreement does not have to express the 10 ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: Do you Yes, Your Honor. Next, I want to explain to you the 12 affirmative defense of withdrawal as it applies to 13 conspiratorial liability. 14 plan or agreement and avoid liability for any offenses 15 committed after the withdraw. 16 must meet the following requirements: 17 A person may withdraw from a common To be effective, the withdrawal The withdrawal must occur before the offense is 18 committed; the assistance, encouragement, advice, instigation, 19 counsel, command, or procurement given by the person must be 20 effectively countermanded or negated; and the withdrawal must 21 be clearly communicated to the would-be perpetrators or to the 22 appropriate -- or to appropriate law enforcement authorities 23 in time for the perpetrators to abandon the plan or for law UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 31 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 enforcement authorities to prevent the offense. 2 understand these requirements for the affirmative defense of 3 withdrawal? 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: 6 Do you Yes, Your Honor. Counsel, is there a need to clarify or focus Mr. al Darbi onto specific charges? 7 TC [LTC HOSANG]: 8 DDC [LT CHAMP]: 9 MJ [Col ALLRED]: No, Your Honor. No, Your Honor. Mr. al Darbi, do you understand the 10 theory of principal liability and the theory of conspiratorial 11 liability as I have explained them? 12 ACC [MR. AL DARBI]: 13 MJ [Col ALLRED]: 14 Yes. Let's move on to each charged offense. Please look at the specification of Charge I. 15 You have pled guilty to the offense of attacking 16 civilians. 17 in violation of 10 U.S.C. Section 950t(2) are: 18 The elements of the offense of attacking civilians 1. That you, Ahmed Mohammed Ahmed Haza al Darbi, 19 engaged in an attack. 20 "you," I mean "you" in the legal sense that we talked about a 21 moment ago? 22 somewhere else. 23 you are liable for their actions as a principal; Do you understand that when I say Because obviously you were not there, you were But the actual perpetrators were there and UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 32 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2. The object of the attack was a civilian 2 population as such, or individual civilians not taking direct 3 or active part in hostilities -- the crew of the M/V Limburg; 4 3. That you intended the civilian population as 5 such, or individual civilians not taking direct or active part 6 in hostilities to be an object of the attack; 7 4. That you knew or should have known of the 8 factual circumstances that established the civilian status 9 and; 10 11 5. The attack took place in the context of and was associated with hostilities. 12 I want to make sure you understand what "attacking 13 civilians" means by discussing some terms. 14 persons who are not members of an enemy's armed forces, and 15 who do not otherwise engage in hostile acts, meaning those 16 acts which, by their nature and purpose, are intended to cause 17 actual harm to the personnel and equipment of an enemy's armed 18 forces. 19 Civilians are "In the context of and associated with 20 hostilities" means that there is a connection between your 21 actions and the acts for which you are criminally liable under 22 a theory of vicarious liability, which we discussed earlier, 23 and an armed conflict to which the laws of war apply. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 33 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 "Hostilities" means any conflict subject to the 2 laws of war. 3 not limited to time, location, or purpose of the conduct in 4 relation to the armed hostilities. 5 factors, however, may not satisfy the necessary nexus. 6 Such connection or nexus could involve but is The existence of such For example, murder committed between members of 7 the same armed force for reasons of personal gain unrelated to 8 the conflict, even if associated with armed conflict in time 9 and location, is not in the context of armed conflict. 10 An armed conflict may exist without a declaration 11 of war, ongoing mutual hostilities, or confrontation involving 12 a regular national armed force. 13 A single hostile act or attempted act may provide 14 sufficient basis for the nexus so long as its magnitude or 15 severity rises to the level of an armed attack or an act of 16 war, or the number, power, or stated intent or organization of 17 the force with which the actor is associated is such that the 18 act or attempted act is tantamount to an attack by armed 19 force. 20 knowledge or intent that it initiate or contribute to such 21 hostile act or hostilities would satisfy the nexus 22 requirement. 23 Similarly, conduct undertaken or organized with The intent required for this offense precludes its UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 34 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 applicability with regard to collateral damage or death, 2 damage, or injury incident to lawful attack. 3 Mr. al Darbi, I have gone through a lot of legal 4 language. 5 your counsel? Have you discussed all of this legal language with 6 ACC [MR. AL DARBI]: 7 MJ [Col ALLRED]: 8 9 10 Yes, Your Honor. Do you understand all of this that I have just told you? ACC [MR. AL DARBI]: MJ [Col ALLRED]: Yes. Do you understand the elements and 11 definitions as I have read them to you -- do you understand 12 that the elements and definitions as I have read them to you 13 constitute the offense of attacking civilians? 14 ACC [MR. AL DARBI]: 15 MJ [Col ALLRED]: Yes. Mr. al Darbi, I want you to reread the 16 specification of Charge I and tell me when you are done 17 rereading it. 18 ACC [MR. AL DARBI]: 19 MJ [Col ALLRED]: Yes, Your Honor. After reviewing the specification of 20 Charge I and listening to the explanation of the terms used in 21 it, do you believe and admit that these elements and 22 definitions either accurate -- one, accurately describe what 23 you did or, two, accurately describe conduct by others for UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 35 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 which you are criminally liable under the theories of 2 liability I explained to you earlier? 3 ACC [MR. AL DARBI]: 4 MJ [Col ALLRED]: 5 Yes, Your Honor. Just one moment. Mr. al Darbi, I would like to review briefly with 6 you those elements that I have already discussed with you. 7 The first element of the offense that we are discussing, that 8 is of attacking civilians, is that you, the accused, engaged 9 in an attack, and we've described the fact that "you" means 10 you in the legal sense and it may cover both actual 11 perpetrators -- it may also cover actual perpetrators who were 12 there and that you are -- let me rephrase that. 13 The first element is that you engaged in an 14 attack, and when I refer to that element, we understand that 15 when I say "you," I mean you in a legal sense that we've been 16 talking about earlier, because obviously you were not there 17 and you were somewhere else. 18 perpetrators" -- but the actual perpetrators were there and 19 you are liable for their actions as a principal. 20 21 By the term "actual Having phrased it thus, do you agree that you engaged in an attack? 22 ACC [MR. AL DARBI]: 23 MJ [Col ALLRED]: Can you repeat again, please? If you would like to take a moment to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 36 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 discuss matters with your counsel, I will give you a moment to 2 do that. 3 well as, Counsel, talk to your client. 4 I will repeat anything you would like repeated as CDC [MR. KASSEM]: Your Honor, we would appreciate your 5 repeating it a minute after we confer with our client. 6 perhaps if you slow down a bit because I believe there was an 7 interpretation issue. 8 9 And Thank you, Your Honor. MJ [Col ALLRED]: Okay, thank you. Let me -- Mr. al Darbi, before you confer, let me just tell you I intend 10 to just walk back through those elements one at a time and 11 discuss with you whether you believe that you did, in fact, 12 commit each of those elements. 13 14 15 Counsel, did you want to talk first? CDC [MR. KASSEM]: We'll just confer with Mr. al Darbi, Your Honor. 16 MJ [Col ALLRED]: 17 CDC [MR. KASSEM]: 18 Go ahead. Thank you. Your Honor, we're ready to proceed. And perhaps 19 just in the interest of making sure that everything gets 20 through, if we could maybe slow it down a bit more than we 21 already are. 22 MJ [Col ALLRED]: 23 CDC [MR. KASSEM]: That will be fine. Thank you, Your Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 37 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col ALLRED]: The first element I was asking you 2 about, Mr. Darbi, is this: 3 Mr. al Darbi, engaged in an attack. 4 mean you in the legal sense that includes vicarious liability. 5 6 And when I say "you," I Do you agree that you engaged in an attack in that sense? 7 ACC [MR. AL DARBI]: 8 MJ [Col ALLRED]: 9 Element No. 1 is that you, Yes. Do you agree that the object of the attack -- do you agree that the object of the attack was a 10 civilian population and that that civilian -- or civilians not 11 taking direct part in hostilities, namely, the crew of the 12 M/V Limburg? 13 14 15 CDC [MR. KASSEM]: Your Honor, could you repeat the question, please? MJ [Col ALLRED]: Yes. Do you agree that the object of 16 the attack was a civilian population or individual civilians 17 not taking direct part in active hostilities, namely, the crew 18 of the M/V Limburg? 19 ACC [MR. AL DARBI]: 20 MJ [Col ALLRED]: Yes. Do you agree that you, in the legal 21 sense, including vicarious liability, intended the civilian 22 population or individual civilians not taking part in the 23 hostilities to be the object of an attack? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 38 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ACC [MR. AL DARBI]: 2 MJ [Col ALLRED]: 3 Yes. Do you agree that you knew that the factual circumstances established their civilian status? 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: Yes. Do you agree that the attack took 6 place in the context of and was associated with civilian 7 hostilities -- excuse me, I said that wrong. 8 9 Do you believe that the attack took place in the context of and was associated with hostilities? 10 ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: Yes. I have already gone over the 12 provisions of the stipulation of fact in regards to this 13 offense. 14 Is that still true? And you indicated you agreed with each paragraph. 15 ACC [MR. AL DARBI]: 16 MJ [Col ALLRED]: Yes, Your Honor. Do counsel for either side believe 17 that any further inquiry is warranted with regard to Charge I 18 and its specification? 19 TC [LTC HOSANG]: 20 DDC [LT CHAMP]: 21 MJ [Col ALLRED]: 22 23 No, Your Honor. No, Your Honor. Are we doing okay? Does anyone need a break? CDC [MR. KASSEM]: We're fine, Your Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 39 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col ALLRED]: Trial Counsel? 2 TC [LTC HOSANG]: We're fine, Your Honor. 3 MJ [Col ALLRED]: Court reporter, are you okay? 4 Please look now at the specification of Charge II. 5 You have pled guilty to an offense of attacking civilian 6 objects. 7 objects in violation of 10 U.S.C. Section 950t(3) are: 8 9 The elements of the offense of attacking civilian 1. That you engaged in an attack. Again, do you understand that when I say "you," I mean "you" in the legal 10 sense? 11 somewhere else, but the actual perpetrators were there, and 12 you are liable for their actions as a principal; 13 Because obviously you were not there, you were 2. The object of the attack was civilian 14 property, that is property that was not a military objective, 15 in this case the M/V Limburg, a civilian oil tanker owned by a 16 civilian entity and crewed by civilians; 17 18 19 20 21 22 23 3. That you intended such civilian property, the M/V Limburg, to be the object of the attack; 4. That you knew or should have known that the M/V Limburg was not a military objective and; 5. The attack took place in the context of and was associated with hostilities. Now, I have defined for you certain terms that are UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 40 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 included in this specification of Charge II when I spoke with 2 you about the specification of Charge I. 3 the term "civilians," "in the context of and associated with 4 hostilities" and "hostilities." 5 definitions in Charge II as they did in Charge I. 6 desire that I repeat those definitions for you here? 7 ACC [MR. AL DARBI]: 8 MJ [Col ALLRED]: 9 I defined for you They have the same Do you No, Your Honor. I'm now going to explain a new term and provide a relevant definition. "Military objective" means 10 those objects during hostilities, which, by their nature, 11 location, purpose or use, effectively contribute to the 12 enemy's war-fighting or war-sustaining capability and whose 13 total or partial destruction, capture or neutralization would 14 constitute a military advantage to the attacker under the 15 circumstances at the time of the attack. 16 Counsel, do you need some time? 17 18 CDC [MR. KASSEM]: minutes. A break would be appreciated. 19 MJ [Col ALLRED]: 20 CDC [MR. KASSEM]: 21 22 23 Yes, Your Honor, we'll take a few In place here? In place is fine. Thank you, Your Honor. MJ [Col ALLRED]: Okay. Take what time you need. [Pause.] UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 41 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 CDC [MR. KASSEM]: Your Honor, we're prepared to 2 proceed. 3 clarification on the record on his behalf. Mr. al Darbi would like us to just make a 4 MJ [Col ALLRED]: 5 CDC [MR. KASSEM]: Go ahead. If we may proceed? And the 6 clarification is the following: 7 attack on the Limburg occurred, Mr. al Darbi wants it to be 8 clear that he was already in custody at that time. 9 MJ [Col ALLRED]: 10 MJ [Col ALLRED]: Understood. CDC [MR. KASSEM]: 11 That at the time that the Thank you, Your Honor. Just as a summary, it's my 12 understanding as I accept this guilty plea that we are 13 proceeding primarily under a theory of vicarious liability and 14 that Mr. al Darbi was not present, did not actually physically 15 take part in the attacks, but that he is guilty under the 16 theories of vicarious liability which we have discussed so 17 far. 18 Do you agree to that, Defense Counsel and Mr. al Darbi? ACC [MR. AL DARBI]: Yes, I agree, and I agree to 19 everything that the judge has said. 20 that during the attack I was already detained at that time. 21 MJ [Col ALLRED]: 22 ACC [MR. AL DARBI]: 23 MJ [Col ALLRED]: Understood. I just want to clarify Thank you, Mr. al Darbi. For four months. Thank you. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 42 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ACC [MR. AL DARBI]: 2 MJ [Col ALLRED]: Thank you, Your Honor. Now, I was giving you some 3 definitions, and I was explaining in regard to the elements of 4 the specification under Charge II that certain definitions had 5 already been given to you when we talked about Charge I, and I 6 was explaining that new definitions apply when we talk about 7 Charge II. 8 9 One of those new definitions, a new definition that applies here under Charge II is "military objective," 10 which means those objects during hostilities which by their 11 nature, location, purpose or use, effectively contribute to 12 the enemy's war-fighting or war-sustaining capability and 13 whose total or partial destruction, capture, or neutralization 14 would constitute a military advantage to the attacker under 15 the circumstances at the time of the attack. 16 As with the charge of attacking civilians, the 17 intent required for this offense precludes its applicability 18 with regard to collateral damage or death, damage or injury 19 incident to a lawful attack. 20 As I previously instructed, this offense requires 21 proof beyond reasonable doubt that you knew or should have 22 known that the property which was the object of the attack was 23 not a military objective. In this respect, the term "should UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 43 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 have known" means that the facts and circumstances were such 2 that a reasonable person in your position would have had the 3 relevant knowledge or awareness that the property was not a 4 military objective. 5 Again, I have given you a great deal of legal 6 language. 7 and do you understand the elements and definitions as I have 8 given them to you? 9 10 Have you discussed all of this with your attorneys, ACC [MR. AL DARBI]: MJ [Col ALLRED]: Yes, Your Honor. Mr. al Darbi, I want you to read the 11 specification of Charge II and tell me when you are done 12 reading it. 13 Have you finished reading it? 14 ACC [MR. AL DARBI]: 15 MJ [Col ALLRED]: Yes. After reviewing the specification of 16 Charge II, do you believe and admit that these elements and 17 definitions either, 1, accurately describe what you did, or 2, 18 accurately describe conduct by others for which you are 19 criminally liable under the theories of liability I explained 20 to you earlier? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes, Your Honor. Do you agree that someone engaged in an attack as described in that charge and specification? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 44 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 CDC [MR. KASSEM]: Your Honor, if you wouldn't mind 2 restating the question. I believe the translation wasn't 3 completely clear. 4 MJ [Col ALLRED]: Okay. Do you agree that someone 5 engaged in the attack described in Specification 2 of the 6 charge -- excuse me, in Specification 1 of Charge II -- in 7 the -- let me say that again. 8 apologize. 9 10 I have misspoken myself, and I Do you agree that someone engaged in the attack described in the specification of Charge II? 11 ACC [MR. AL DARBI]: 12 MJ [Col ALLRED]: 13 Yes, I was in jail, so... Okay, understood. Do you agree -- Mr. al Darbi, you say you weren't 14 there, but have you talked with your defense? 15 evidence? 16 described there? Have you seen Do you agree that this attack occurred as it was 17 ACC [MR. AL DARBI]: 18 MJ [Col ALLRED]: Yes. Do you agree that the object of the 19 attack was civilian property, that is the M/V Limburg, a 20 civilian oil tanker? 21 CDC [MR. KASSEM]: 22 here with the interpretation. 23 questions. Your Honor, we're having an issue We can't really understand the I'm sorry. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 45 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col ALLRED]: Fairly simple question, Mr. al Darbi. 2 Do you believe that the property that was attacked was 3 civilian property, that is the M/V Limburg oil tanker? 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: 6 Do you believe that the M/V Limburg was intentionally attacked? 7 ACC [MR. AL DARBI]: 8 MJ [Col ALLRED]: 9 10 should have been known that the M/V Limburg was a military objective -- excuse me ---ACC [MR. AL DARBI]: 12 MJ [Col ALLRED]: 14 15 No. ---- let me rephrase that. I appreciate your ---Do you believe that it was known or should have been known that the M/V Limburg was not a military objective? 16 ACC [MR. AL DARBI]: 17 MJ [Col ALLRED]: 18 Yes, Your Honor. Do you believe that it was known or 11 13 Yes, Your Honor. Yes, Your Honor. Do you believe that this attack took place in the context of and was associated with hostilities? 19 ACC [MR. AL DARBI]: 20 MJ [Col ALLRED]: Yes. Do you agree that although you were 21 not physically there during the attack, that you are 22 responsible under the theories of vicarious liabilities as I 23 have explained them to you? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 46 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ACC [MR. AL DARBI]: 2 MJ [Col ALLRED]: Yes. Now, I have already gone over the 3 provisions of the stipulation of fact in regards to this 4 offense, and you indicated that you agreed with each 5 paragraph. Is that still true? 6 ACC [MR. AL DARBI]: 7 MJ [Col ALLRED]: 8 further inquiry is required? 9 TC [LTC HOSANG]: 10 DDC [LT CHAMP]: 11 MJ [Col ALLRED]: Yes, Your Honor. Does either counsel believe that any No, Your Honor. No, Your Honor. Mr. al Darbi, please take a look now 12 at the specification of Charge III. 13 guilty to an offense of hazarding a vessel. 14 the offense of hazarding a vessel in violation of 10 U.S.C. 15 Section 950t(23) are: 16 17 18 19 20 21 22 23 1. There you have pled The elements of That you seized, exercised control over, or endangered the safe navigation of a vessel; 2. That you intended to seize, exercise control over, or endanger the safe navigation of such vessel; 3. The vessel was not a legitimate military objective; and 4. The conduct took place in the context of and was associated with hostilities. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 47 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 I have given you as definitions the terms "in the 2 context of and in association with hostilities" and 3 "hostilities." 4 as they did in Charge I. They have the same definitions in Charge III Do you understand that? 5 ACC [MR. AL DARBI]: 6 MJ [Col ALLRED]: Yes, Your Honor. I am now going to explain some new 7 terms and provide relevant definitions. 8 of control, or endangerment required by military necessity or 9 against a lawful military objective undertaken by military 10 forces of a state in the exercise of their official duties 11 would not satisfy the wrongfulness requirement for this crime. 12 13 A seizure, exercise Hazard -- need a moment, defense? CDC [MR. KASSEM]: Your Honor, I think there was another 14 change of the guard with the commission interpreters. 15 wouldn't mind repeating that, just that last one, we would 16 appreciate it. 17 MJ [Col ALLRED]: 18 INT: 19 MJ [Col ALLRED]: If you Very well. Your Honor, could you please repeat your question? Sure, I will go back to the last 20 paragraph, and if we need more, please let me know. 21 you've got your interpreter assisting there to make sure that 22 you get all the interpretation. 23 CDC [MR. KASSEM]: Thank you, Your Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 48 I see UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [Col ALLRED]: A seizure, exercise of control or 2 endangerment required by military necessity or against a 3 lawful military objective undertaken by military forces of a 4 state in the exercise of their official duties would not 5 satisfy the wrongfulness requirement for this crime. 6 "Hazard" means to put in danger or -- danger of 7 loss or injury. 8 collision, stranding, running upon a shoal or a rock, or by 9 other cause, is conclusive evidence that the vessel was Actual damage to or loss of a vessel by 10 hazarded but not of the fact of culpability on the part of any 11 particular person. 12 "Hazarding a vessel" includes shooting at it with 13 missiles, firearms, laser devices, or attacking it with other 14 instruments intended to endanger the safe navigation of the 15 vessel. 16 An accused may not be found guilty of this offense 17 if the endangerment to the safe navigation of the vessel was 18 required by military necessity or if it was against a lawful 19 military objective and was undertaken by forces of a state in 20 the exercise of their official duties. 21 "Military necessity" means those measures not 22 otherwise forbidden by the law of armed conflict that are used 23 to secure complete submission of the enemy as soon as UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 49 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 possible. Do you understand the elements and definitions as 3 I have given them to you? 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: Yes, Your Honor. Mr. al Darbi, do you agree that 6 someone seized, exercised control over, or endangered the safe 7 navigation of a vessel? 8 ACC [MR. AL DARBI]: 9 MJ [Col ALLRED]: Yes, Your Honor. Do you agree that someone intended to 10 seize, exercise control over, or endanger the navigation of 11 such a vessel? 12 ACC [MR. AL DARBI]: 13 MJ [Col ALLRED]: 14 Do you agree that the vessel was not a legitimate military objective? 15 ACC [MR. AL DARBI]: 16 MJ [Col ALLRED]: 17 Yes. Yes, Your Honor. Do you agree that the conduct took place in the context of and was associated with hostilities? 18 ACC [MR. AL DARBI]: 19 MJ [Col ALLRED]: Yes, Your Honor. Do you agree that under the concepts 20 of vicarious liability as I have explained them to you, that 21 you are legally responsible for these actions? 22 ACC [MR. AL DARBI]: 23 MJ [Col ALLRED]: Yes. Mr. al Darbi, I want you to reread UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 50 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Charge III and tell me when you are done reading it. 2 ACC [MR. AL DARBI]: 3 MJ [Col ALLRED]: Yes, Your Honor, I've finished. After reviewing Charge III, do you 4 believe and admit that these elements and definitions either, 5 1, accurately describe what you did, or 2, accurately describe 6 the conduct by others for which you are criminally liable 7 under the theories of liability I explained to you earlier? 8 ACC [MR. AL DARBI]: 9 MJ [Col ALLRED]: Yes, Your Honor. Now, I have already gone over the 10 provisions of the stipulation of fact in regards to this 11 offense and you indicated that you agreed with each paragraph. 12 Is that still true? 13 ACC [MR. AL DARBI]: 14 MJ [Col ALLRED]: 15 further inquiry is required? 16 TC [LTC HOSANG]: 17 DDC [LT CHAMP]: 18 MJ [Col ALLRED]: 19 Yes. Do either counsel believe that any No, Your Honor. No, Your Honor. Mr. al Darbi, are you able to continue? 20 ACC [MR. AL DARBI]: 21 MJ [Col ALLRED]: 22 and its specification. 23 terrorism, a violation of 10 U.S.C. 950t(24) are: Yes, Your Honor. Please take a look now at Charge IV The elements of the offense of UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 51 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 1. That you intentionally killed or inflicted 2 great bodily harm on one or more protected persons or engaged 3 in an act that evidenced a wanton disregard for human life; 4 2. That you did so in a manner calculated to 5 influence or affect the conduct of government or civilian 6 population by intimidation or coercion, or to retaliate 7 against government conduct and; 8 9 10 11 3. The killing, harm or wanton disregard for human life took place in the context of and was associated with hostilities. Do I need to review for you once again the terms 12 of "in the context of and association with hostilities" and 13 "hostilities"? 14 ACC [MR. AL DARBI]: 15 MJ [Col ALLRED]: No, Your Honor. They have the same definitions as in 16 Charge IV -- they have the same definitions in Charge IV as 17 they did in Charge I. 18 and provide relevant definitions. 19 Now I'm going to explain some new terms This offense includes the concept of causing death 20 or bodily harm, even if indirectly. 21 conduct be wrongful for this crime necessitates that the 22 conduct establishing this offense not constitute an attack 23 against a lawful military objective undertaken by military The requirement that the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 52 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 forces of a state in the exercise of their official duties. Death or infliction of bodily harm is a required 3 element for this offense. 4 indirect result of the accused's action. 5 6 Again, Mr. al Darbi, much legal language. Have you discussed all of this with your counsel? 7 ACC [MR. AL DARBI]: 8 MJ [Col ALLRED]: 9 It is sufficient if this is an Yes, Your Honor. Do you understand the elements and definitions as I have read them to you in this charge? 10 ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: Yes. Do you agree that someone 12 intentionally killed or inflicted great bodily harm on one or 13 more protected persons or engaged in an act that evidenced a 14 wanton disregard for human life as described in this 15 specification? 16 ACC [MR. AL DARBI]: 17 MJ [Col ALLRED]: Yes. Do you agree that someone did so in a 18 manner calculated to influence or affect the conduct of 19 government or civilian population by intimidation or coercion 20 or to retaliate against government conduct? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes, Your Honor. And do you agree that the killing or harm or wanton disregard for human life took place in the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 53 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 context of and was associated with hostilities? 2 ACC [MR. AL DARBI]: 3 MJ [Col ALLRED]: Yes, Your Honor. Do you agree that within the meaning 4 of "vicarious liability" as I have explained it to you, you 5 are responsible for the activities that are described in this 6 specification? 7 ACC [MR. AL DARBI]: 8 MJ [Col ALLRED]: 9 Yes, Your Honor. Mr. al Darbi, I want you to reread Charge IV and tell me when you are done reading it. 10 ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: Yes, Your Honor. After reviewing Charge IV, do you 12 believe and admit that the elements and definitions either, 1, 13 accurately describe what you did, or 2, accurately describe 14 conduct by others for which you are criminally liable under 15 the theories of liability I explained to you earlier? 16 ACC [MR. AL DARBI]: 17 MJ [Col ALLRED]: Yes, Your Honor. Mr. al Darbi, I have already gone over 18 the provisions of the stipulation of fact in regard to this 19 offense, and you indicated that you agreed with each 20 paragraph. Is that still true? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes, Your Honor. Do either counsel believe any further inquiry is required? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 54 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 TC [LTC HOSANG]: 2 DDC [LT CHAMP]: 3 MJ [Col ALLRED]: 4 No, Your Honor. No, Your Honor. Now, Mr. -- do you need a moment? Now, Mr. al Darbi, earlier I gave you an 5 explanation or definition of "affirmative defense of 6 withdrawal," do you remember those requirements and the law 7 that I explained to you earlier? 8 ACC [MR. AL DARBI]: 9 MJ [Col ALLRED]: Yes, Your Honor. With respect to the four charges that 10 we have just discussed, have you discussed with your defense 11 counsel whether you have a possible defense of withdrawal? 12 ACC [MR. AL DARBI]: 13 MJ [Col ALLRED]: Yes, Your Honor. Given the requirements for effective 14 withdrawal that I explained to you earlier, do you admit that 15 you did not effectively withdraw from the common plan or 16 agreement to commit these four offenses? 17 ACC [MR. AL DARBI]: 18 MJ [Col ALLRED]: Yes, Your Honor. Defense Counsel, do you agree on the 19 facts of this case that Mr. al Darbi did not withdraw from the 20 common plan or agreement to commit these four offenses? 21 DDC [LT CHAMP]: 22 MJ [Col ALLRED]: 23 specification. Yes, Your Honor. Now let's look at Charge V and its You have pled guilty to two specifications of UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 55 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 attempting to commit an offense under the Military Commissions 2 Act, specifically hazarding a vessel and terrorism. 3 underlying effects of each specification are -- 4 5 INT: Your Honor, the interpreter would request that you go a little bit slower, please. 6 MJ [Col ALLRED]: 7 INT: 8 MJ [Col ALLRED]: 9 10 Okay, slow down? Yes, please. I might just note here that the device that would suggest to me whether I should slow or not slow has not been functioning. 11 12 The It is now functioning. I think we may be back on track. 13 Mr. al Darbi, you have pled guilty to two 14 specifications of attempting to commit an offense under the 15 Military Commissions Act, specifically hazarding a vessel and 16 terrorism. 17 different from the underlying facts discussed in Charge III 18 and Charge IV. 19 The underlying facts of each specification are Please take a look now at Charge V. The elements 20 for the offense of attempts in violation of 10 U.S.C. 950t(28) 21 are: 22 1. That you did a certain overt act; 23 2. That the act was done with specific intent to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 56 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 commit a certain offense under Chapter 47A of Title 10, United 2 States Code, those offenses being hazarding a vessel and 3 terrorism. 4 The definitions and elements I instructed you on 5 earlier in connection with Charge III and Charge IV apply 6 equally here, although the factual predicates, grounds or 7 circumstances, dates and places are different; 8 9 3. preparation and; 10 11 4. The act apparently tended to effect the commission of the intended offense. 12 13 That the act amounted to more than mere Do I need to review the definitions and elements for hazarding a vessel and terrorism again? 14 ACC [MR. AL DARBI]: 15 MJ [Col ALLRED]: No, Your Honor. Do I need to go over once again the 16 terms "in the context of and in association with hostilities" 17 and "hostilities"? 18 ACC [MR. AL DARBI]: 19 MJ [Col ALLRED]: No, Your Honor. I advise you that they have the same 20 definitions in Charge IV as they did earlier, as I gave them 21 to you. 22 23 Now I'm going to explain some new terms and provide relevant definitions. An act done with specific UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 57 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 intent to commit an offense under this chapter, amounting to 2 more than mere preparation and tending, even though failing to 3 effect its commission, is an attempt to commit that offense. 4 Preparation consists of devising or arranging 5 means or measures apparently necessary for the commission of 6 the offense. 7 preparatory steps and is a direct movement toward the 8 commission of the offense. 9 essential to the commission of the offense. The overt act required goes beyond mere The act need not be the last act The combination 10 of specific intent to commit an offense, plus the commission 11 of an act apparently tending to further its accomplishment, 12 constitutes the offense of attempt. 13 To constitute an attempt there must be a specific 14 intent to commit the offense accompanied by an act that tends 15 to accomplish the unlawful purpose. 16 involve knowledge that the offense is, in fact, triable by 17 military commissions. 18 be convicted of an attempt to commit an offense, although it 19 appears at trial that the offense was consummated. 20 21 The intent need not Any person subject to this chapter may Do you understand these terms? CDC [MR. KASSEM]: Your Honor, I don't know if your 22 entire question got through. 23 MJ [Col ALLRED]: Perhaps we should repeat it. Defense, I will gladly repeat anything UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 58 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 that you want repeated and I will carefully go over it. 2 don't you confer with your interpreter there and maybe help 3 guide me to what you would like to have repeated and I will 4 repeat it. 5 ACC [MR. AL DARBI]: 6 MJ [Col ALLRED]: Why Yes, Your Honor. My question was whether you understood 7 all the terms that I have given to you, Mr. al Darbi. 8 discussed with your interpreter and your counsel these terms, 9 do you understand everything that I have given to you? 10 ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: 12 Having Yes, Your Honor. Do you understand the elements and definitions as I've read them to you? 13 ACC [MR. AL DARBI]: 14 MJ [Col ALLRED]: 15 Yes, Your Honor. Just one moment. Defense, are you able to continue? 16 ACC [MR. AL DARBI]: 17 MJ [Col ALLRED]: Yes. Now, Mr. al Darbi, I understand that 18 when the vessel in question was attacked you were not 19 physically present and did not personally attack that vessel, 20 correct? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes, Your Honor. I understand that this charge here, the Specification 1 of this Charge V, suggests that while you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 59 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 may not have been personally there, you did, in fact, have a 2 specific intent that such a vessel would be attacked. 3 true? Is that Did you have such an intent? 4 ACC [MR. AL DARBI]: 5 DDC [LT CHAMP]: Yes, Your Honor. Your Honor, I just want to clarify that 6 this is the attempt charge, so there was no consummated 7 attack. 8 MJ [Col ALLRED]: 9 DDC [LT CHAMP]: 10 MJ [Col ALLRED]: Okay, thank you. Yes, sir. You were not present for 11 any consummated attack -- Mr. al Darbi, let's just be clear 12 here. 13 I understand that you did not -- are not being 14 charged here with any -- actually making any attack yourself, 15 correct? 16 ACC [MR. AL DARBI]: 17 MJ [Col ALLRED]: 18 Yes. Do you agree that you had the specific intent to engage in such an attack, however? 19 ACC [MR. AL DARBI]: 20 MJ [Col ALLRED]: Yes, Your Honor. Do you agree that your behavior with 21 regard to that desired -- let me phrase this again, just one 22 moment. 23 Do you agree that you attempted to endanger the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 60 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 safe navigation of a vessel, not a military objective? 2 ACC [MR. AL DARBI]: 3 MJ [Col ALLRED]: Yes. And that you took the steps described 4 here, that is, that you purchased multiple vessels and a 5 crane, and you obtained visas for a Yemeni attack -- for 6 Yemeni attack operatives, that you did all these things and 7 that you also did the other things listed there in the 8 specification? 9 those activities? Do you agree that you took part in all of 10 ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: Yes. Do you agree that you obtained -- you 12 facilitated training and obtained necessary supplies, hired a 13 crew and a sailing ship, et cetera, in order to help carry out 14 these activities? 15 ACC [MR. AL DARBI]: 16 MJ [Col ALLRED]: 17 Yes, Your Honor. Do you agree that these acts amounted to more than mere preparation? 18 ACC [MR. AL DARBI]: 19 MJ [Col ALLRED]: Yes, Your Honor. And that they apparently tended to 20 carry out the effect of the commission of the intended 21 offense? 22 23 ACC [MR. AL DARBI]: Could the interpreter repeat again, please? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 61 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 MJ [Col ALLRED]: And, Counsel, you may want to help with that legal term. 3 ACC [MR. AL DARBI]: 4 MJ [Col ALLRED]: 5 and its first specification. Yes, Your Honor. Mr. al Darbi, please reread Charge V 6 ACC [MR. AL DARBI]: 7 MJ [Col ALLRED]: Yes. After reviewing Charge V and 8 Specification 1, are you convinced that the elements that I 9 have described for you accurately describe what you did, or 2, 10 accurately describe conduct by others for which you are 11 criminally liable under the theories of liability I explained 12 to you earlier? 13 ACC [MR. AL DARBI]: 14 MJ [Col ALLRED]: 15 Specification 2 of Charge V. 16 1. That you did a certain overt act; 17 2. That the act was done with specific intent to Yes. Let us take a moment and look at Here it is alleged: 18 commit a certain offense under article -- under Chapter 47A of 19 Title 10 United States Code, namely the offense of terrorism; 20 21 22 23 3. The act amounted to more than mere preparation 4. That the act apparently intended to effect the and; commission of the intended offense. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 62 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Do I need to review the definitions and elements of hazarding a vessel and terrorism again? 3 ACC [MR. AL DARBI]: 4 MJ [Col ALLRED]: No, Your Honor. Do you need to go over once again the 5 terms of "in the context of and in association with 6 hostilities"? 7 ACC [MR. AL DARBI]: 8 MJ [Col ALLRED]: 9 No, Your Honor. Those terms have the same definition here in Charge V that they did when I spoke to you earlier. 10 have also given you new terms and definitions when I spoke to 11 you earlier with regard to Specification 1 of Charge V. 12 apply here. I Those Do you desire that I repeat them? 13 ACC [MR. AL DARBI]: 14 MJ [Col ALLRED]: No, Your Honor. Do you agree that you are a subject, a 15 person subject to trial by military commission as an alien 16 unprivileged enemy belligerent? 17 ACC [MR. AL DARBI]: 18 MJ [Col ALLRED]: Yes, Your Honor. Do you believe that in the context of 19 and associated with hostility, you had the specific intent to 20 commit the offense of terrorism as described in 21 Specification 2 of Charge V? 22 ACC [MR. AL DARBI]: 23 MJ [Col ALLRED]: Yes, Your Honor. Do you agree that that attempt -- you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 63 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 attempted an act that could have resulted in an intentional 2 killing or infliction of great bodily harm to one or more 3 protected persons in a manner calculated to influence or 4 affect the conduct of a government or civilian population by 5 intimidation or coercion, and to retaliate against government 6 conduct? Do you agree to that? 7 ACC [MR. AL DARBI]: 8 INT: 9 Your Honor, request to repeat it, the phrase, please, at slower pace. 10 MJ [Col ALLRED]: 11 ACC [MR. AL DARBI]: 12 Okay, I'll go slower. Thank you. I understand you, Judge, and Your Honor ---- 13 MJ [Col ALLRED]: 14 ACC [MR. AL DARBI]: 15 MJ [Col ALLRED]: 16 Yes, Your Honor. You understood. Do you agree? My answer is yes. Thank you. Do you agree that you took the actions described, 17 that is, purchasing a vessel and a crane, obtaining visas, 18 training Yemeni operatives, obtaining supplies, hiring crews 19 and sailing a ship towards Yemen in order to carry out this 20 attack on civilian oil tankers? 21 DDC [LT CHAMP]: Your Honor, just to clarify, the charge 22 sheet has been updated to say "facilitating the training of 23 the operatives." UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 64 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 MJ [Col ALLRED]: it. Okay, facilitate the training. Got Okay. 3 Do you understand my question? 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: Yes, Your Honor. Do you understand the elements and 6 definitions as I have read them to you with regard to 7 Specification 2 of Charge V? 8 ACC [MR. AL DARBI]: 9 MJ [Col ALLRED]: 10 Yes, Your Honor. I would like you now to reread Specification 2 of Charge V. 11 After reading the specification, Specification 2 12 of Charge V, do you believe and admit that the elements and 13 definitions to either, 1, accurately describe what you did, or 14 2, accurately describe the conduct by others for which you are 15 criminally liable under the theories of liability I explained 16 to you earlier? 17 ACC [MR. AL DARBI]: 18 MJ [Col ALLRED]: Yes, Your Honor. Now, I've gone over the provisions of 19 the stipulation of fact with regard to both specifications of 20 Charge V. 21 paragraphs that apply. You indicated that you agreed with both, with the Is that still true? 22 ACC [MR. AL DARBI]: 23 MJ [Col ALLRED]: Yes, Your Honor. Does either counsel believe any UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 65 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 further inquiry is warranted with regard to Charge V and its 2 specifications? 3 TC [LTC HOSANG]: 4 DDC [LT CHAMP]: 5 MJ [Col ALLRED]: No, Your Honor. No, Your Honor. Let's talk a little bit about maximum 6 punishment. 7 Manual for Military Commissions, notwithstanding any 8 limitations set forth in Appendix A of your pretrial 9 agreement, the maximum punishment for the offenses to which Mr. al Darbi, do you understand that under the 10 you have entered a plea of guilty is life imprisonment and a 11 fine? 12 ACC [MR. AL DARBI]: 13 MJ [Col ALLRED]: Counsel, do you agree? 14 TC [LTC HOSANG]: Yes, Your Honor. 15 DDC [LT CHAMP]: 16 MJ [Col ALLRED]: Yes, Your Honor. Yes, Your Honor. Counsel, I understand that there is a 17 pretrial agreement in this case. 18 PTA, is marked as Appellate Exhibit 010 and Appendix A as 19 Appellate Exhibit 011. 20 the counsel table, Defense Counsel? 21 DDC [LT CHAMP]: 22 MJ [Col ALLRED]: 23 The pretrial agreement, or Do you have a copy of that there at Yes, Your Honor. Mr. al Darbi, take a look at page 8 of the PTA and page 2 of Appendix A. Is that your signature on UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 66 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 these pages? 2 ACC [MR. AL DARBI]: 3 MJ [Col ALLRED]: 4 Yes, Your Honor. Just one moment. Did your counsel explain both these documents to 5 you thoroughly before you signed them, and do you understand 6 the contents of your pretrial agreement? 7 ACC [MR. AL DARBI]: 8 MJ [Col ALLRED]: 9 Did anyone force you in any way to enter into this agreement? 10 ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: 12 No, Your Honor. Does this agreement contain all the understandings or agreements that you have in the case? 13 ACC [MR. AL DARBI]: 14 MJ [Col ALLRED]: 15 Yes, Your Honor. Can you repeat one more, please? Yes. Does this agreement contain all the understandings or agreements that you have in the case? 16 ACC [MR. AL DARBI]: 17 MJ [Col ALLRED]: Yes, Your Honor. Has anyone made any promises to you 18 that are not written into this agreement in an attempt to get 19 you to plead guilty? 20 ACC [MR. AL DARBI]: 21 MJ [Col ALLRED]: No, Your Honor. Counsel, are these two Appellate 22 Exhibits, AE 010 and AE 011, the full and complete agreement 23 in this case, and are you satisfied that there are no other UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 67 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 agreements? 2 TC [LTC HOSANG]: 3 DDC [LT CHAMP]: 4 MJ [Col ALLRED]: Yes, Your Honor. Yes, Your Honor. Mr. al Darbi, as a general rule, in a 5 pretrial agreement, you agree to enter pleas of guilty and in 6 return the convening authority agrees to take some favorable 7 action in your case, usually in the form of limiting the 8 sentence he will approve. 9 ACC [MR. AL DARBI]: 10 MJ [Col ALLRED]: Do you understand this? Yes, Your Honor. The law requires that I discuss the 11 conditions of your PTA with you. 12 non-numbered paragraph. 13 14 1. Take a look at the first It states four things: That you are the accused under military commission charges dated 16 December 2013; 15 2. That you have read the charges against you; 16 3. That your counsel, Professor Kassem and 17 18 Lieutenant Champ, have fully explained them to you and; 4. That you understand the charges and 19 specifications and that you are aware that you have a legal 20 and moral right to plead not guilty and to leave the 21 prosecution with the burden of proving your guilt beyond a 22 reasonable doubt by legal and competent evidence. 23 Do you understand and agree to this? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 68 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ACC [MR. AL DARBI]: 2 MJ [Col ALLRED]: Yes, Your Honor. The agreement states that you 3 understand that you have a right to plead not guilty and that, 4 in consideration of the agreement by the convening authority 5 to approve a sentence in accord with the limitations set forth 6 in Appendix A of this agreement, you offer to plead guilty to 7 all charges and their specifications. 8 ACC [MR. AL DARBI]: 9 MJ [Col ALLRED]: 10 Yes, Your Honor. Do you understand and agree to these provisions? 11 ACC [MR. AL DARBI]: 12 MJ [Col ALLRED]: Yes, Your Honor. In paragraph 16 it states that you 13 agree to enter into or that you have entered into a 14 stipulation of fact which we have already discussed, and that 15 you understand and you have an absolute right to refuse to 16 enter into a stipulation, but that you knowingly and 17 voluntarily agree to enter into the stipulation, that the 18 stipulation will be used to determine your guilt and to 19 determine an appropriate sentence. 20 rights and do you agree to that provision? 21 22 23 INT: Do you understand these Your Honor, could you please repeat the sentence and please do us a favor and go slower. MJ [Col ALLRED]: That would be great. Certainly. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 69 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 In paragraph 16 it says you have entered into a 2 stipulation of fact, including Attachment A. 3 discussed that stipulation of fact. 4 understand that you have an absolute right to refuse to enter 5 into the stipulation and that you knowingly and voluntarily 6 agree to enter into the stipulation, and that the stipulation 7 will be used to determine your guilt and to determine an 8 appropriate sentence. 9 10 We've already It indicates that you Do you understand these rights and do you agree to that provision? 11 ACC [MR. AL DARBI]: 12 MJ [Col ALLRED]: Yes, Your Honor. Now, I'm not going to go through each 13 paragraph in total because you've already had the opportunity 14 to be explained in detail what each provision means. 15 there are a few things I would like to highlight. 16 However, In paragraph 9, you waive all rights to appeal 17 this conviction, except as provided in an agreement -- in the 18 agreement, exception, sentence imposed in violation of 19 limitations in Appendix A, see OTP page 3. 20 Do you agree with these provisions? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes, Your Honor. In paragraph 10 of the agreement, it states that you voluntarily waive and give up any right to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 70 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 attack the conviction or sentence except as provided in the 2 agreement. Do you agree with this provision? 3 ACC [MR. AL DARBI]: 4 MJ [Col ALLRED]: Yes, Your Honor. Paragraph 22 states that you 5 understand the prosecution and defense may call witnesses and 6 present evidence, subject to the rulings of this commission, 7 regarding matters in aggravation and mitigation for sentencing 8 consideration. 9 to your rights during the sentencing portion of this hearing? Do you understand and agree to this in regards 10 ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: Yes, Your Honor. In paragraph 23 you agree not to offer 12 live testimony of any detainee held at the U.S. naval station 13 Guantanamo Bay. 14 agree to this in regards to your rights during the sentencing 15 portion of this hearing? Do you understand and agree to this -- and 16 ACC [MR. AL DARBI]: 17 MJ [Col ALLRED]: 18 Yes, Your Honor. Just one moment. In paragraph 11 of the pretrial agreement you 19 state that you will not initiate or support any litigation or 20 challenge in any forum against the United States with regard 21 to your capture, initial detention, prosecution, conviction, 22 or post-conviction confinement. 23 agree to this? Do you understand this and UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 71 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ACC [MR. AL DARBI]: 2 MJ [Col ALLRED]: Yes, Your Honor. You have further agreed that following 3 the acceptance of your guilty plea by this military 4 commission, you will direct your counsel to submit a motion to 5 withdraw or dismiss without prejudice any pending litigation 6 regarding your capture, detention, confinement conditions, or 7 alien unlawful enemy combatant or alien unprivileged enemy 8 belligerent status. 9 terms? Do you understand and agree to these 10 ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: Yes, Your Honor. Do you understand that when the 12 convening authority accepted your offer, it became a binding 13 agreement? 14 ACC [MR. AL DARBI]: 15 MJ [Col ALLRED]: Yes, Your Honor. Do you understand that you have 16 asserted in the pretrial agreement that you are, in fact, 17 guilty of the offenses to which you are pleading guilty? 18 ACC [MR. AL DARBI]: 19 MJ [Col ALLRED]: 20 Do you understand and agree to this provision of your pretrial agreement? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes, Your Honor. Yes, Your Honor. The pretrial agreement also states that you understand that the agreement permits the government UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 72 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 to avoid presentation in court of sufficient evidence to prove 2 your guilt; that your offer to plead guilty is in part because 3 it will be in your best interest, that the convening authority 4 grant you relief as set out in this agreement; that you waive 5 your right to a trial of the facts and to be confronted by 6 witnesses against you; and that you waive your trial to avoid 7 self-incrimination insofar as a plea of guilty will 8 incriminate you. 9 10 Do you understand and agree to these terms? ACC [MR. AL DARBI]: MJ [Col ALLRED]: Yes, Your Honor. With this offer to plead guilty, you 11 have also agreed that you are satisfied with your defense 12 counsel and their advice regarding this offer; that you 13 consider your counsel competent to represent you in this 14 military commission; and that no person or persons made any 15 attempt to force or coerce you into making this offer or to 16 plead guilty. 17 of your pretrial agreement? Do you understand and agree to this provision 18 ACC [MR. AL DARBI]: 19 MJ [Col ALLRED]: Yes, Your Honor. Your agreement also states that your 20 counsel have fully advised you of the nature of the charges 21 against you, of the possibility of your defending against 22 them, of any defenses that might apply, of the effect of the 23 guilty plea that you have offered to make, and that you fully UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 73 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 understand their advice and meaning, effect, and consequences 2 of -- their advice and the meaning, effect, and consequences 3 of this plea. Do you still agree with these provisions? 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: Yes, Your Honor. Do you understand that under the 6 military commission's laws, the convening authority's 7 signature and your signature on these documents make this 8 offer into an agreement binding upon the United States 9 government and binding upon you? 10 ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: Yes, Your Honor. Do you understand that you may request 12 to withdraw from your guilty pleas at any time before sentence 13 is announced, and that if you have a good reason for doing so, 14 your request will be granted and this agreement will be 15 canceled? 16 ACC [MR. AL DARBI]: 17 MJ [Col ALLRED]: 18 ACC [MR. AL DARBI]: 19 MJ [Col ALLRED]: I wasn't with you, sorry. Okay, I'll repeat this. Please. Do you understand that you may request 20 to withdraw from your guilty pleas at any time before sentence 21 is announced? 22 ACC [MR. AL DARBI]: 23 MJ [Col ALLRED]: Yes, Your Honor. And that if you have a good reason for UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 74 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 doing so, your request will be granted and this agreement will 2 be canceled? 3 ACC [MR. AL DARBI]: 4 MJ [Col ALLRED]: Yes, Your Honor. Do you understand that this agreement 5 will also be canceled and of no effect if your guilty pleas 6 are not accepted if your pleas are modified or changed to a 7 not guilty plea, or to a guilty plea to a lesser offense, or 8 if either party withdraws from this agreement before trial? 9 10 ACC [MR. AL DARBI]: MJ [Col ALLRED]: Yes, Your Honor. Do you understand that the convening 11 authority's obligation to approve a sentence no greater than 12 that provided in this agreement, including Appendix A, may be 13 canceled if you commit any offense chargeable under the 14 Military Commissions Act or fail to otherwise fulfill the 15 terms of this agreement between the time the sentence is 16 announced and the time the sentence is approved? 17 ACC [MR. AL DARBI]: 18 MJ [Col ALLRED]: Yes. Do you understand that if this 19 agreement is canceled for any reason, your offer to plead 20 guilty cannot be used against you in any way at -- in any way 21 or at any time to establish your guilt? 22 ACC [MR. AL DARBI]: 23 MJ [Col ALLRED]: Yes, Your Honor. Do you agree that no other promises UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 75 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 have been made by the convening authority or any other person 2 which may potentially affect your offer to plead guilty. 3 ACC [MR. AL DARBI]: 4 MJ [Col ALLRED]: 5 No. Let me state that again. Do you agree ---- 6 ACC [MR. AL DARBI]: 7 MJ [Col ALLRED]: Yes, I do, Your Honor. Okay. Do you further understand that 8 the convening authority does not have authority to control the 9 location of confinement, the conditions of confinement, or 10 whether such confinement is served in the military or federal 11 institutions, your release from military or federal 12 confinement after taking formal action of the findings and 13 sentence of the military commissions or bind the 14 government ---- 15 INT: 16 MJ [Col ALLRED]: I'm sorry, could you repeat that, please? Okay. I'm going to go through, it's a 17 fairly lengthy section here, and we'll try to take that slow, 18 Mr. al Darbi. 19 Do you further understand that the convening 20 authority does not have authority to control the location of 21 confinement, the conditions of confinement, or whether such 22 confinement is served in the military or federal institutions, 23 your release from military or federal confinement after taking UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 76 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 formal action of the findings and sentence of the military 2 commissions or bind the government of the United States to 3 release you from law of war detention? 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: Yes, Your Honor. What the convening authority will do 6 is make a recommendation to those people who do have authority 7 to control the conditions of your confinement that you be 8 confined in accordance with the agreement here. 9 understand that this is only a recommendation? 10 ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: Do you Yes, Your Honor. That said, while the convening 12 authority cannot control where you are physically kept or the 13 conditions you are kept under, what this paragraph says is 14 that he will make a recommendation to those people who do have 15 the power, which I think is currently the Commander of 16 JTF-GTMO, that you be confined in accordance with this 17 recommendation here, but do you understand that this is only a 18 recommendation? 19 ACC [MR. AL DARBI]: 20 MJ [Col ALLRED]: Yes, Your Honor. In regards to your pretrial agreement, 21 you have also agreed that if I find your pleas provident, the 22 sentencing hearing will be held in three years and six months. 23 Do you understand that? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 77 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ACC [MR. AL DARBI]: 2 MJ [Col ALLRED]: 3 Yes, Your Honor. Do you agree to this provision as part of your offer to plead guilty? 4 ACC [MR. AL DARBI]: 5 MJ [Col ALLRED]: Yes, Your Honor. Let us now focus on Appendix A of your 6 pretrial agreement. 7 there is an Appendix A which sets out the specific 8 requirements and limitations for both you and the convening 9 authority. 10 Mr. al Darbi, as part of your offer, Do you have a copy of that document in front of you? 11 ACC [MR. AL DARBI]: 12 MJ [Col ALLRED]: 13 Please take a look at page 2. Yes, Your Honor. Appendix A consists of two pages. 14 ACC [MR. AL DARBI]: 15 MJ [Col ALLRED]: Did you sign that page? Yes, Your Honor. Were you carefully and fully explained 16 the provisions of that document at the time you signed it, and 17 did you discuss this document with your counsel? 18 ACC [MR. AL DARBI]: 19 MJ [Col ALLRED]: 20 Do you have any questions as to the terms it contains? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes, Your Honor. No. Do you understand and agree to this provision of your pretrial agreement? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 78 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ACC [MR. AL DARBI]: 2 MJ [Col ALLRED]: Yes. Defense, have you fully explained the 3 terms of Appendix A to Mr. al Darbi, and are you satisfied 4 that he fully understands the terms of that document? 5 DDC [LT CHAMP]: 6 MJ [Col ALLRED]: Yes, Your Honor. Defense, do you also believe that the 7 terms contained in Appendix A are in the best interest of 8 Mr. al Darbi? 9 10 11 DDC [LT CHAMP]: Yes, Your Honor. MJ [Col ALLRED]: Mr. al Darbi, are you satisfied with your attorneys' advice concerning this pretrial agreement? 12 ACC [MR. AL DARBI]: 13 MJ [Col ALLRED]: 14 Did you enter into this agreement of your own free will? 15 ACC [MR. AL DARBI]: 16 MJ [Col ALLRED]: 17 this pretrial agreement? ACC [MR. AL DARBI]: 19 MJ [Col ALLRED]: No. Do you have any questions about your pretrial agreement? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes. Has anyone tried to force you to make 18 20 Yes, Your Honor. No. Do you fully understand all the terms of the pretrial agreement and how they affect your case? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 79 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ACC [MR. AL DARBI]: 2 MJ [Col ALLRED]: Yes, Your Honor. Mr. al Darbi, are you pleading guilty 3 not just because you hope to receive a lighter sentence, but 4 because you are convinced that you are, in fact, guilty under 5 the laws -- under the United States law of the offenses to 6 which you have plead guilty or having reviewed the evidence 7 that the prosecution could prove you are guilty of the 8 offenses by competent evidence beyond a reasonable doubt? 9 10 11 ACC [MR. AL DARBI]: MJ [Col ALLRED]: Yes, Your Honor. Do counsel for both sides agree with the commission's interpretation of the pretrial agreement? 12 TC [LTC HOSANG]: 13 DDC [LT CHAMP]: 14 MJ [Col ALLRED]: Yes, Your Honor. Yes, Your Honor. Defense Counsel, have you had enough 15 time and opportunity to discuss this entire case with the 16 accused? 17 DDC [LT CHAMP]: 18 MJ [Col ALLRED]: Yes, Your Honor. Mr. al Darbi, have you had enough time 19 and opportunity to discuss not just the pretrial agreement but 20 your entire case with your defense counsel? 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes, Your Honor. Mr. al Darbi, have you, in fact, consulted fully with your defense counsel and received the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 80 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 full benefit of their advice? 2 ACC [MR. AL DARBI]: 3 MJ [Col ALLRED]: 4 Are you satisfied that your defense counsel's advice has been in your best interest? 5 ACC [MR. AL DARBI]: 6 MJ [Col ALLRED]: 7 defense counsel? ACC [MR. AL DARBI]: 9 MJ [Col ALLRED]: ACC [MR. AL DARBI]: 11 MJ [Col ALLRED]: free will? ACC [MR. AL DARBI]: 14 MJ [Col ALLRED]: Yes, Your Honor. Has anyone made any threat or tried in any way to force you to plead guilty? 16 ACC [MR. AL DARBI]: 17 MJ [Col ALLRED]: No, Your Honor. Do you have any questions as to the meaning and effect of your pleas of guilty? 19 ACC [MR. AL DARBI]: 20 MJ [Col ALLRED]: 21 ACC [MR. AL DARBI]: 22 MJ [Col ALLRED]: 23 Yes. Are you pleading guilty of your own 13 18 Yes. Are you pleading guilty voluntarily? 10 15 Yes, Your Honor. And are you satisfied with your 8 12 Yes, Your Honor. No, Your Honor. Do you still want to plead guilty? Yes, Your Honor. Mr. al Darbi, I find that your pleas of guilty have been made voluntarily with full knowledge of UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 81 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 their meaning and effect. I further find that you have knowingly, 3 intelligently, and consciously waived your rights against 4 self-incrimination, that you've waived your rights to a trial 5 of the facts by a military commission, and you've waived your 6 rights to be confronted by the witnesses called against you in 7 the findings portion of your commission. 8 9 Accordingly, your pleas of guilty are provident and I accept them. You may request to withdraw from your 10 guilty plea at any time before sentence is announced, and if 11 you have a good reason for your request, I will grant it. 12 Accused and defense counsel, please rise. 13 Mr. al Darbi, in accordance with your pleas of 14 guilty, this commission finds you of all the charges and their 15 specifications guilty. 16 Please be seated. Given the agreed-upon delay of three years and six 17 months in the conduct of the sentencing hearing in this case, 18 I am not going to set a litigation schedule for the sentencing 19 hearing at this point. 20 jointly renew or individually submit a request for a 21 litigation schedule in the future. 22 23 The government or defense is free to Mr. al Darbi, Rule For Military Commissions 804 of the Manual for Military Commissions states, "The further UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 82 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 progress of the trial to and including the return of the 2 findings and, if necessary, determination of a sentence shall 3 not be prevented and the accused shall be considered to have 4 waived the right to be present whenever the accused initially 5 present is voluntarily absent after arraignment." 6 What this means to you is as follows. You have 7 been arraigned and found guilty on the charges before the 8 court. 9 to be determined later but consistent with the terms of the I am going to recess this case until a time and date 10 pretrial agreement. 11 order and you are not present, the military judge may find 12 that your absence is voluntary on your part. 13 may then proceed without your presence through the 14 determination of an appropriate sentence. 15 If this commission is called back to This commission Do you understand that? 16 ACC [MR. AL DARBI]: 17 MJ [Col ALLRED]: Yes, Your Honor. Now, Counsel, I understood there were 18 matters that you might want to put on the record before the 19 court adjourns. 20 21 TC [LTC HOSANG]: Yes, Your Honor, there are two matters. 22 MJ [Col ALLRED]: Go ahead. 23 TC [LTC HOSANG]: The first one is regards to two UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 83 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 motions that were jointly filed earlier this week. 2 been marked as Appellate Exhibits 013 and 014. 3 Exhibit 013 is an expedited posting request to the military 4 commissions website of Appellate Exhibit 014, which requests 5 for a sentencing range and a delay in the sentencing 6 guidelines. 7 immediately after hearing. They have Appellate So the parties request that that motion be posted 8 MJ [Col ALLRED]: Very well. 9 TC [LTC HOSANG]: The second issue, Your Honor, is in 10 regards to Prosecution Exhibit No. 1. 11 reconfirm the number of pages that you stated. 12 were 126. 13 that and make sure that's the accurate number after these 14 proceedings. 15 We would like to You said there With leave of the court, we would like to confirm MJ [Col ALLRED]: That's fine. We can follow up if any 16 party has any objection to any of the postings or the matters 17 raised by trial counsel, we can take that up later unless 18 defense has some objection at this point. 19 DDC [LT CHAMP]: 20 MJ [Col ALLRED]: 21 No, we don't, Your Honor. Very well. Anything else from the government? 22 TC [LTC HOSANG]: No, Your Honor. 23 MJ [Col ALLRED]: Defense Counsel, do you have anything UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 84 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 further to put on the record or discuss at this point? 2 CDC [MR. KASSEM]: 3 MJ [Col ALLRED]: No, Your Honor. Very well. The court is now in recess 4 until further notice. 5 [The Military Commission recessed at 1127, 20 February 2014.] 6 [END OF PAGE] 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 85