UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [The R.M.C. 803 session was called to order at 0904, 2 12 February 2015.] 3 4 MJ [COL POHL]: The commission is called to order. Mr. al Baluchi with us today? 5 LDC [MR. CONNELL]: 6 MJ [COL POHL]: No, sir. He is not. Okay. Other than 7 Mr. al Baluchi, all parties are again present that were 8 present when the commission recessed. 9 10 Is Trial Counsel? CP [BG MARTINS]: Please bring in the witness. Would you 11 please move to the witness box, stand, face me, and raise your 12 right hand for the oath. 13 Captain, U.S. Marines, was called as a witness for the 14 prosecution, was sworn, and testified as follows: 15 16 17 18 DIRECT EXAMINATION Questions by the Trial Counsel [MR. SWANN]: Q. Captain, are you one of the assistant staff judge advocates that services the high-value detainee camp? 19 A. Yes, sir, I am. 20 Q. All right. Did you have occasion this morning to 21 advise each of the accused of their right to be present here 22 today? 23 A. Yes, I did. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8369 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 Q. With respect to Mr. Ali Abdul Aziz Ali, did you advise him of his right to be present? 3 A. I did, sir. 4 Q. What time did you do that? 5 A. It was around 0510 in the morning. 6 Q. All right. 7 And did he indicate that he wanted to attend or not attend today's proceedings? 8 A. He said that he did not want to attend. 9 Q. Did he execute a waiver of his right to attend? 10 A. He did, sir. 11 Q. Was that done in English or in Arabic? 12 A. It was in English, sir. 13 Q. You have in front of you what's been marked as 14 Appellate Exhibit 351, consisting of two pages. 15 sign that document? Did Mr. Ali 16 A. Yes, sir, he did. 17 Q. And do you believe that he understood his right to be 18 present? 19 A. 20 TC [MR. SWANN]: 21 MJ [COL POHL]: 22 23 Yes, sir, I believe he did. No further questions. Mr. Connell, do you have any questions? CROSS-EXAMINATION Questions by the Learned Defense Counsel [MR. CONNELL]: UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8370 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Q. Good morning. 2 A. Good morning, sir. 3 Q. My name is James Connell. 4 I am the attorney for Mr. al Baluchi. 5 A. Yes, sir. 6 Q. What's your name, sir? 7 TC [MR. SWANN]: 8 MJ [COL POHL]: 9 LDC [MR. CONNELL]: Objection, Your Honor. Sustained. Your Honor, the reason I asked the 10 question is sometimes the prosecution files a notice of 11 pseudonym, and they haven't done that in this situation for 12 this individual. 13 14 MJ [COL POHL]: Okay. LDC [MR. CONNELL]: 16 MJ [COL POHL]: 17 WIT: 19 Do you have any more questions? 15 18 I sustain the objection. No, sir, I do not. Thank you. Thank you, you may be excused. Thank you, sir. [The witness was excused and withdrew from the courtroom.] MJ [COL POHL]: Before we begin what I am going to call 20 the Hawsawi motions, Mr. Nevin, you wanted to put something on 21 the record? 22 23 LDC [MR. NEVIN]: Thank you. I want to articulate an objection to going forward until the matters related to the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8371 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 former CIA interpreter utilized by the Ramzi Binalshibh team, 2 until those matters are resolved. 3 articulated yesterday. 4 This is the motion I I gather the military commission made a decision to 5 go forward on some of these motions that were under discussion 6 yesterday, although I didn't hear that directly as a decision 7 that that was essentially overruling my objection. 8 articulate, and lest there be any doubt, that this situation 9 with this former CIA interpreter is maybe not exactly the same I want to 10 as 292, but directly analogous. 11 potential for a conflict of interest to try to understand 12 fully what this situation is. 13 It creates at least the And until we get to the bottom of it, the military 14 commission is bound by the U.S. Supreme Court's ruling in 15 Holloway that says, when a potential conflict of interest is 16 presented, everything has to stop and there has to be an 17 inquiry conducted by the judge, by the military commission. 18 And in due course, we will file a motion for discovery similar 19 to 292VV about this, of course, but that is a separate matter 20 from the issue of a conflict of interest, and we object to 21 going forward in any way until that gets resolved. 22 23 MJ [COL POHL]: Thank you, Mr. Nevin. Your objection is overruled. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8372 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Mr. Ruiz. 2 LDC [MS. BORMANN]: 3 Judge, may I be heard before Mr. Ruiz starts? 4 MJ [COL POHL]: 5 LDC [MS. BORMANN]: Yes, ma'am. After the commission adjourned 6 yesterday, I had an opportunity to go back and look at the 7 series of motions that Mr. Ruiz is scheduled to argue today. 8 It occurred to me that with respect to 192, 332 and 340, 9 Mr. Bin'Attash has a vested interest in the procedural and 10 factual outcomes with respect to those ---- 11 MJ [COL POHL]: 12 LDC [MS. BORMANN]: 13 I'm sorry, which numbers, please? 192, 332 and 340. The law and the facts pertain directly to issues 14 which affect Mr. Bin'Attash, and so we are currently operating 15 under at least some form of conflict issue raised in 292, and 16 I would have an objection to ---- 17 MJ [COL POHL]: 18 LDC [MS. BORMANN]: 19 I'm sorry, Ms. Bormann, did you say 292? 192, which is their motion to disqualify the legal advisors. 20 MJ [COL POHL]: 21 LDC [MS. BORMANN]: I have that as 192. I'm sorry. 22 192. 23 I'm not saying 192, I mean 192. If I said 292, I meant I have 192 written here; I think I am saying 192. If 332, which has to do with UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8373 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 medical issues, and 340. MJ [COL POHL]: Okay. Let me ask you a question then -- 3 since you brought it up I'm going to give Mr. Ruiz a chance to 4 hear about it, but 192 was disqualification of Mr. Breslin. 5 LDC [MS. BORMANN]: Mr. Breslin. And then there is a 6 coordinated one that seeks the disqualification of Ms. Kelly, 7 I believe. 8 MJ [COL POHL]: 9 LDC [MS. BORMANN]: 10 MJ [COL POHL]: 11 LDC [MR. RUIZ]: Is Mr. Breslin still with the commissions? No, not as far as I am aware. Mr. Ruiz? Judge, I think there is slight confusion. 12 196 was not discussed yesterday on the record. 13 of the motions that was listed on the prosecution's list. 14 15 16 MJ [COL POHL]: We are talking different numbers here. You said 196. LDC [MR. RUIZ]: 192 was the unlawful influence with 17 respect to Mr. Breslin. 18 going to address 196 when I got up today. 19 It was not one MJ [COL POHL]: 196 addresses Ms. Kelly, and I was But is 192 mooted by Mr. Breslin no 20 longer -- I mean, the relief requested to disqualify him, if 21 he is no longer working there, it would strike to me there is 22 no issue in controversy any more. 23 LDC [MR. RUIZ]: Judge, what I was going to ask the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8374 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 commission to do is to issue a ruling on the underlying facts 2 as they are raised in the motion, but I was not prepared -- I 3 was not going to make argument on it. 4 MJ [COL POHL]: 5 LDC [MS. BORMANN]: Okay. And that is specifically what I want 6 to bring to your attention, because the underlying actions, 7 that is, unlawful influence that seems to permeate these 8 proceedings in lots of -- from lots of different areas is an 9 underlying legal and factual issue that needs to be examined, 10 I think, and decided upon as they arise, and I think they 11 pertain to all of the individuals sitting here in court. 12 So when I looked back at them -- you know, at first 13 blush when you look at them and you're a lawyer, you go back 14 and you look and say, okay, it is not my issue. 15 really my issue because, as you know, there are more recent 16 allegations of unlawful influence made based upon rulings by 17 the Secretary of Defense at the request of the current 18 convening authority. 19 law as they apply to these proceedings affect each and every 20 one of the men here. 21 But it is So the underlying factual issues and the And as I stand here, I can't tell you that I'm not 22 operating under at least some form of conflict that I am 23 unaware of because I don't know, but I can tell you that, with UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8375 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 respect to Mr. Binalshibh, his counsel is. 2 you to reconsider at least closing the argument on those cases 3 today and allowing us to argue issues as they arise later. 4 MJ [COL POHL]: Okay. And so I would ask What I will do, Ms. Bormann, is, 5 what you are basically asking me to do, I will hear from 6 Mr. Ruiz on the one he is prepared to argue. 7 reserve -- if there is a Hawsawi-specific -- I will rephrase 8 this, but if you wish to be heard on them at a later time, you 9 can. 10 LDC [MS. BORMANN]: 11 MJ [COL POHL]: I will There is ---- But on the other thing, on Mr. Breslin, 12 the requested relief is that he be disqualified, and since the 13 relief is basically -- you have gotten that, you want me to 14 issue an advisory opinion on what I would have done had he not 15 been disqualified? 16 LDC [MS. BORMANN]: No. What I would ask you to do is 17 rule on whether or not the underlying actions constituted 18 unlawful activity in violation of the rules that pertain to 19 this commission. 20 MJ [COL POHL]: 21 LDC [MS. BORMANN]: Okay. And obviously disqualification is moot 22 because he resigned, but that doesn't mean that the issue 23 disappears. The issue permeates this entire system and so to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8376 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 be able to make an issue moot by simply leaving your position 2 doesn't seem to be a proper method by which to resolve an 3 allegation of unlawful influence. 4 MJ [COL POHL]: But if you have an unlawful influence 5 allegation, the court, the commission is asked to fashion a 6 remedy, and basically you have been given your remedy, in 7 essence ---- 8 9 10 LDC [MS. BORMANN]: But unlawful -- I don't mean -- I'm sorry. MJ [COL POHL]: What I am just saying is you requested a 11 certain remedy. 12 Mr. Breslin. 13 to issue an opinion about what he allegedly did anyway. The remedy is basically to disqualify Mr. Breslin is no longer there, but you want me 14 LDC [MS. BORMANN]: 15 MJ [COL POHL]: 16 LDC [MS. BORMANN]: The conduct involved. Okay. And the reason for that is simple. 17 The case law points to a cumulative effect when you are 18 examining allegations of unlawful influence. 19 may not rise to the level to point to a system permeated with 20 unlawful influence, several actions coming from various 21 stakeholders in a situation, in this case the convening 22 authority, point to a systematic problem. 23 So while one act And that's the issue and that's why we believe it's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8377 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 important that you resolve the underlying factual 2 determination as to whether or not that action by Mr. Breslin 3 constituted unlawful influence. 4 MJ [COL POHL]: 5 LDC [MR. NEVIN]: Okay. Thank you. Sure. On behalf of Mr. Mohammad, I believe 6 this is covered by an exception to mootness for situations 7 that are capable of repetition yet evading review. 8 that situation, mootness doesn't prevent the military 9 commission or a court from reaching the issue. 10 11 12 MJ [COL POHL]: And in Thank you. Mr. Harrington? LDC [MR. HARRINGTON]: Judge, I would join in 13 Ms. Bormann's objections with respect to the motions that she 14 articulated; and obviously with respect to the conflict issue, 15 I'm at a much higher level in terms of the analysis of that, 16 but I join in that. 17 18 19 MJ [COL POHL]: Thank you. Mr. Connell, we have not heard from you. Do you wish to say anything before we get started with Mr. Ruiz? 20 LDC [MR. CONNELL]: 21 MJ [COL POHL]: We join automatically. Okay. Thank you. 22 Trial Counsel, anything at this time? 23 Mr. Ruiz? Okay. Did I hear you just say you are going to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8378 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 rest on brief on 192? 2 LDC [MR. RUIZ]: 3 MJ [COL POHL]: I'm sorry, say that again. Did I hear you just say that you are going 4 to rest on brief on 192? 5 LDC [MR. RUIZ]: 6 7 8 9 And 196, which was not originally on your -- on the list of motions that were raised. MJ [COL POHL]: The housekeeping thing you provided today was something you wanted to use, an audiovisual aid? LDC [MR. RUIZ]: Yes, sir. This was a supplement that was 10 submitted in AE 214D, May 8 supplement. 11 filed on October 14, 2014. 12 State Department's guide for counselor notifications and 13 actions. 14 MJ [COL POHL]: That supplement was That supplement is essentially the You understand that when you want to use 15 that, it's supposed to be provided within 24 hours prior to 16 its use to the court security officer as a separate ---- 17 LDC [MR. RUIZ]: Yes. But I made the erroneous assumption 18 that, since it was filed in October of last year and included 19 in a motion, that it would get there. 20 MJ [COL POHL]: But you understand there is no way that we 21 can know that everything that's filed to a motion is 22 necessarily going to be in courtroom technology. 23 it may, it's being reviewed. Be that as If it's reviewed in time to use UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8379 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 it, you can use it. LDC [MR. RUIZ]: If not ---I would simply say that perhaps we can put that to the back of the line of the other motions. 4 MJ [COL POHL]: 5 LDC [MR. RUIZ]: Sure. 214. Which one is that related to? This is our request for access to 6 the government of Saudi Arabia so Mr. Hawsawi can speak to 7 representatives of his government. 8 is our State Department's, the United States State Department 9 publication on consular notification and access. The supplement in question So it comes 10 from our government, through our government. 11 will clear them; otherwise, the State Department will probably 12 be a little surprised. 13 14 Hopefully we But having said that, I understand there is a procedure, Judge. 15 MJ [COL POHL]: 16 LDC [MR. RUIZ]: Okay. Just on 192 and 196, I think obviously 17 our intention is not to have any further argument on the legal 18 objections raised in those motions or to seek additional 19 remedy. 20 Ms. Bormann said and I think what Mr. Harrington also did as 21 well, which is the reason that, even though in 192 Mr. Breslin 22 has left, and yet I think I would like you to persist in going 23 through the analysis of the facts that are raised within the I simply want to expand a little bit on what UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8380 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 motion, it's because we, as you know, Judge, have had a very 2 large number of unlawful influence issues. 3 Many of those were under the umbrella of AE 031. 4 Obviously AE 031 is a motion that I think has seven or eight 5 supplements based on different instances, and from time to 6 time we have talked about whether we wanted to begin a new 7 series of unlawful influence motions or whether we wanted to 8 put them under the umbrella of 031. 9 that, Judge, is that in the government's response -- or one of But the relevant point in 10 the prosecution's responses to 031 is that we have filed an 11 unusually large number of unlawful influence claims and I 12 expect that their argument on 031 will be along the lines that 13 it's been an indiscriminate use of unlawful influence in the 14 use of that law. 15 To the extent we have raised an issue in another 16 area, it is important for the court to go through that legal 17 analysis, because when we have to meet that allegation which 18 has already been made in their response in 031, we do need to 19 have the court's analysis on the factual predicate within the 20 motions on the unlawful influence we have raised. 21 So that's, I think, where the nexus and the link 22 comes in which allows 192's legal analysis to survive and puts 23 us in a position to respond to the prosecution, similar to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8381 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 what we have asked you to do in 032 with the companion motion 2 of 018. 3 mail issue that we litigated for a lengthy period of time, 018 4 was the legal mail communications order. 5 have been that 032 was moot because we have resolved 018 to 6 some degree, but we have asked you to nevertheless issue 7 findings of fact on 032 because they are intertwined. 8 that's my position on 192 and 196, and that's all I have to 9 say about those two motions. Which you recall, 032 was our motion on the legal And the positions So 10 I would like to at least talk with you about the way 11 forward with the motions that we have in place and our vision 12 for doing that. 13 numerous points in history, and we are ready and prepared to 14 proceed and argue each and every one of these motions. 15 However, some of these motions have companion discovery issues 16 that deal with documentary evidence, also deal with witness 17 evidence, and so it seems, and I would suggest to the court, 18 that the appropriate starting point is for us to engage in 19 advocacy respectively on why we think witnesses are important, 20 should be granted, why discovery still remains that will allow 21 us to litigate that motion. 22 23 Obviously these motions have been filed at With respect to 214, which is asking for access to government representatives in the government of Saudi Arabia, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8382 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 there is a motion which is 214A. 2 matters and it was a discovery request for diplomatic -- in 3 essence diplomatic notes and documents of communications 4 between the government of the United States and the government 5 of Saudi Arabia as it pertains to access to Mr. al Hawsawi. 6 So that's 214A. 7 should address that issue before we go on to 214. 8 also hopefully give us time to get back the exhibit from the 9 review. 10 214A requests discovery I would submit to the commission that we That will With respect to AE 332, Judge, which is one of the 11 other motions that we have on the list for today, 332 is the 12 emergency medical motion for Mr. al Hawsawi that we filed on 13 December 15 of 2014. 14 very concerned about having the commission address this issue 15 and meet some of the concerns that we had in that motion. 16 That is 332. As you may recall, at the time we were 17 Within 332, one of the most important issues we 18 raised was the access to medical records, full access to 19 medical records, including records that are up to date and 20 contemporaneous with the medical care Mr. al Hawsawi is 21 receiving. 22 and it was relief requested in the motion. 23 That continues to be an issue that we must address Along with that, we also asked to have a meeting with UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8383 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Mr. al Hawsawi's treating physicians, and that was to include 2 the senior medical officer. 3 understand that we operate from a position of lack of power on 4 this because we don't know exactly who the people are, we 5 don't know their names, obviously we know positions, and we 6 don't always know exactly who the person that's doing the 7 actual treatment is, regardless of whether we have records 8 that are often a little bit ambiguous on who that is. 9 And, again, Judge, please So in 332 we requested access to the treating 10 physicians, the senior medical officer, as well as 11 Mr. al Hawsawi's specialist. 12 motion, there are a series of longstanding chronic medical 13 ailments, some of those stemming from his torture and abuse 14 that he received when he was in detention from 2003 to 2006. 15 MJ [COL POHL]: As we have referenced in the Mr. Ruiz, you are kind of jumping from 16 motion to motion to motion. 17 let's take each motion, and if there is discovery or a factual 18 predicate that needs to be addressed first, let's go to that; 19 and then if we can get to the motion, we will get to the 20 motion. 21 in the discovery, you talk about 332 of information on -- so I 22 understand that approach. 23 It seems to me the rubric here is Are you with me on this? LDC [MR. RUIZ]: Because you talk about 214 Okay. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8384 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 MJ [COL POHL]: But let's just pick each motion and do it within the context of what motion you want. LDC [MR. RUIZ]: I wanted to be very clear with the 4 commission that that would be our approach, to suggest that we 5 have motion and witness issues. 6 MJ [COL POHL]: 7 LDC [MR. RUIZ]: I understand. The other issue, and this is more a 8 process or procedure as we go forward on this, is that while I 9 am prepared to argue the witness issues and the discovery 10 issues on these motions, my colleagues are going to argue the 11 substantive parts of those motions if we get to them. 12 those as separate. 13 I see I see the witness and discovery request issues as 14 being an independent, standalone kind of argument. 15 in the past you have always said one lawyer, one motion, but 16 in this case I am asking the commission to allow me to at 17 least address up front the witness availability, discovery 18 availability issues, and the greater part of the motion or the 19 substantive part of the motion as prepared by my colleagues. 20 MJ [COL POHL]: 21 LDC [MR. RUIZ]: 22 23 But I know The colleagues on your team? Yes, sir, Lieutenant Colonel Gleason and Lieutenant Colonel Williams. MJ [COL POHL]: Under these circumstances, that will be UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8385 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 appropriate. Go ahead. LDC [MR. RUIZ]: So my intention would be to address Mr. al Hawsawi's medical motion, which is AE 332, first. 4 MJ [COL POHL]: 5 LDC [MR. RUIZ]: Okay. Sir, on AE 332 -- and I have to say that 6 I think 340 and 332 have overlap. 7 we seek the deposition of Mr. al Hawsawi's prior senior 8 medical officer, who I believe has since departed from the 9 island. AE 340 is the motion where It also requests the deposition of his current senior 10 medical officer, as well as the gastrointestinal specialist. 11 So I'll speak to 332, but I want to make the court aware that 12 340 also contains issues that have overlap. 13 that you would like me to address that overlap, I'm happy to 14 do that. 15 And to the extent For purposes of 332, what we have asked -- Judge, as 16 part of the relief that we have asked in 332, which was 17 Mr. al Hawsawi's emergency medical motion, is that a number of 18 witnesses be provided and be available for the defense to 19 speak to in relation to that motion which, as you know, raises 20 serious concerns about Mr. al Hawsawi's ongoing bleeding, 21 about the issues that are related to the lack of ruling out of 22 cancer based on the blood that has continued to be found in 23 Mr. al Hawsawi's urine, as well as the longstanding chronic UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8386 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 conditions, colorectal issues, that stem from Mr. al Hawsawi's 2 time in captivity, as we have seen in the Senate Intelligence 3 report. 4 and in this case Mr. al Hawsawi it was also referenced, was 5 subjected to excessive rough rectal examinations, there were 6 medical procedures that were used without medical necessity, 7 and those conditions have never been addressed or never been 8 remedied for Mr. al Hawsawi, Your Honor. 9 It very graphically related that numerous detainees, You may have noticed from time to time, Your Honor, 10 Mr. al Hawsawi, when he comes in the commission, sits on a 11 pillow. 12 continued to grow, to get worse, and they are getting to the 13 point where they are affecting our ability to meet with 14 Mr. al Hawsawi because of lack of comfort because these issues 15 are indeed serious. 16 And I will tell you that these concerns have Where the necessity and the need to speak to the 17 medical providers comes is this, Judge -- and the 18 prosecution's answer has been that we have received largely 19 all of their -- all of his medical records, not all of them up 20 to date, and that some of his medical records continue to go 21 through a declassification process. 22 his medical records up to date, again, I'm not privy to the 23 declassification process, but how Mr. al Hawsawi's urine or Having seen what is in UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8387 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 any other aspect of his medical condition may be classified or 2 there is a concern about classification of just the extent to 3 which he is suffering, it escapes my imagination. 4 Having said that, Judge, what I would tell you is 5 that when you look at the circumstances under which a person 6 who is in need of medical condition -- and look, Judge, I 7 understand that the purpose of this prosecution and the 8 purpose of this case is eventually to kill Mr. al Hawsawi, but 9 I also think that we all understand that we have a legal 10 responsibility, an ethical responsibility, while he is in our 11 care awaiting judgment, to make sure that he receives 12 appropriate medical care, Judge. 13 not just to say repeatedly that he receives adequate medical 14 care or that he receives the same standard of care that our 15 troops do, but to actually in practice and that the procedures 16 that are carried out are given to Mr. al Hawsawi. 17 And not just to say that, As we know now, Judge, medical professionals, 18 psychological professionals were intimately involved in 19 devising and creating the system of torture that was utilized, 20 and that cannot be lost on the commission when the commission 21 is asked to allow the defense and Mr. al Hawsawi simply to 22 make medical decisions based on medical records. 23 Judge, as I have related to you in my motions, my UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8388 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 relationship with Mr. al Hawsawi has stemmed from 2009, and I 2 will tell you that during the course of that time, one of the 3 most difficult aspects of that has been to develop a trusting 4 relationship. 5 Mr. al Hawsawi, I was in uniform and I represented 6 Mr. al Hawsawi in uniform for five of those years. 7 was a process that took time. 8 effort. As you know, when I first started representing And that It took time and it took 9 Where we are now is to the point where there is a 10 measure of trust between Mr. al Hawsawi and myself and the 11 uniformed representatives of his team who have been assigned 12 by the United States to carry out our laws and to make sure 13 there is faithful application to those laws. 14 in the context of that trust that we have developed, 15 Mr. al Hawsawi has asked us to meet, to speak to his doctors 16 so that we can communicate in our own language with our own 17 expertise and professional expertise and then have a 18 meaningful conversation with him about what we think is 19 appropriate, answer questions for him. 20 And in that -- We are in a position where Mr. al Hawsawi does not 21 have what a typical patient in a typical doctor-patient 22 relationship would have, which is the ability to talk to a 23 trusted family member or to a trusted friend and to run by UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8389 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 critical and important medical decisions. 2 the necessity comes for the legal team to be able to speak 3 simply to doctors, Judge. 4 state and federal courts, the relationship between doctors, 5 patients and lawyers often has been, largely in my experience, 6 a collaborative experience. 7 procedures and the standards and the policies that have been 8 followed have been ones where the medical providers' names are 9 not provided to the defense, they are kept hidden from the And that's where And as I know from my practice in But for whatever reason here, the 10 defense, and they are not allowed to talk and speak or meet 11 with the defense. 12 here all day and talk about policies and practices, but that's 13 what's been happening, Judge. 14 That's the effect. I know we can stand up Now, in terms of what my team has done in efforts to 15 open up lines of communication with doctors, we have written 16 letters to the doctors asking them to meet with us, we have 17 written letters asking questions to the doctors and hoping to 18 get answers. 19 is any communication with a middle person whose native 20 language is not English and who has come through a series of 21 events that create obstacles to a trusting relationship with 22 medical professionals, it distorts our ability to speak to 23 them. The problem, Judge, is that, to the extent there UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8390 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 So what I am standing here asking you help us do is 2 to preserve Mr. Hawsawi's health, to make sure we have 3 meaningful contact and engagement with his medical providers, 4 and we can have a conversation that will allow us to 5 understand and maybe advise Mr. al Hawsawi and give him our 6 opinion in that role of his counsel, his advocate, of what 7 issues we have ---- 8 9 MJ [COL POHL]: Have you attempted to talk to his medical providers? 10 LDC [MR. RUIZ]: 11 MJ [COL POHL]: 12 LDC [MR. RUIZ]: Yes, sir. And what is their position? We have been denied on one occasion. The 13 letter they declined to speak with us. 14 prosecution's filings, which I can't recall the number now, 15 they take the position that I think yourself can now make the 16 medical doctors speak with us. 17 simply heard silence. 18 to Mr. al Hawsawi and tried to see if there has been any 19 feedback to him, but invariably there is this distortion. 20 It's very difficult to understand what one end is saying 21 through another end. 22 23 In one of the In other instances we have And so we have gone through and talked And ultimately where we want to get to is where we can have a discussion with Mr. al Hawsawi where we said we UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8391 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 talked to your physicians, this is their position, this is the 2 way ahead. 3 am asking you to realize, Judge, is we stand in that 4 relationship of trusted friend, advisor. 5 family members, but nevertheless, the circumstances have 6 brought us to a time and a place that that's where we stand. 7 So those are two key issues, Judge. 8 9 And we are not doctors, I realize that; but what I We are not his In 332 we also ask for additional relief which, as you have seen, includes a number of different courses of 10 action. 11 In December when we first learned of the gravity of 12 Mr. al Hawsawi's condition, at that time Mr. al Hawsawi had -- 13 from the beginning of the time when Mr. al Hawsawi was 14 captured, when he was approximately 140 pounds, to at that 15 time Mr. al Hawsawi was 99, under a hundred pounds at one 16 point, he continued to suffer from lack of sleep and other 17 additional ailments. 18 when we filed this in December. 19 much as I tried to get the commission to listen to us at that 20 time, but I understand the commission made a ruling, and we 21 are here now discussing that issue. 22 23 However, here is what I am telling the commission. So we were very concerned about this And that's why I tried as But the fact of the matter is that the first step for us has to be to be able to have a discussion and a UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8392 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 conversation with the medical doctors. 2 their willingness to meet with us and in the face of what 3 seems to be the position of the government, which is that they 4 can't be ordered to do that, that's why we filed 340. 5 is the deposition motion. 6 explain that I think there are extraordinary circumstances 7 given some of the items that I just related to you, and I can 8 use that to argue on 340. 9 Now, in the face of And when I get to 340, I will So our position is in 332, either, Judge, you order 10 to make those doctors available, in 340 we order the 11 deposition for the reasons that I have articulated. 12 And 340 MJ [COL POHL]: Just so I am clear, on 332 your relief 13 sought has a number of items on it, one of which is to just 14 meet with his physicians ---- 15 16 17 LDC [MR. RUIZ]: As well as release of all medical records to date. MJ [COL POHL]: Yes, but there also appears to be other 18 things, such as immediate and appropriate medical testing to 19 determine the exact source of blood in his urine. 20 asking me to direct the doctors to do certain type of medical 21 tests? 22 23 LDC [MR. RUIZ]: Are you I understand that's a very challenging thing to ask you to do. That's not lost on me, given the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8393 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 state of the record. 2 articulate for you the context in which we filed this motion 3 which, as we showed up in December, we were in preparation for 4 a hearing and we became very concerned about the state of his 5 health. 6 motion that would ask for additional relief as it progressed 7 in time, and we needed to inform you of the gravity of the 8 situation and the things that we needed to have happen. 9 That's why I went back and tried to We did not feel that we had time to parcel out a So ultimately, yes, I would like to ask you that, but 10 right now what I am asking you -- and we have asked you that, 11 but what I am asking you most importantly is for access to the 12 doctor and also as well for access to all his medical records. 13 I believe that that was always the first step in this motion 14 when we would have argued this to you in December, I would 15 have keyed my arguments on that issue. 16 Again, this truly is and was an emergency issue. The 17 fact that Mr. al Hawsawi is still here in court and is here 18 doesn't dispel that, Judge. 19 amount and efficient amount of time to you explain to you the 20 gravity of the situation. 21 Judge, is that Mr. al Hawsawi continues to bleed and guards 22 find his clothes has blood on it. 23 that pertains and remains. And I have tried to, in a short The gravity of the situation, And this is a condition I'm walking a balance here between UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8394 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 an issue that is very sensitive to Mr. al Hawsawi and I am 2 trying to articulate it for the commission, but the gravity is 3 not one that is lost. 4 332, we attached the medical records. 5 themselves indicate that there are certain things that have 6 not been ruled out. 7 don't know much more than that. 8 9 That's why when we provided you with The medical records That's as much as we know. We really In that motion we also asked for a couple of other reliefs and I will address those since you brought those up. 10 We asked for the return of all medical devices for 11 Mr. al Hawsawi. 12 part that has happened. 13 discussing with the Staff Judge Advocate, but the return of 14 all medical devices seems to have gathered some progress, and 15 I need to check with Mr. al Hawsawi to make sure 100 percent 16 that those things were returned to him. 17 It is my belief that largely for the most There are issues that we are still In terms of the return of his legal bins, which 18 includes the legal materials of Mr. al Hawsawi, those 19 materials have been made available to Mr. al Hawsawi. 20 However, the issue that we run up against with that right now 21 is simply he doesn't have access to the particular bins at all 22 times. 23 particular time, and so he didn't have independent access to He has to be given an individual legal bin at any UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8395 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 his legal materials when he wanted to do that. 2 an issue that's easily resolvable if the Staff Judge 3 Advocate's office would be involved. 4 I think that's Unfortunately the Staff Judge Advocate has taken the 5 position that they no longer meet and discuss things with 6 attorneys at the lower level. 7 Advocate, unlike different Staff Judge Advocates, have taken 8 the position that they will not meet, they will not even 9 release the names of some of their personnel. So the new Staff Judge Whereas, before 10 we took first steps, we tried to have conversations, we tried 11 to find middle ground before we got to the level of the 12 commission. 13 current Staff Judge Advocate has removed himself from the 14 process where we could actually try to address things at a 15 lower level and see if we could remedy some of these issues 16 before they become issues that I have to bring to the 17 attention of the commission by way of motion. 18 partly why this is here, Judge. 19 attempts to speak to the Staff Judge Advocate about these 20 issues and -- to try to remedy these issues at a lower level, 21 but that's the policy and the position that the current Staff 22 Judge Advocate has taken. 23 That's no longer an option we have because the So that's I will tell you that I made I will also just briefly mention, Judge, and I only UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8396 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 do that because it seems relevant to mention it now, this past 2 Saturday I first learned that two of -- and I just mention 3 that because it is relevant to the legal issue, and it is one 4 that I also tried to run by the Staff Judge Advocate but it 5 didn't work. 6 This past Saturday right before the 802, I learned that two of 7 Mr. al Hawsawi's attorney-client legal pads have been ceased 8 and have been returned to him without any explanation of where 9 they were -- why they were taken. It goes to the legal bin, legal materials issue. I tried to talk about that 10 with the Staff Judge Advocate and he did not have any personal 11 knowledge. 12 use the entire briefing cycle. 13 A motion on that is coming, and I'm sure we will But the point is that the kinds of issues that we see 14 continue to raise themselves. 15 are today, the most pressing thing that I would like to ask 16 the commission to do is the two issues I have highlighted for 17 you and I am going to ask ---- 18 MJ [COL POHL]: 19 LDC [MR. RUIZ]: 20 MJ [COL POHL]: 21 LDC [MR. RUIZ]: However, at this point where we Are those the doctors and the records? Yes, sir. Okay. So as I go through the list of witnesses 22 that we have requested, we have requested the current senior 23 medical officer for Mr. al Hawsawi. We also used the term UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8397 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 "treating physicians," because we don't really understand -- 2 even after having to have these communications with 3 Mr. al Hawsawi, we don't understand how many people have a 4 hand in treating Mr. al Hawsawi. 5 is a specialist, a gastrointestinal or colorectal specialist 6 that may be on the island that would be available to speak 7 with us about particular medical options. 8 that we have also requested. 9 As well as we believe there This is somebody And as you know in our motion, we also requested the 10 Staff Judge Advocate for the camp as well as the camp 11 commander and the assistant watch commander. 12 requested essentially to establish the efforts that we have 13 made -- the Staff Judge Advocate, the efforts that we have 14 made to communicate. 15 They are The question you asked, have we made an effort to 16 communicate. 17 that the Staff Judge Advocate has played, because we 18 believe -- and I think if we are able to talk with him, that 19 the Staff Judge Advocate has played a role in how these 20 relationships have not developed, policies that continue to 21 exist that prevent access and prevent us from speaking with 22 doctors. 23 Advocate be made available for us to question since we have The responses that we have received, the role So we requested that the current Staff Judge UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8398 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 not had an opportunity to have a conversation with him because 2 he has taken the approach and the policy that he will not meet 3 with us. 4 With respect to the camp commander and the assistant 5 watch commander, we want to talk to them about the 6 circumstances under which Mr. al Hawsawi's legal materials 7 were moved, the medical devices that were removed. 8 are in the best position to address that issue and to tell us 9 why that is something that's relevant. And they So what I am asking 10 you right now is to order the prosecution to provide us with 11 medical records up to date and to also order that these 12 individuals meet with Mr. al Hawsawi's legal representatives. 13 Would you like me to jump to 340 or stay on here? 14 MJ [COL POHL]: 15 LDC [MR. RUIZ]: 16 This is related to 340? 340 is where we ask for deposition in lieu of personal contact. 17 MJ [COL POHL]: 18 LDC [MR. RUIZ]: Okay. And so the argument there is based on the 19 factual predicate, but we are asking that they be made 20 available for deposition because there are extraordinary 21 circumstances in this case where you have the relationship, 22 longstanding relationship, and the trouble between doctors 23 acting in capacities where they have tortured and assisted -UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8399 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 facilitated in torture. I understand -- and I am not staying that these 3 doctors did that, let me be clear about that, I don't have any 4 knowledge of that, but that that past and that history does 5 create barriers to communication and has created barriers to 6 communication where it is important for us to come in and try 7 to bridge some of that gap and facilitate that communication. 8 The prosecution's response on that is that it is not 9 necessary to preserve their testimony at trial. Well, Judge, 10 the rule for deposition doesn't necessarily just tie it to 11 trial, it says if it would be in the interest of justice to 12 preserve their testimony for military commissions. 13 would say to you that it is absolutely in the interest of 14 justice to preserve the testimony of these individuals since 15 they will not meet and speak with us for future sessions of 16 this commission, for future litigation that we may have, 17 whether it's in the trial itself where we have mitigating 18 evidence -- and here is the thing, Judge, I don't know their 19 names so I don't know what their names -- I am not going to be 20 able to request them by name. 21 Judge, I But nevertheless, the point is right now the 22 interests of justice weigh heavily in having the ability to 23 speak to these individuals, whether it's on a personal UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8400 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 one-on-one interview or as a deposition that preserves the 2 essence and the substance of their knowledge and their 3 testimony for this commission, so this commission can then use 4 that to continue to inform itself and to continue to rule on 5 issues such as is Mr. al Hawsawi getting appropriate medical 6 care. 7 Judge, if I'd had the opportunity to speak to these 8 doctors previously, I would have done so and I would have been 9 in a better position here to argue to you why there hasn't 10 been adequate medical care. 11 that against us -- I know you are asking me to do this, and 12 you are asking me to do that. 13 now on this island who can grant us relief. 14 person on this island who doesn't have a pseudonym and whose 15 face I know -- I mean, I know other people -- but who has the 16 authority to make this happen. 17 Judge, but the responsibility to make sure that we maintain 18 Mr. al Hawsawi's care. 19 And I would ask you not to hold You are the only person right You are the only And not only the authority, We certainly have the responsibility as his 20 advocates -- quite frankly, the prosecution, I don't know what 21 their position is, but you do, sir, and I'm asking you to 22 provide us access to these witnesses and medical records so 23 that we can continue to progress and move this issue, this UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8401 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 very important issue, forward. MJ [COL POHL]: Thank you. Trial Counsel? 4 TC [MR. RYAN]: Good morning, Your Honor. 5 MJ [COL POHL]: Good morning, Mr. Ryan. 6 TC [MR. RYAN]: Judge, as I understood counsel's 7 submission to the commission, he was only speaking about the 8 need for discovery and/or witnesses, and then I believe he 9 said the other members of the defense team were going to argue 10 the substance of the motions. 11 his argument it seemed that not only the substance as well the 12 need for witnesses were conflated, but also 340 was sort of 13 pushed into 332. 14 But on the other hand, during If the court -- if the commission would be willing, I 15 would prefer to make one argument at one time, which I think 16 would cover all of the bases, including the substance ---- 17 18 MJ [COL POHL]: Okay, Mr. Ryan. Mr. Ruiz, is there anything more? You said some 19 other members of your team wanted to argue for 332 on the 20 substance of 332 or 340 or -- I'm sorry? 21 LDC [MR. RUIZ]: 22 MJ [COL POHL]: 23 LDC [MR. RUIZ]: May I confer just briefly? Sure. So, Judge, as I see it, there needs to be UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8402 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 additional argument on the adequacy of care and whether 2 Mr. al Hawsawi is receiving adequate care. 3 that I have not addressed fully because I think we are not -- 4 we don't have the access to the information to do that. 5 piece would be argued by Lieutenant Colonel Williams. 6 requesting that relief to the commission in regards of the 7 access to documents and witnesses, we don't have any 8 additional. 9 10 MJ [COL POHL]: LDC [MR. RUIZ]: 12 MJ [COL POHL]: 13 LDC [MR. RUIZ]: 15 That In Can we get to the adequacy of care issue without first addressing and resolving the discovery issues? 11 14 That issue is one I don't believe so. Okay. And that's what I was trying to articulate. MJ [COL POHL]: Got it. So, Mr. Ryan, you can conflate, 16 if necessary, to have a complete argument on the discovery 17 issues, but let's -- because I think it's hard to say they are 18 not interrelated, but -- so go ahead, with that being said. 19 I'm sure gave -- that gave you great, clear guidance, but 20 again, I don't know how you can quite -- discovery is never a 21 vacuum so it is in the context of the larger motion. 22 ahead. 23 TC [MR. RYAN]: Thank you, sir. Your Honor, as to 332, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8403 So go UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 this -- the motion arises out of a specific incident, although 2 at times from counsel's argument it seems, and I guess it is, 3 very much related to a much larger medical issue, medical 4 concerns that counsel is putting forth to the court at this 5 time. 6 The incident, though, that was the basis for 332 7 occurred on the 7th of December 2014. 8 pleading has a record attached to it as Attachment B that 9 describes in some significant detail the actual incident The government's 10 itself. 11 report, but I will just make three points about it. 12 that the accused caused the incident by refusing a lawful 13 order from those guarding him to return into his cell. 14 that same document there is noted at some point by the author 15 that this is not uncommon, that detainees often test the 16 guards by refusing orders to see how far they can get. 17 don't think this is unusual in the world of any ---- 18 I won't go through the entire incident or the entire LDC [MS. BORMANN]: First is In I Judge, I am going to object to that 19 because there is no evidence of that in the record. 20 although you are giving me an opportunity to argue, this 21 affects my client's procedural rights. 22 MJ [COL POHL]: The objection is overruled. 23 TC [MR. RYAN]: Thank you, Judge. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8404 And Go ahead. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Second, I note that the accused initiated the force 2 that ultimately led to a medical issue by, quote, "pushing and 3 pulling against the guards" and then, quote, "dropping to the 4 floor where he proceeded to kick, thrash, and bite at the 5 guards." 6 his hand. 7 And, in fact, one guard did receive a minor bite on Final point from the record attached that is evidence 8 in this matter is that the accused, although being given the 9 opportunity to receive medical treatment for whatever this 10 incident might have done to him, steadfastly refused. 11 only after some point that the accused met with counsel that 12 this became apparently a medical issue and, in fact, it was 13 then filed and styled as "Emergency Motion for Appropriate 14 Medical Intervention." 15 he not only asks for medical intervention, but he asks for 16 many things, and I'll take these requests up one at a time: 17 It is From that, then, as counsel has noted, First, he asked for immediate and appropriate medical 18 testing to determine the exact source of blood in his urine; 19 number two, provide whatever immediate medical procedures are 20 necessary under established standards of care to remedy 21 Mr. Hawsawi's severe and chronic medical conditions. 22 is where we get into this crossing from one incident in which 23 the accused wouldn't even take medical attention to it being a UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8405 And this UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 much larger issue wanting to revisit every medical procedure 2 that's been going on in his time here. 3 I would submit, Your Honor, that this is a recurring 4 theme. 5 this commission has often been asked to make itself the 6 jailer, to be the court of final resort, to be the ultimate 7 decider over what should happen at times on a minute-by-minute 8 basis in terms of how these five individuals ---- 9 In the time that we have been litigating this matter, LDC [MR. RUIZ]: Objection, relevance. 10 TC [MR. RYAN]: ---- need to be guarded. 11 MJ [COL POHL]: Overruled. 12 TC [MR. RYAN]: Now this commission is being asked to not 13 just be the jailer but, in fact, be the doctor of the jailer 14 as well and go behind the scenes, go behind the curtains, go 15 behind the medical professionals' judgment and decide if, in 16 fact, they are doing the right thing, they should be doing 17 more, they should be doing less. 18 at this point that the commission should decline to do that. 19 The accused are getting medical care pursuant to the 20 protocols that an accused has the right to request the medical 21 treatment. 22 23 I would submit, Your Honor, This is where I think the gravamen of it all is, Judge. Your Honor's role should not be to oversee every UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8406 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 aspect of their detention. 2 is in the care of the Department of Defense. 3 by persons who are professionals, and you have heard from some 4 of them through the course of this litigation. 5 the stand or people come to this job after many years of 6 experience, oftentimes roles in civilian life or in previous 7 life that gave them special training, and come in here, I 8 would submit, with an indicia of professionalism, in that they 9 do their job pursuant to the protocols that have been The detention of these individuals It is being run People take 10 established and probably altered as time has gone by as in 11 everything we learn as we go. 12 So although it's easy for counsel to rush in with 13 every motion over every incident that occurs, including every 14 time a legal bin is seized or every time someone falls on the 15 floor and tries to bite a guard, I would submit that that's 16 not Your Honor's position. 17 involved in that. 18 19 20 MJ [COL POHL]: I don't think you want to be What about the request to see his medical records? TC [MR. RYAN]: Yes, sir. As to medical records, the 21 government has been providing on a rolling basis all 22 unclassified medical records of the accused. 23 recent -- with the court's indulgence, just one moment. The most UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8407 The UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 most recent batch of records was submitted on the 12th of 2 December and covered the period of time through August of 3 2014. 4 As it pertains to unclassified records, counsel has 5 records for the accused governing his full time going back 6 to '06 through, as I said, August of 2014. 7 which I understand, of course, would include this time period, 8 is due any time now. 9 "imminent." 10 11 12 MJ [COL POHL]: The next batch, The word that was given to me was You used the word "unclassified." Are there classified records that have not been provided? TC [MR. RYAN]: Yes, sir. That brings me to the next 13 point. 14 will not be produced to the accused or to the accused's 15 counsel until counsel signs the memorandum of understanding. 16 The classified medical records, of course, that exist And, Judge, I have got to point this out at this 17 time. 18 here, things like "cancer," things like "life-threatening." 19 Now we are back to the MOU argument again, and he is saying 20 give me the doctor because I have to know everything. 21 was that important -- strike that. 22 23 Counsel uses some big words, some frightening words If it Going back, you have heard arguments in this court that MOUs don't have to be signed because they are nothing UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8408 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 more than a redundancy; that counsel shouldn't have to do it 2 yet again because they have signed their name a whole bunch of 3 times saying they understand their obligations and out of 4 principle and out of resentment for one more time, they are 5 not going to sign this MOU. 6 But in this case where counsel is concerned literally 7 about the life of his client, you would think they could bring 8 it -- bring themselves to one more time just sign their name, 9 one more time go through that indignity so that they can get 10 11 12 13 full medical ---MJ [COL POHL]: I understand your point. And I don't want to get down into the road of the MOU at this time. Let me ask you this: So your position is the 14 classified records will be provided upon signing the MOU; is 15 that correct? 16 TC [MR. RYAN]: That's correct, Your Honor. 17 MJ [COL POHL]: How about the physicians' interviews? 18 TC [MR. RYAN]: Your Honor, the physicians' interviews, 19 like all government -- like all witnesses working for the 20 government, are governed by standards of behavior and 21 protocols, and this is, I can generally refer to it as sort of 22 the Touhy world, where persons working for the government who 23 somebody wants to question about their official work are UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8409 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 necessarily seeking discovery of the internal workings of the 2 government, and there are basic procedures that have to be 3 followed. 4 In this case -- but getting to Your Honor's point, 5 and I understand it, more importantly than all of that, I 6 would submit this: 7 looking over his shoulder. 8 do not -- I am not speaking with knowledge of any decision 9 made on that person's part, but a doctor in this case is No doctor should be treating with a lawyer The doctor in this case -- and I 10 ultimately in a position of having to treat a patient. 11 not a simple matter of a guard who has got this generic job or 12 neutral job of having to guard anyone, any number of persons. 13 In a doctor situation, as Your Honor can understand, there 14 involves a much more deeper level of a relationship, more 15 discussion, more understanding and so on. 16 It's Doctors are, and this is no secret, are reluctant in 17 any part of life, not just this one, to engage with persons 18 outside of the direct relationship they have with a patient. 19 So it would be entirely within a doctor's realm to decide that 20 they do not want to speak with anyone except the patient as to 21 that patient's care. 22 case, anyone who is in a role of a doctor could look at 23 what -- could look at this case and decide trying to treat a Put on top of it, sir, this: UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8410 In this UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 patient while trying to get a lawyer's involvement and even 2 approval is not a recipe for good care. 3 And that is something, sir, that I submit that should 4 be left to the doctor. 5 the lawyer is getting involved; and, B, if he doesn't like the 6 answers he is getting or lack of answers, goes to a military 7 commission to intervene as well. 8 the medical personnel should be presumed to be acting 9 appropriately and at a level of medical care that is 10 11 It should not be something where, A, For the same reason, sir, sufficient under the circumstances. As far as anyone then going behind the scenes of 12 supervising that person, I would submit there is a system in 13 place of going to the camp commanders, to the head of JTF, to 14 the head of SOUTHCOM. 15 As far as other items that are sought, Your Honor, 16 counsel made mention of the return, immediate return of the 17 accused's medical devices and medications. 18 that they have, for the most part, been returned. 19 are clear, Judge, we are talking about one or two neck braces 20 which the document attached to the government's response 21 indicates he wears very rarely, except for legal visits; an 22 orthopedic pillow, which is available to him any time he wants 23 it, although on a recent occasion he kicked it outside the I think he said UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8411 Just so we UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 cell and said he didn't want it; and last being of a medical 2 cream, which is again available upon request. 3 case, Judge, I would submit it's moot. 4 5 You asked about medical records. So in that I have stated that so I would submit that is moot as well. 6 The return of the legal bins, it is our understanding 7 that they were taken from the accused for the length of about 8 an hour or so during the course of this incident on December 9 the 7th and has been made available. 10 I don't think counsel disputes that, so I would submit that is moot as well. 11 All reports of the incident are sought. As 12 Your Honor can see from the attachment to the government's 13 response, we have provided a detailed report of what went on 14 that day. 15 morning some updated reports that have been going through a 16 security review, classification review, and we can make them 17 available to counsel. 18 regarding this incident. 19 I will, Judge, say that I have received this With that, they will have all reports There was a request of a videotape of the incident. 20 There was none taken. 21 spontaneously. 22 like that, so there is no video. 23 Request for videos ---- This was an incident that occurred It was not a planned extraction or anything UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8412 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 LDC [MR. RUIZ]: Judge, I believe that's not in these 2 motions. 3 addressed only two motions, I guess 332 and -- 332 ---- I believe that's a separate discovery motion. I 4 LDC [MS. BORMANN]: 5 MJ [COL POHL]: I don't see that on 332, Mr. Ryan. 6 TC [MR. RYAN]: Judge, I think I was conflating myself on 7 340. that point, so I will stop. 8 MJ [COL POHL]: Okay. 9 TC [MR. RYAN]: As to 332, Your Honor, as a whole, the 10 argument basically comes down to Bell v. Wolfish and 11 Turner v. Safley, cases that have been cited to this 12 commission many times in the past. 13 recognized -- it has been recognized by the Supreme Court and 14 others that the running of any detention facility is no easy 15 day at the beach, and it is something where the commissions or 16 the courts have generally been told and generally concluded 17 that it is best to give due deference as much as possible to 18 those persons who are on the ground who do it on a daily 19 basis. 20 In short, it is For those reasons, Your Honor, I would submit that 21 defendant -- the accused's motion in 332, both for request of 22 discovery and personnel as witnesses should be denied as 23 either irrelevant or moot. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8413 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 And, Your Honor, at this point I think it makes the 2 most sense for me just to go into 340 as well, which was the 3 request for depositions. 4 similar and shouldn't take much time. 5 My argument there is really quite The accused asks for a deposition of all of the 6 persons that counsel noted to Your Honor, the current senior 7 medical officer, treating physicians, specialists and others. 8 The commission should deny the accused's request for three 9 reasons as we have noted: One, the depositions are 10 unnecessary because the factual record documenting his health 11 care and medical conditions already exists in the form of 12 medical records; two, Mr. al Hawsawi fails to state a proper 13 ground for taking a deposition because he does not seek the 14 deposition to preserve testimony for future trial; and three, 15 Mr. al Hawsawi fails to offer any evidence that his healthcare 16 providers will be unavailable at trial and no circumstances 17 relieve him of his obligation to demonstrate their 18 unavailability. 19 Simply stated, Your Honor, the purpose of depositions 20 is to preserve testimony. 21 to go down some investigation into a medical malpractice case 22 or for even seeking the commission to intervene in places that 23 it really should not be. It's not to start a road. It's not It is for purposes where a witness UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8414 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 won't be there at the time they are needed for trial. 2 In this case we are talking about at least it started 3 as an incident on December 7 where the accused began a 4 behavior that resulted in him having to be forcibly put into 5 his cell. 6 do with the ultimate trial of this case for these five 7 individuals being charged with mass murder. 8 regarding depositions are R.M.C. 702, which comes from Federal 9 Rule of Criminal Procedure 15. 10 That should, as best I can figure, have nothing to The rules Mr. al Hawsawi, through counsel, doesn't even attempt 11 to claim this is for trial or anything to do with trial. 12 Rather, it seems clear, as I have stated, that this has far 13 more to do with litigating the conditions of his confinement 14 and/or to use it for some other purposes to question a 15 doctor's care. 16 Clearly that does not satisfy 702. And as far as the argument, Judge, that even if we 17 throw 702 out the window, even if his counsel says it's really 18 in this world of the giant interests of justice, I basically 19 go back to my argument that I made before, Judge, that this is 20 an area where we would submit the commission is best -- is in 21 the best position to leave such decisions to those who were 22 there, those who were trained to do it. 23 I would just rely on our arguments made previously on our And for those reasons UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8415 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 pleadings and on the cases of Bell and Turner. 2 3 Subject to your questions, Your Honor, that's all I have. 4 MJ [COL POHL]: Thank you. 5 TC [MR. RYAN]: Thank you, sir. 6 LDC [MR. RUIZ]: Judge, I am going to just try to key in 7 and rebut each of these points specifically, and then I will 8 wrap that up. 9 Mr. Ryan's invitation to the commission to entertain 10 the fact that this was somehow something that began on 11 December 7, 2014 is absolutely incorrect. 12 Mr. Ryan would like that to be the beginning point of the 13 inquiry. 14 statement. 15 that our motion was forced because of the December 7 event. 16 I understand why Unfortunately, the facts simply do not support that Judge, that goes along also with the statement On March 19 of 2014, we sent our first letter to 17 Mr. al Hawsawi's senior medical officer, and we have 18 referenced this in our motion. 19 July 10, 2014, we sent an additional letter. 20 letters received any response. 21 the concerns that we have discussed. 22 again asked and requested that medical personnel meet to 23 discuss the serious conditions that we continue to have grave That was March 19, 2014. On Neither of these These letters raised some of On August 18, 2014, we UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8416 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 concerns about Mr. al Hawsawi. 2 time from the JDG commander, at AE 332 Attachment F, declining 3 to meet with us. 4 additional letter that again went without a response. 5 will point out, is all before the 7th, December 7 of 2014, and 6 they were all efforts that we had made repeatedly to try to 7 resolve this issue before bringing it to the attention of the 8 commission. 9 We received a response at that On October 14, 2014, we also sent an This, I The blood -- and Mr. Ryan said, I think, I used big 10 words. 11 lot of big words, but I guess "cancer" is a big word. 12 Judge, I did not use the word "cancer," I simply repeated the 13 word "cancer." 14 in one of the medical records we received. 15 is the cancer had not been ruled out. 16 claim attribution and I can't claim that is my own word, but 17 it is the doctor's word. 18 the doctor who is using the big words, and I just happened to 19 be repeating them for the commission's consideration. 20 Not many people have actually accused me of using a Well, The word "cancer" first appeared in a footnote And what it said Unfortunately I can't So I guess in this instance it is Judge, the references to blood don't come from me, 21 they come from some items that we have been able to discern. 22 On July 23, July 28, August 5, and August 26 -- and that's 23 where our medical records stop -- reference these conditions UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8417 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 without much more to add about these conditions. 2 giving you what we have, what we have looked through these 3 records and what we found. 4 So we are And yes, it is a serious matter. Now, December 7, Mr. Ryan says when a detainee falls 5 on the floor and tries to bite a guard. 6 is he was taken down while shackled by eight guards to the 7 floor, and then they claim he tried to bite them as he fell 8 down on his way to the floor. 9 weighs 100 pounds, was taken down by at least eight members of What he doesn't say That man over there, who barely 10 the guard force while he was shackled, but Mr. Ryan thinks he 11 fell. 12 motions to see if we can get any additional information to 13 determine whether he fell while shackled and being handled by 14 eight members of the guard force or whether he was taken down. 15 Well, Judge, we are asking for discovery in one of our Now, Mr. Ryan says there is no video in this, the 16 highest, most secure detention facility on the place of the 17 earth. 18 19 Apparently they do not monitor with videos ---- MJ [COL POHL]: this is 333 now? 20 LDC [MR. RUIZ]: 21 MJ [COL POHL]: 22 23 Mr. Ruiz, if we are going to go into this, I am just rebutting what Mr. Ryan said. I understand, but do you want to go into 333? LDC [MR. RUIZ]: I would like to rebut what he said and UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8418 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 then go into the next motion. 2 MJ [COL POHL]: 3 LDC [MR. RUIZ]: 4 Go whatever way you want, sir. So those are the facts, and my colleague will argue the discovery portion on that, Your Honor. 5 MJ [COL POHL]: 6 LDC [MR. RUIZ]: Okay. What we did say in our motion in December 7 was that this event, this excessive force exacerbated these 8 longstanding and chronic medical conditions that didn't begin 9 on December 7, 2014, but began somewhere between 2003 and 2006 10 as we now know because the Senate Intelligence report tells us 11 that there were excessive rectal examinations -- some would 12 call that sodomy -- without appropriate, necessary medical 13 need, and those acts caused longstanding chronic and medical 14 conditions that have yet to be resolved. 15 from that fact regardless of how much they would like to, but 16 it certainly didn't start on December 7, 2014. 17 somewhere between 2003 and 2006 by members and agents of our 18 government who violated our laws and tortured. 19 it began. 20 They can't get away It started That's where It is our responsibility now to provide the adequate 21 medical care. 22 would respectfully say to you, is that you, yes, insert 23 yourself into this process because you are the only person who And that first step to doing that, Judge, I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8419 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 now has the authority to move this process along where there 2 has been a refusal to allow us to get adequate information, 3 communications to make a better submission to you as to why 4 you should intervene. 5 have hands off completely of what happens in this commission 6 because they are the jailers and we are the jurors is not 7 accurate. 8 9 And the notion that you should somehow Constitutional rights don't stop at a prison door. That's not what our law says. There continue to be legitimate 10 interests in the court injecting itself in situations where 11 that conduct places at risk and at issue one of an accused's 12 rights. 13 to preserve his health, Judge. 14 tell JTF to tell its doctors that they can't just play hands 15 off, that they have to communicate, that they have to have 16 this dialogue so that you can be in a better position to make 17 these determinations on adequacy of care. 18 pointed out, unless we resolve the discovery issues, unless we 19 resolve access to the witnesses, we are just not there and we 20 would be arguing from a position where we would not be able to 21 provide you with all of the facts in order to do that. 22 23 In this case, it is our right and our responsibility And we are asking you, yes, to Because as you With regards, briefly, to the MOU, it's not an indignity, it is a matter of integrity. That's a very big UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8420 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 distinction. 2 arguments about that -- has nothing to do with embarrassment 3 or indifference or any of those issues, but it has everything 4 to do with the belief that we have that by signing that MOU 5 and the interplay of that MOU with reference to 018EEE creates 6 in us a complicity in denying legal rights to Mr. al Hawsawi 7 and his ability to complain about his torture, which by the 8 way our government just affirmed in Geneva earlier this year. 9 In 2014 we sent a diplomatic envoy to Geneva to say we still The MOU -- and I'm sure we will have further 10 abide by the convention against torture; and yet here we deny 11 his ability to complain against torture. 12 that MOU in that issue is what we are arguing about, not 13 indignity, and we will make that clear at a later point. And the interplay of 14 Judge, I am asking you to grant us access to 15 Mr. al Hawsawi's medical providers and to his medical records. 16 One last point. It is my understanding that as of 17 very recently even his own doctors did not have access to his 18 medical records from 2003 and 2006. 19 don't know. Did they sign an MOU? 20 MJ [COL POHL]: Mr. Ryan, anything further? 21 TC [MR. RYAN]: No, sir. 22 MJ [COL POHL]: Okay. 23 I Thank you. Since it is related to this, let's do 333, and then we will take a break. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8421 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 DDC [LtCol GLEASON]: 2 MJ [COL POHL]: 3 DDC [LtCol GLEASON]: Good morning, Your Honor. Good morning. Your Honor, as Mr. Ryan already 4 brought up the fact, there was an incident on 7 December 2014 5 in which eight members of the guard force took down 6 Mr. Hawsawi while he was shackled which resulted in injuries 7 to Mr. Hawsawi. 8 9 Now, the truth of what happened during this incident is in question. Now, in their response to this motion, the 10 government provided us an unsworn, three-page letter from an 11 unidentified government agent who was alleged to have been the 12 OIC of the camp who says that Mr. Hawsawi began to kick, 13 thrash, and bite at the guards as he threw himself to the 14 ground, which was the cause of his injuries. 15 Now, the defense has not been provided with any type 16 of records to substantiate the government's claims and we are 17 expected to believe that in the most secure detention facility 18 in the world there is no video of this incident taking place 19 and that there is no records of Mr. Hawsawi's injuries because 20 he refused medical care. 21 MJ [COL POHL]: If the government represents that there is 22 no video records, which Mr. Ryan did a minute ago -- I mean, 23 you keep saying, I heard it from you and I heard it from UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8422 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Mr. Ruiz, "I can't believe there is no video." 2 to you, but what I am saying is, okay, they say there is 3 nothing, what am I supposed to do? 4 DDC [LtCol GLEASON]: Belief is up If that's a representation there is 5 no video, Your Honor, then we have to take them at their word. 6 However, we have asked them on that specific point were there 7 any records of audio recording, video, or any photographs that 8 were taken. 9 didn't comment at all on audio or photographs ---- 10 They responded with there is no video. MJ [COL POHL]: They There was not a full response because we 11 were drifting into a different motion at the time, but go 12 ahead. 13 DDC [LtCol GLEASON]: Okay, Your Honor. Your Honor, 14 getting back to the defense teams understanding of the truth 15 of what actually happened, this is going to be critical, not 16 only for the preparation of our defense but if we get to 17 sentencing. 18 because there is Skipper evidence. 19 Skipper, Skipper v. South Carolina, 476 U.S. 1, 1976. 20 what that case is is that the defense is able -- the defense 21 should always be allowed to present evidence on an accused's 22 adjustability to prison life. 23 a capital case. And it's going to be a critical sentencing issue If and when I refer to And It's a highly relevant fact in UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8423 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 The defense opened that door and then the government 2 has the option to present evidence of future dangerousness. 3 And we suspect that Mr. Ryan's argument in court regarding 4 this incident, that that will be the government's approach. 5 They will claim that Mr. Hawsawi caused this incident, injured 6 himself, and that is evidence of his future dangerousness, 7 therefore, he should be sentenced to death in part for that 8 reason. 9 The problem with this -- with that is we have not 10 been provided any facts to verify that or any evidence to 11 verify that. 12 is a due process problem. 13 held that a defendant may not be sentenced to death on the 14 basis of information which he has no opportunity to explain or 15 deny. 16 And that raises a separate Skipper issue, which At footnote 1 in Skipper, the court So, Your Honor, that gets us to our request for 17 discovery. 18 we would like to verify what actually happened on December 7, 19 2014. 20 reports are out there, what witness statements, what command 21 investigations were conducted. 22 Any DIMS records, any medical reports for Mr. Hawsawi or from 23 the guard Mr. Ryan claims was bitten. We have requested three items of information that The first is we asked for documents, you know, what We would like a copy of those. We would like to see UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8424 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 that medical record to verify that allegation. We would like to be provided with personnel or 3 service records for the guards involved to determine whether 4 they have any prior incidents of using excessive force, 5 whether they were counseled in the past, and whether -- 6 regarding this incident, whether they were reprimanded or 7 counseled for acting inappropriately. 8 9 And we have also asked for any videos, audio, or photographs that were taken. As you brought up, the 10 prosecution responded that there were no videos, but they did 11 not address the fact of whether there was audio recordings of 12 this or whether there were any photographs in existence. 13 Now, Your Honor, regardless of what version of the 14 facts is accurate, the defense needs all the facts to prepare 15 their case for trial. 16 is what is fair in this case, Your Honor. This is what Skipper tells us and this 17 MJ [COL POHL]: 18 DDC [LtCol GLEASON]: 19 MJ [COL POHL]: 20 DDC [LtCol GLEASON]: 21 22 23 additional. Thank you. May I have a moment, Your Honor? Sure. Your Honor, I have nothing Thank you. MJ [COL POHL]: Thank you. Trial Counsel? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8425 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 TC [MR. SWANN]: Your Honor, if you look at AE 332, you 2 will see attached an investigation done by the camp commander 3 that Mr. Ryan made reference to, three pages. 4 time classified and we turned it into an unclassified 5 document. 6 It was at one In addition to that, the defense will be provided 7 DIMS. 8 another report, it's called a serious incident report, that 9 was done at the time of this incident. And as Mr. Ryan indicated this morning, there is It will have attached 10 to it some statements. 11 be more than glad to provide it to Mr. Ruiz and his team just 12 as soon as we leave this room. 13 14 15 It's 13 pages in length. And we would That said ---MJ [COL POHL]: Are you saying both the DIMS report and the SIR? 16 TC [MR. SWANN]: 17 MJ [COL POHL]: 18 TC [MR. SWANN]: Yes, sir. Okay. The personnel and service records of the 19 individuals involved, all of these individuals are soldiers. 20 The indications are from the report and all of the witness 21 statements, none of them did anything wrong. 22 23 Now, I have heard much about this, copies of all videos, photographic, and audio recordings of the use of UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8426 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 force. 2 brought about by Mr. Ruiz's client that morning. 3 that you have in front of you and they have in front of you 4 indicate that he wanted to go back to rec, recreational, 5 after, I believe, recording some sort of statement for his 6 family. 7 back in and then bit one of the guards through the glove that 8 the guard was wearing. 9 medical treatment that day was the guard. As Mr. Ryan correctly stated, this was an incident The report He wouldn't go back in and then he was simply placed The only person that received any And I believe there 10 is a statement from the guard as to that treatment also 11 contained in the serious incident report that they will get to 12 obtain. 13 There are no videos of this incident. 14 extractions are videotaped. 15 recollection ---- Forcible And we have, my last 16 LDC [MR. RUIZ]: Objection. 17 TC [MR. SWANN]: ---- over time Mr. Hawsawi has 18 experienced at least two forcible extractions ---- 19 LDC [MR. RUIZ]: Objection, relevance. 20 TC [MR. SWANN]: I'm sorry, Your Honor, it's ---- 21 MJ [COL POHL]: Just a second. Overruled. 22 need to know about previous incidents. 23 FCE would be videotaped but this was not an FCE. You just say that an UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8427 But I don't UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 TC [MR. SWANN]: This was not an FCE. It would have been videotaped if it was. Now, the final item as I see here is F, the ability 4 to examine, document, and photograph the cell which 5 Mr. al Hawsawi has been isolated to. 6 that we spent considerable time in this room addressing an 7 order which is referred to as AE 108, the ability of the 8 defense counsel to visit the camp and spend some time with 9 their client at the camp. 10 My best recollection is This court permitted the accused three -- permitted 11 the defense team to have three members of that defense team go 12 to the camp and spend 12 hours at the camp. 13 again is that you issued this order in the summer of 2013. 14 Mr. Hawsawi's team has not been to the camp. 15 to go, I will do my best to make that visit available in the 16 next few days. 17 MJ [COL POHL]: My recollection And if they want Mr. Swann, as I recall, one of the issues 18 that came up in this was the order was issued for the camp 19 visit and then, as I recall, there was some discussion that we 20 weren't going to -- that the government said you can't do the 21 visit until you sign the MOU. 22 23 TC [MR. SWANN]: Do you recall that? And you -- I believe Your Honor ruled against us on that and said that they could go to the camp. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8428 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 And we have operated under that belief since this court 2 determined that was not ---- 3 MJ [COL POHL]: 4 TC [MR. SWANN]: 5 MJ [COL POHL]: 6 TC [MR. SWANN]: Just so it is all clear ---It is clear. ---- those are unconnected events. Unconnected events. And if you would 7 like to go to the camp over the next two weeks, I will do my 8 best to make it happen today. 9 10 MJ [COL POHL]: Okay. DDC [LtCol GLEASON]: Defense, anything further? Just briefly, Your Honor. 11 Your Honor, our understanding of the facts was Mr. Hawsawi was 12 being escorted by several guards back to his cell, he stopped 13 at his cell door and asked to speak to the watch commander, 14 which prompted the guards to slam him to the floor and for 15 eight guards to jump on top of him which resulted in his 16 injuries. 17 Now, the prosecution has a different version of the 18 facts which they represented in their three-page, unsworn 19 statement. 20 don't want to just trust the prosecution, we want to be able 21 to verify those facts to see if their version is accurate. 22 And that is fair based on the Skipper. 23 evidence, Your Honor, and the defense is entitled to it. The defense would like to verify those facts. This is Skipper UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8429 We UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 That's all I have, Your Honor. 2 MJ [COL POHL]: 3 DDC [LtCol GLEASON]: 4 MJ [COL POHL]: 5 TC [MR. SWANN]: 6 MJ [COL POHL]: Thank you. Thank you. Mr. Swann, anything further? No, sir. The commission will be in recess for 15 7 minutes. 8 [The R.M.C. 803 session recessed at 1031, 12 February 2015.] 9 [END OF PAGE] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8430 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [The R.M.C. 803 session was called to order at 1049, 2 12 February 2015.] 3 MJ [COL POHL]: The commission is called to order. 4 parties again are present that were present when the 5 commission recessed with the exception of? 6 7 8 9 10 CP [BG MARTINS]: All Ms. Tarin, Your Honor, is no longer, but all of the remaining prosecution members are present. LDC [MR. CONNELL]: Your Honor, while we are accounting for people, can we account for the law enforcement in the courtroom? 11 MJ [COL POHL]: Sure. 12 TC [MR. RYAN]: Detective Patrick Lantry of the NYPD, Mr. Ryan. 13 Ms. Brianna Hearn and Mary Needham, both from the Federal 14 Bureau of Investigation. 15 16 17 MJ [COL POHL]: Just a little housekeeping and then we will go there. Mr. Connell, yesterday you indicated that you said 18 230 was one of your motions, I believe it's actually 320; is 19 that correct? 20 21 22 23 LDC [MR. CONNELL]: I transposed the number, Your Honor. It is 320, and I am prepared. MJ [COL POHL]: It's my understanding, and this actually impacts also Ms. Bormann's issue with 008, is that since you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8431 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 are all still part of 292, that that's the reason why we are 2 only doing Mr. Hawsawi's motions? 3 4 5 6 LDC [MR. CONNELL]: That's fine with me, Your Honor. very close to the same issue as in 214A. MJ [COL POHL]: I understand, but you are still -- you are not withdrawing 292? 7 LDC [MR. CONNELL]: 8 MJ [COL POHL]: No, sir. So since Mr. Hawsawi's counsel has, that's 9 why we are doing this today. 10 going to go back to the 292. 11 12 It's But anybody who has not, we are That being said, Mr. Ruiz. CP [BG MARTINS]: Your Honor, just so I am clear, we are 13 only going to litigate 214, and 320, though it has substantial 14 overlap, we are not going to take up? 15 16 17 18 19 20 21 MJ [COL POHL]: Right. Again, because of the 292 issue, yes, that's correct. LDC [MR. RUIZ]: Judge, I have actually got 303 with me, which is another motion that I am prepared to argue. MJ [COL POHL]: Let's talk about 303 before we get to it. Does 303 apply to all five detainees? LDC [MR. RUIZ]: No. 303 is Mr. Hawsawi's motion and it 22 has been withdrawn by every other counsel. 23 withdrew from it. They affirmatively UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8432 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [COL POHL]: 2 LDC [MR. RUIZ]: 3 MJ [COL POHL]: 4 5 6 Okay. So the only ---Based on that representation, therefore, you are the only one with a dog in this fight. LDC [MR. RUIZ]: I mean, they filed a withdrawal with you, so it's clear on the record. 7 MJ [COL POHL]: 8 LDC [MS. BORMANN]: 9 Okay. Go ahead. Judge, I just want to make the record clear -- a little clearer. We withdrew, not because we don't 10 have the same issue in common, but we withdrew because we 11 don't believe we are prepared at this point with outstanding 12 motions for discovery to be able to even draft it. 13 where we are. 14 15 MJ [COL POHL]: Okay. I got it. So that's I got it. Mr. Connell? 16 LDC [MR. CONNELL]: 17 MJ [COL POHL]: I just wanted to make ---- Understand this, it is now a standalone 18 motion by Mr. Hawsawi, it is not to the prejudice of your 19 ability to file a similar motion on behalf of your own client. 20 LDC [MR. CONNELL]: 21 MJ [COL POHL]: 22 LDC [MR. RUIZ]: 23 Thank you so much. Okay. That being said. Yes, sir. And so I will start with the conundrum that we started with with Mr. al Hawsawi's legal UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8433 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 team, which is we have longstanding and current conditions of 2 confinement that we know violate law of war detention 3 standards and humanitarian -- humanitarian law in terms of the 4 standards necessary for the preservation and the appropriate 5 detention of individuals who have come into a detaining 6 power's care. 7 So we are aware of that. On the other hand, we know that these conditions are 8 affecting the quality of life of Mr. al Hawsawi on a daily 9 basis and that, therefore, also affects the quality of 10 engagement that we have with the person that we represent and 11 that we are asked to represent before this commission. 12 analysis for us was do we wait endlessly, Judge, in order to 13 continue to fight the protracted fight that we have waged to 14 obtain discovery, to obtain information that will allow us to 15 continue to inform our observations, or do we file now what we 16 know needs to be remedied. 17 So the I will tell you that we made the decision to file now 18 because we believe that there were conditions that were 19 absolutely violative of our responsibilities as a nation, as 20 attorneys, and as participants in this proceeding. 21 that motion on May 29, 2014, Judge, and at that time we 22 highlighted for you in the motion a number of different issues 23 that we know were being violated. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8434 We filed UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 As part of that motion, Judge, we submitted to you -- 2 actually, we didn't submit to you, after some discussion with 3 court personnel, we proffered for you the records of the 4 International Committee for the Red Cross which, as you are 5 well aware, we had a very long and very difficult battle to 6 obtain access to those records which the ICRC has maintained 7 since they first obtained access to Guantanamo, I believe it 8 was in 2007 through the current period. 9 Those records absolutely informed and opened our eyes 10 to the conditions of confinement in Camp VII. 11 prosecution's position, as you may recall originally, was that 12 those documents were classified. 13 through subsequent proceedings, learned that, in fact, those 14 documents were not classified, but it was their position 15 should be treated as classified. 16 documents have not been classified. 17 issued an order consistent with your review and when you 18 provided those records for us for our analysis said that those 19 documents had to be handled under seal and with the permission 20 of the commissions. 21 The And, in fact, we later, To this date, those However, Your Honor In this motion we have submitted to you, 22 Mr. al Hawsawi's counsel have submitted to you -- I keep 23 saying submitted because that's what we intended to do, but UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8435 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 then the judiciary said we have already got the records since 2 it was us that provided them to you. 3 we submitted to you an outline of the specific portions of the 4 reports from the International Committee for the Red Cross 5 that absolutely affirmatively tell you where these violations 6 are. 7 So what we have done is Unfortunately, I am prevented and prohibited from 8 discussing that today in open court even though those 9 documents are not classified. The reason for that is because 10 after we obtained access to those records, and by we I mean 11 the defense obtained access to those records, the Department 12 of Defense decided to issue a memorandum that indicated the 13 release of those records to the public would be detrimental to 14 the public interest. 15 argument for that, they did not submit factual matters that 16 would support that; they simply said that the release of those 17 documents to the public would be detrimental to the public 18 interest. 19 all of the bad stuff. 20 that to the battle that the Senate waged in order to finally 21 have some transparency in the release of the Senate 22 Intelligence executive summary. 23 Now, they did not make a specific My translation of that is we don't want them to see It would be bad. I would analogize Nevertheless, a key and very significant part of our UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8436 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 argument to this court why these infirmities, violations of 2 the law need to be remedied exist within the International 3 Committee of the Red Cross documents, Your Honor, that you 4 have in your possession and that we have gone through and 5 highlighted for you in our argument. 6 In the open part, in the part that we were permitted 7 to discuss publicly, because the government has drawn those 8 lines and in essence ushered us into that box, and in that 9 limited box that we can discuss here openly and somewhat 10 transparently, the question is why should we care about the 11 conditions of the detention of these men at all. 12 I don't think I need to spend a whole lot of time on 13 that, but we certainly briefed for you in this submission that 14 we are giving you the standards of law that apply to this case 15 in both international or domestic applications. 16 prosecution's response to this motion they go through a litany 17 of different documents and memorandums that have been issued 18 that have aspirational -- aspirational goals of what we ought 19 not to do. 20 say to you, Your Honor, is that the prosecution's response and 21 the litany of documents that they cite, the Walsh report 22 amongst those, which is a 2009 report which was created by 23 Admiral Walsh of the conditions of confinement, all of those And in the And what I said to that submission and what I will UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8437 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 tell us what we already know, what we already should know, and 2 that is, we should not violate established norms for detention 3 conditions for law of war detainees and people that are in our 4 custody, and we need to bring those standards up to -- up to 5 the legal standard that we expect. 6 What we have asked for you to do in this motion with 7 Mr. al Hawsawi is to move Mr. al Hawsawi -- or to ask that 8 Mr. al Hawsawi either be provided with the adequate standards 9 that are necessary or, if not, to be moved to a facility that 10 11 complies with international law standards. Now, I suspect that the prosecution's position and 12 one of their arguments will also be, Judge, you can't tell the 13 jailer where to jail Mr. al Hawsawi. 14 inject yourself into determinations of the jailer. 15 been a consistent position that the prosecution has taken. 16 You heard some of that argument earlier today. 17 And you should not That has But again, there is that intersection where you are 18 the presiding official in the military commission of 19 Mr. al Hawsawi and -- along with the co-accused of 20 Mr. al Hawsawi, and to the extent that those conditions of his 21 prolonged detention continue to violate international norms 22 and continue to violate our own standards and principles, you 23 have absolute authority to make sure that those come into UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8438 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 conformity because those conditions continue to affect the 2 adequacy of our legal services, the adequacy of our 3 engagement, and also the ability to continue to have the 4 relationship with this man that is required of us as our 5 representative. 6 authority and I think you have more than enough grounds for 7 acting in this case, Your Honor. 8 9 So I think it is not a question of your Now, I will say that since we filed our motion on May 29, 2014, one of the issues that we have raised before the 10 commission was that, in recognizing international norms of 11 detention -- and let me also say this: 12 it is not tied to and it is not based on what a prisoner is 13 accused of or what a prisoner is accused or suspected of 14 having done or whether we like him or whether we think they 15 are people we want to associate with or whether we agree with 16 their politics. 17 these arguments are about. 18 forth not only by us, by the international communities, and 19 the standards that we have signed on to in the international 20 community and that's why we are making these arguments. 21 This is not unique and That's not what this motion is about and what It is about standards that are set One of these standards that we raised before the 22 court was that prisoners in a pretrial detention setting, such 23 as Mr. al Hawsawi, such as his co-accused, but then we tied it UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8439 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 to Mr. al Hawsawi, Your Honor, must be given the opportunity 2 to have meaningful contacts with family or friends. 3 an established norm. 4 concerns that need to be taken into account. 5 with that, but certainly, Judge, an absolute blackout of 6 family contacts since 2003 when Mr. al Hawsawi was first 7 brought into our custody is unacceptable and is absolutely 8 violative of international law. 9 MJ [COL POHL]: 10 LDC [MR. RUIZ]: That is Certainly, Judge, there can be security We won't quibble Has there been any change to that? There has, and that's what I am getting 11 to. 12 understand that now in October, following the filing of that 13 motion, the men in Camp VII were first allowed to begin a 14 process of recording a message that they could send to their 15 families as -- I don't know the exact methodology for the 16 recording, but they could make a recording and have it go 17 through censorship. 18 January 17, they have begun attempting to implement a process 19 whereby there can be, for lack of a better term, Skype 20 telephone conversations. 21 want to acknowledge that that had been a change since we filed 22 the motion. 23 Since May 29 of 2014 when we first filed our motion, I I also understand that as recently as So I want to acknowledge that, and I When we filed the motion, from May 29, 2014, moving UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8440 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 back all the way to when Mr. Hawsawi was first captured, 2 detained in 2003, there had never been such a process, there 3 had never been such opportunity. 4 acknowledge that I am glad that our government is 5 acknowledging that obligation and taking it seriously and 6 taking steps to bring our practices in conformity with 7 recognized standards of detention. 8 much work to be done, Judge. 9 because it is under seal with the records from the 10 11 So I will say and I will However, there is still Much of that I can't discuss International Committee of the Red Cross. We have asked the commission for additional records 12 since the production that you first reviewed all the way up to 13 the present time. 14 from the prosecution that I believe those documents were 15 provided to you for an in camera review to be provided to us 16 for a review. 17 information for us as we inform our analysis and attempt to 18 litigate this issue in the manner that we need to do. We just recently received a communication That is, of course, also an important source of 19 Judge, one issue of concern -- and certainly we know 20 that the condition of this facility is -- in this instance, I 21 am actually going to quote a communication from, I think it 22 was Mr. Mark Thornberry, a representative from Texas, who was 23 quoted after his visit in Camp VII where he clearly and openly UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8441 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 indicated that the facilities where Mr. al Hawsawi is 2 currently detained are far exceeding their life expectancy and 3 deteriorating rapidly. 4 degrade operational life and health and safety standards. 5 Failure to meet those needs will And the reason I think it is important to highlight 6 that from the perspective of a government representative is 7 obviously it's not something that Walter Ruiz is articulating, 8 it is something that I am repeating that comes from someone 9 who has had the opportunity to review that and talk about the 10 operational life and health expectancy and the standards of 11 this proceeding. 12 detention facility where we have that responsibility, part of 13 that responsibility is to make sure that the facilities where 14 the men are detained during the pendency of the process, in 15 this case the trial process, that they are up to standards. 16 That clearly is not the case right now, and we need 17 intervention in that forum. 18 And certainly when you talk about any Communications with counsel. And I believe, Judge, I 19 will just touch on this because this is the subject of an 20 independent motion, but contact with attorneys via telephone 21 calls is something that we will litigate independently and 22 separately, but it kind of dovetails into it a little bit, as 23 well as the ability to, consistent with the protections of the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8442 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Geneva Conventions, that as far as I understood we had 2 consistently said we were going to follow, we were going to 3 apply, and we were going to remain -- and when I say "we," I 4 mean our government, the United States, were going to remain 5 faithful to those dictates, those applications and obligations 6 that we have signed on to in terms of our obligations. 7 Now, I will point out that I was a bit thrown off 8 because I do know that in the prosecution's response, on 9 page 11 of their response, they actually take a step back from 10 that, or so it appears, and they say that the Geneva 11 Conventions is not applicable and that Article 16 doesn't 12 apply. 13 because I have seen General Martins a number of times, the 14 Chief Prosecutor, in multiple public appearances where he 15 continues to say that we remain faithful to the application of 16 the Geneva Conventions. 17 page 11 of their briefing and he says -- or representatives of 18 his office say the Geneva Conventions are not applicable, 19 Article 16 does not apply. 20 even if it does apply, you know, even if everything that we 21 said before about it applying, it doesn't apply to -- it only 22 applies to adverse distinctions. 23 And the reason that caused me to do a double take is So imagine my surprise when I turn to And then they go on to say, well, So it very clearly says their position is now that UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8443 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 the Geneva Conventions does not apply, at least Article 16 is 2 not applicable, but if it does apply, then, Judge, they submit 3 for you that it ought to be interpreted only with respect to 4 adverse decisions. 5 The other issue that we raised, Judge, is in the 6 context of our obligations with Geneva obligations, with 7 international law standards, in connection with our own 8 domestic promises to fulfill these guarantees, is that 9 Mr. al Hawsawi must be allowed consistently and within reason 10 to practice the tenets of his religion. 11 to Islam, it's not tied to Christianity, it is not tied to 12 Judaism, it is something that applies to any person who is in 13 the captivity of a detaining power and who needs to have the 14 ability to exercise basic tenets of their faith. 15 the issue that we raised before you is that there is still no 16 means for Mr. al Hawsawi to practice his ritualistic prayer in 17 a manner that will allow him to do that in a group setting. 18 Now, that's not tied In this case And this is something, Judge, that I have had the 19 opportunity to visit. 20 premier international law of war detention standard in The 21 Hague, in The Netherlands -- as you may know, they detain 22 prisoners who are charged with some of the most heinous 23 crimes, genocide, crimes against humanity, and they face What I would suggest to you is that the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8444 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 extremely, extremely serious charges on par with some of the 2 accusations that we see here today, certainly in terms of 3 scope, certainly in terms of number, and certainly in terms of 4 the concern that a reasonable community may have in terms of 5 balancing the security protections, but also the balancing of 6 human interest rights, as well as protections under the Geneva 7 Conventions and international humanitarian law. 8 tell you that they managed to strike that balance. 9 of that balance is to have adequate access to their lawyers, And I will And part 10 telephonic conversations. 11 in communal prayer and to do these kinds of acts consistent 12 with the dictates of international law and consistent with the 13 security concerns that that particular facility may have. 14 They do have the ability to engage I will also highlight that that is in a relatively 15 large and open metropolitan community. 16 isolated island, heavily militarized, and with multiple bodies 17 of water and air, land, and sea that must be crossed before 18 they can get to the detention facility. 19 It is not in an And so I mention that, Judge, because when you start 20 hearing the balancing of the security interests, it is 21 important to look to guidance of a facility that has managed 22 to strike that interest, who has managed to balance it while 23 remaining faithful to the application of international law and UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8445 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 to the detention standards that are required in international 2 law and has done a very good job of it. 3 security doesn't weigh in favor always or doesn't mean that 4 you get a pass on the obligations that you have to bring these 5 issues into compliance. And the balance of 6 In this case, I would submit to you that the 7 prosecution's response states only the obvious, which is, yes, 8 we have a number of pronouncements that have been made by the 9 President, we have a number of pronouncements that have been 10 stated in treaties, we have a number of obligations that we 11 continue to pronounce, and we continue to go overseas before 12 the United Nations that we continue to affirm; but when it 13 comes down to the facts in the matter and the truth of what is 14 going on, we are not there yet and we need to bring those 15 standards up to compliance. 16 And until the government does that, Judge -- and if 17 they continue not to do that, Judge, then, Judge, it is your 18 authority and your responsibility to order that Mr. al Hawsawi 19 be put under the conditions of confinement that are 20 appropriate. 21 22 23 Thank you. MJ [COL POHL]: Thank you. Trial Counsel? MDTC [MR. TRIVETT]: Mr. Trivett. Good morning, Your Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8446 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [COL POHL]: 2 MDTC [MR. TRIVETT]: Good morning. In response to Mr. Ruiz's reference 3 to the Geneva Conventions and our position on the Geneva 4 Conventions, the United States is bound by Common Article 3 in 5 its war against al Qaeda. 6 position. 7 bit. 8 conflict such as the conflict between the United States and 9 the nonstate actor of al Qaeda, whereas Article 16 That's the official government But his reference to Article 16 confuses things a Common Article 3 governs not international armed 10 specifically deals with international armed conflict. 11 a conflation of the two issues. 12 clarified that on the record. 13 So it's We wanted to make sure we But saying that we are bound by Common Article 3 of 14 the Geneva Conventions is different than saying that 15 Mr. Hawsawi himself has a right in this military commission to 16 have Common Article 3 rights vindicated by the court. 17 fact, he is statutorily barred from asserting the Geneva 18 Conventions by the Military Commission Act of 2009. 19 that's what he is trying to do here. 20 bit in his written filings by saying I'm not asserting Geneva 21 Convention as a right. 22 Conventions is evidence of the international humanitarian law 23 at issue and that there is some other amorphous standard of In And I think he nuances it a What I'm saying is that the Geneva UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8447 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 international humanitarian law that he is asking you to apply 2 in this military commission. 3 But really that's just an end run around Congress' 4 intent. 5 all respects with Mr. Hawsawi's confinement. 6 not, Mr. Hawsawi could not raise that as an enforceable 7 standard that the military judge here in this military 8 commission could assert and could enforce. 9 Conventions are a very large part of the international The United States complies with Common Article 3 in But if we did The Geneva 10 humanitarian law, but to simply spin this argument into simply 11 saying that it's just evidence as opposed to the actual 12 international humanitarian law at issue the government 13 believes is a legal fallacy. 14 It's important to note Mr. Ruiz's comparison to The 15 Hague facility being a facility that handles what I believe he 16 said were crimes of genocide. 17 at Camp VII handles individuals who were alleged to have 18 committed pretty bad offenses themselves. 19 that he is asking you to apply with The Hague facility is an 20 impossible legal standard. 21 conclusion, every military detention facility around the 22 world, not just this one, would have to have an exact 23 facsimile of The Hague facility, or lest have to defend itself We would note that the facility But the standard Taking it to its logical UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8448 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 against every way in which it is different from The Hague 2 facility. 3 And while The Hague facility no doubt complies with 4 Common Article 3, that clearly does not mean that what it has 5 is the minimum standard of compliance with Article 3, nor does 6 it mean that every facility that does not have every creature 7 comfort that The Hague may have falls below that standard. 8 9 The U.S. is committed to complying with Common Article 3, it does comply with Common Article 3, but it should 10 not be the military's job to examine all aspects of his 11 detention at Camp VII and how they may be different than what 12 a detainee has at The Hague facility. 13 And I heard Mr. Ruiz comment a couple of times about 14 the standards that should govern pretrial detainees. 15 someone is being detained at The Hague, I'll assume for 16 purposes of this motion that they are considered and held as 17 pretrial detainees there for their violations of international 18 war. 19 Mr. Hawsawi is being detained as an alien unlawful enemy 20 belligerent, which is a standard set forth both in the 2006 21 Military Commission Act, although in slightly different 22 terminology, and under that specific terminology in the 2009 23 Military Commission Act. And when That's not how Mr. Hawsawi is being detained. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8449 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 He is not a pretrial detainee. He is not a prisoner 2 of war as the Geneva Conventions would define a prisoner of 3 war. 4 that is a legal, logical, and moral failing of the United 5 States Government, I would point out that it's the will of the 6 people and it's the will of Congress in two different 7 Congresses and the will of two different presidents in two 8 entirely different executive branches from two different 9 political parties. 10 And while Mr. Ruiz in his filings seems to believe that The United States Government has decided that they 11 are not entitled to all of the privileges that a prisoner of 12 war under the Geneva Conventions would be. 13 based on the fact that they have -- this war with al Qaeda, 14 they have almost no regard for the Geneva Conventions. 15 moral failings of the United States can be put on the people's 16 representatives, but shouldn't be a legal standard by which 17 this military commission decides this issue. 18 Part of that is So the What he is entitled to before this court is he can 19 challenge his status as an alien unlawful enemy belligerent if 20 he so chooses. 21 defense counsel, was such a challenge. 22 meet that challenge. 23 evidence that we intended to present to establish his alien And we believe that AE 119, when filed by the And we are ready to And as a sidenote to that, all of the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8450 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 unlawful enemy belligerency was immediately moved by the 2 defense to never go on to the public website. 3 the public doesn't understand the government's position on how 4 its going to challenge -- the challenge to Mr. Hawsawi's or 5 all five of these accused's alien unlawful enemy belligerency. 6 So right now But what he is entitled to, I think, is an important 7 understanding for the commission in how limited your role 8 should be in this request. 9 move Mr. Hawsawi to a different facility or to somehow have And, of course, the request is to 10 the facility change the creature comforts that the accused 11 believe that they are entitled to. 12 challenges that and he wins, then there is no jurisdiction for 13 this military commission and the case goes away. 14 But ultimately if he That does not mean, however, that if he wins and he 15 is not an alien unlawful enemy belligerent, that the military 16 judge would have the authority to then direct, then direct 17 Camp VII to either comply with what it feels was required 18 under international law or to move him away to a different 19 facility. 20 strictures of what your power is here, sir, and you have all 21 of the power to vindicate all of the rights that an accused 22 may have before this military commission. 23 So I think that's an important understanding of the But at some point there has to be a better limitation UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8451 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 on what the military judge engages on when there is questions 2 about conditions of confinement, when there is questions about 3 medical intervention, when there is questions about how the 4 guards move individuals to and from. 5 the defense to simply assert that it somehow impacts their 6 relationship. 7 enough for the defense to be able to get it before the 8 military commission to consider it. 9 It can't be as easy for That can't be the standard. That can't be And by analogy, here is the far extreme of the 10 analogy. 11 want him to have ice cream. 12 going to like me more, he is going to come to my meetings, and 13 we are going to have a better defense. 14 logically absurd that the military judge would get involved 15 under a standard like that, but at some point that's what they 16 are trying to do: 17 representation. 18 a choice? 19 manipulate this military commission in order to improve 20 their ---- My client likes ice cream. If I provide him ice cream, he is Now, that seems Quality of life equals quality of Does it really, or are we just talking about Are we talking about five accused who are trying to 21 LDC [MR. RUIZ]: 22 MJ [COL POHL]: 23 The facility doesn't Objection, relevance. Objection sustained. Move on to something else. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8452 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MDTC [MR. TRIVETT]: We believe it's at least relevant to 2 the determination that this is something that you should defer 3 to the administration on as far as the administration of the 4 prison facility by the JTF-GTMO. 5 we believe that the deference in this instance is equally 6 important to the deference in the other instances in which we 7 have asked you to defer to the experts in the prison 8 administration. 9 We don't believe you have -- If I could just have one moment, sir. 10 MJ [COL POHL]: 11 MDTC [MR. TRIVETT]: 12 MJ [COL POHL]: 13 MDTC [MR. TRIVETT]: 14 LDC [MR. RUIZ]: 15 MJ [COL POHL]: 16 LDC [MR. RUIZ]: Sure. Absent further questions, sir. I have none. Thank you, sir. May I? Sure. Judge, I know I can't get into the very 17 troubling issues that are referenced in the ICRC reports, but 18 what I can represent to this commission and to you, and I 19 think if you've reviewed those, is that there are no issues of 20 ice cream involved in those -- 21 CP [BG MARTINS]: Your Honor, at this point I would like 22 to invoke the government information privilege. 23 relationship between the International Committee of the Red UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8453 We have a UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Cross, international partners that should be protected, and he 2 is now delving into matters that relate to communication that 3 appropriately have protection with a privilege. 4 LDC [MR. RUIZ]: The matter of ice cream is a matter of 5 protection with -- I am actually saying there is no mention of 6 ice cream in the ---- 7 MJ [COL POHL]: General Martins, just so I understand 8 this, all I heard him say was that he wasn't talking about the 9 ice cream analogy that Mr. Trivett raised and he has 10 11 referenced without saying substantively the ICRC documents. CP [BG MARTINS]: He is referring to what may or may not 12 be in the contents of the document, Your Honor, and this is 13 why you sealed it. 14 protections with regard to these communications. 15 16 17 18 This is why you have taken great MJ [COL POHL]: So you are saying he is referring to the fact that ice cream wasn't in the documents? CP [BG MARTINS]: Your Honor, this is your protective order. 19 MJ [COL POHL]: 20 LDC [MR. RUIZ]: I got it. I got it. Judge, I will cease and desist from 21 mentioning ice cream in the ICRC's protective order, but I 22 will continue to draw your attention to the substance of those 23 reports. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8454 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [COL POHL]: 2 LDC [MR. RUIZ]: Got it. Thank you. Judge, mind your own 3 business. 4 to stay out of it. 5 translation of what the argument is, is you don't get to play 6 in the detention aspect, you don't have a role in it. 7 word used is "deference," but really what they are saying is, 8 Judge, mind your own business, and your business is not that. 9 Your business is here judging and ruling on these motions 10 11 Mind your own business, this is our box, you need That's my translation. That's my The based on the information that is provided to you. Our argument is, Judge, it is your business and 12 responsibility and you have the authority to act, and you 13 should act, Judge, in this matter. 14 retrieve another notepad. 15 MJ [COL POHL]: 16 LDC [MR. RUIZ]: Actually, Judge, I need to Sure. I'm not going to get into more of the 17 Geneva Conventions, but I think it's safe to say that we have 18 established now that the government does not believe that 19 Mr. Hawsawi is entitled to all the protections of the Geneva 20 Conventions. 21 extensively. 22 23 I think we have argued this and briefed it I would submit to you that you have an independent obligation to make sure that we comply with those protections UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8455 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 and that to say that Mr. al Hawsawi and the other men who are 2 in our detention and in our care are treated in accordance 3 with Geneva, but if we violate that, there is nothing he can 4 do about it, there is nothing you can do about it, so we 5 will -- you know, we will just -- you know, we will just be 6 satisfied with saying that it applies or it doesn't apply in 7 some instances. 8 9 With respect to the analogy of The Hague, no, Judge, we are not saying that you should have an exact facsimile of 10 the detention facility at The Hague, but we are providing you 11 with the best example of a real-world example of a 12 high-security facility that manages to balance the interests 13 of appropriate law of war detention and their security 14 concerns, whatever they may have. 15 saying, Judge, if you are being told that we can't and it is 16 something that cannot happen, then I think you should at least 17 use that example in your analysis. And by analogy we are 18 Mr. Trivett referred to our motion in regards to 119 19 where we asked the commission not to allow the prosecution to 20 publish the statements that they utilized in their motion. 21 What he failed to say was the reason behind that was because 22 we did not believe -- actually, we believed General Martins 23 when he said that they would not use statements derived from UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8456 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 torture or utilized or obtained through the use of torture in 2 the course of these military proceedings. 3 proceed to set forth a litany of statements that we believe 4 are derived directly from methodology employing torture. 5 Yet in AE 119 they And since we, for the most part, at times tried to 6 take the Chief Prosecutor at his word when he says he is not 7 going to use evidence derived from torture, we take that to 8 mean not only at trial, but in their pleadings and pleadings 9 that would be made public. And we certainly -- if we litigate 10 that issue before this commission and Your Honor says, well, 11 that information will be admissible or that information will 12 be excluded, it would be meaningless at that point if the 13 prosecution has already plastered it upon some pleading and 14 taken advantage of evidence that has been obtained and derived 15 from torture. 16 So there was a legitimate need to say to this 17 commission, which is what we said, Judge, let's wait until we 18 litigate the admissibility of those documents, determine if 19 they were derived from torture, from techniques that the 20 general himself has tried to distance himself from. 21 very disingenuous to get up here saying we need to keep it 22 from the public when the entire mantra of the prosecution has 23 been these military commissions will not utilize statements UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8457 So it's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 derived from torture. 2 What we said in our pleading, Judge, is we will 3 litigate that. 4 not going to rule that out at this point and just allow them 5 to take advantage of this evidence that we know and believe 6 has been derived from techniques that our law says are not to 7 be utilized in the admissibility of evidence because it goes 8 against reliability and voluntariness. 9 established. 10 11 That's well That's all I have, Judge. MJ [COL POHL]: 12 13 We will litigate the admissibility, but we are Thank you. Mr. Trivett, anything further? MDTC [MR. TRIVETT]: We certainly disagree with the 14 defense counsel's characterization of how the statements were 15 derived. 16 That's all. MJ [COL POHL]: That brings us to 214 and 214A. It's -- 17 on 214A the government response is basically -- let me ask the 18 government first of all. 19 because this is one of our older ones, 25 September 2013 was 20 delay action until you completed your review of any potential 21 discovery material responsive to the requested relief? 22 23 CP [BG MARTINS]: Your response of 23 September -- Yes, Your Honor. Subsequent to that we went out and did prudentially search records and fulfill our UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8458 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 due diligence and made a review, and then we did provide 2 responsive discovery. 3 MJ [COL POHL]: 4 CP [BG MARTINS]: 5 6 7 And I suspect counsel will get to that chronology as he talks ---MJ [COL POHL]: we are at. 8 9 Okay. Okay. Just to update the pleadings where Okay. Commander. LDC [MR. RUIZ]: Judge, the discovery request we submitted 10 was tied to the government of Saudi Arabia, obviously since 11 Mr. al Hawsawi is a Saudi Arabia citizen. 12 received contained diplomatic notes from the government of 13 Pakistan. 14 received the response. 15 Pakistan and had nothing to do with Mr. al Hawsawi. The information we So if that's responsive, I would say yes, we It was concerning the government of 16 So in regards to the request and the essence of our 17 request, which has all the information, diplomatic notes and 18 cables between our government and the government of 19 Saudi Arabia, we don't have that. 20 MJ [COL POHL]: 21 CP [BG MARTINS]: Okay. Trial Counsel, response? Your Honor, we did do a search for 22 communications reflecting contacts by consular officials in 23 states of whom the five accused are nationals with the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8459 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 U.S. Government and then got that product and provided it to 2 all five teams. 3 it for the responsiveness to the requests that the different 4 teams had. 5 So he -- and we looked at this and analyzed We actually reflected that there are three pages of 6 classified material that related to Mr. al Hawsawi. 7 records reflect that you got those. 8 signed the MOU, we looked hard at the protective order you 9 signed, which says they must sign an MOU, but there is a Our Even though you have not 10 clause that states that "if not authorized by the government." 11 So in a case-specific setting, we deemed that that piece of 12 discovery could go to the accused. 13 MJ [COL POHL]: So ---- There appears to be a disconnect here of 14 what you think you gave him and what Mr. Ruiz thinks he has. 15 Would that be accurate? 16 LDC [MR. RUIZ]: Yes, Judge. And in the area of 17 discovery, that's not necessarily always unusual. 18 be better served if we can try to discuss this and see if we 19 can work that out. 20 CP [BG MARTINS]: 21 MJ [COL POHL]: 22 23 But we may I agree. Let's do that on 214A and 214 itself. that ---LDC [MR. RUIZ]: I would like to resolve the discovery UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8460 Is UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 issue first, Judge. MJ [COL POHL]: Okay. Why don't we do this: We will 3 break for lunch and reconvene at 1330, and the only two I see 4 left are the 214A and 214 itself, and then I am open to 5 discussion about any other business we can take up this week 6 or next week, if any. 7 8 9 The commission is in recess until 1330. [The R.M.C. 803 session recessed at 1133, 12 February 2015.] [END OF PAGE] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8461 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [The R.M.C. 803 session was called to order at 1328, 2 12 February 2015.] 3 4 5 6 MJ [COL POHL]: parties are again present. CP [BG MARTINS]: All General Martins, we have a return? Ms. Tarin has returned, so we are back to the way we were before her absence. 7 MJ [COL POHL]: 8 LDC [MR. RUIZ]: 9 MJ [COL POHL]: 10 The commission is called to order. LDC [MR. RUIZ]: Mr. Ruiz, 214A and 214. All right, Judge. Okay. Go ahead. Judge, it is inexplicable and 11 unacceptable and of great concern to the most senior leaders 12 in the United States Government that the air crew has been 13 held incommunicado for over 32 hours. 14 given us no explanation for holding this crew incommunicado. 15 24 crewmembers were held for over 32 hours without access to 16 United States diplomatic or consular members in 2001 in the 17 Hainan Island incident. 18 access to those 24 crew and servicemembers who we disputed 19 must have access to diplomatic and consular officials. 20 The Chinese so far have That's our dispute with China over The United States has frequently chastised Iran for 21 depriving the hikers of their right to consular 22 representation. 23 protested on May 23 of 2001, "We urge Iran to permit immediate A State Department spokesperson, Mark Toner, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8462 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 consular access by the Swiss protecting power," and that's 2 obviously an issue. 3 Americans on just four occasions over their 26-month 4 detention. 5 been acting as our surrogates since 1980 when Iran also held 6 American hostages and refused to grant access to our diplomats 7 and our consulars. 8 prisoner in North Korea got a consular visit on February 7 of 9 2014. 10 Swiss officials were given access to Of course, the Swiss officials, as we know, have Most recently, Judge, a United States Judge, that's what this motion is all about. It is 11 about meaning what we say and acting in conformity with the 12 standards that we project not only for our citizens, but for 13 those who come into our custody in complying with the law, 14 complying with our policies, and complying in the manner in 15 which our government has asked other nations to comport 16 themselves. 17 In each of the cases I have just referenced for the 18 court, we were able to obtain access to American citizens, in 19 one case four times over 26 months, in one case after 20 32 hours, and most recently on February 7, 2014, another 21 consular visit, this time in North Korea by our surrogate. 22 23 Judge, since 2003 Mr. al Hawsawi has not been allowed to meet with representatives of Saudi Arabia to speak with UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8463 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 them. 2 than one occasion to meet with their citizen, Mustafa 3 al Hawsawi, who has been held and detained by the United 4 States Government. 5 order that Mr. al Hawsawi be allowed to meet with 6 representatives from his government and that these 7 representatives who have asked our government, as we ask 8 governments throughout the world to meet with our citizens, be 9 permitted to do exactly that. 10 Representatives of Saudi Arabia have requested on more What we are simply asking you to do is to As it has been well briefed in our submission to you, 11 Judge, the Vienna Convention on Consular Relations is the 12 authority that we cite. 13 bilateral agreement between the United States and Saudi Arabia 14 which says, and I quote, "Subjects of His Majesty of the 15 Kingdom of Saudi Arabia and United States territories and 16 possessions shall be treated in accordance with the 17 requirements and received those protections and practices of 18 generally recognized international law." 19 It is Article 36. And also a In this instance we are asking that that generally 20 recognized international law and those practices include that 21 he be allowed to meet with those representatives from Saudi 22 Arabia. 23 Judge, I would like to direct your attention to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8464 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 what's been previously marked and submitted along with this 2 pleading as AE 214D (MAH) supplement. 3 consular notification and access policy of our State 4 Department. 5 bilateral agreement with Saudi Arabia and about Article 36 of 6 the Geneva Conventions with what our State Department says 7 what in 2014 they have indicated is some of the rationale for 8 that. 9 Judge, this is the And I want to follow up my comment about the So at this time I would like to publish to you, 10 Judge, a portion of that exhibit that is contained in our 11 motion for your review as well as the review of other counsel 12 in the courtroom, and I will do that utilizing the overhead 13 device. 14 15 16 17 18 19 MJ [COL POHL]: morning? LDC [MR. RUIZ]: Yes, Judge. And it was filed October 14, 2014. MJ [COL POHL]: Okay. Go ahead. Go ahead, you can put it on the overhead. 20 LDC [MR. RUIZ]: 21 MJ [COL POHL]: 22 LDC [MR. RUIZ]: 23 This is the one you gave for review this I have. I meant the big picture. Judge, I'd ask that I be allowed to publish this. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8465 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [COL POHL]: 2 LDC [MR. RUIZ]: Go ahead. If we can publish this to the overhead. 3 Judge, this is from our State Department Guide on Consular 4 Access 2014, and it basically affirms what I have just said. 5 Now, I realize you have the exhibit, so I am not 6 going to take you through every page of that exhibit. 7 essentially three or four that I would like to highlight and 8 to -- just for the sake of argument. 9 that simply affirms that it is not my say-so. I have So this is the first one This is a 10 representative of the United States Government who is 11 entrusted with our foreign policy and our diplomacy and is 12 entrusted with the care of our citizens overseas. 13 their policy, this is a mutual obligation. 14 And this is Judge, I have a second portion of that exhibit, which 15 is page 29 of the same exhibit that I have recommended that 16 I'd ask you to review and then afterwards seek permission to 17 publish. 18 MJ [COL POHL]: 19 LDC [MR. RUIZ]: 20 I'm waiting for it to be published to the overhead, Judge. 21 MJ [COL POHL]: 22 LDC [MR. RUIZ]: 23 Go ahead and publish it. Okay. Judge, the blue tab is where I want to focus your attention where this motion ultimately keys in on, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8466 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 and it is, as our State Department has recognized, the most 2 significant consequence perhaps is that the United States will 3 be seen as a country that takes its legal obligations 4 seriously. 5 And I know that when I am finished with my 6 presentation, either the General or one of his representatives 7 is going to stand up and is going to argue -- and if it is 8 consistent with the motion and the legal position they have 9 taken in their response to this motion, they are going to 10 argue a position that is completely inapposite to our own 11 State Department as well as to the methods and procedures that 12 we have followed when we seek access to our citizens abroad. 13 14 15 I'm trying to figure out how to get this off the screen here. There we go, okay. Got it. Judge, this is the third of four that I would like to 16 highlight for the court, and I would ask that after your 17 review I be allowed to publish that. 18 19 20 MJ [COL POHL]: Go ahead, I have seen it. Put it on the big screen. LDC [MR. RUIZ]: Judge, the portion of that that I wish to 21 highlight is this is, of course, guidance to state, federal 22 governments, and government officials, including judges, and 23 part of it sets it forth in a litany of questions. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8467 It says, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 "Do I have to permit a consular officer to have access to a 2 detainee?" 3 we can all read it for ourselves. 4 5 6 7 8 9 I don't have to read the exhibit myself, I think Judge, I would ask you to review this and allow me to publish that as well. MJ [COL POHL]: ahead. Go Go ahead. LDC [MR. RUIZ]: here. You can put it on the big screen. Yes, sir. I'm just looking for one piece As I just indicated, of course, Your Honor, the 1933 10 bilateral agreement makes reference to customary international 11 law and all of the protections afforded under customary 12 international law, and it is an agreement between ourselves 13 and the government of Saudi Arabia. 14 Of course, here we talk about the Department of State 15 taking the view that "consular notification and access is a 16 universally accepted -- universally accepted basic practice 17 that should be followed even for nationals of other countries 18 who are not a party to the VCCR or other applicable bilateral 19 agreements." 20 practices should be followed even in a situation unlike the 21 one we have here, where not only Saudi Arabia has a bilateral 22 agreement with Mr. Hawsawi, but we have consistently said that 23 we will abide by these protections. Our own State Department says that these And, of course, the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8468 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 underlying reason -- one of the underlying reasons is that we 2 seek reciprocity in treatment of United States citizens 3 abroad. 4 And so, Judge, at the end of the day, we are only 5 asking you to affirm and to permit, to direct that we comply 6 with our law, that we comply with the guidance from our State 7 Department, and then we do for people who are detained and 8 imprisoned by us what we ask our own government to do for our 9 own citizens, and we are asking you to grant the relief we 10 11 have requested, Judge. MJ [COL POHL]: Thank you. Let me ask you a question. The government 12 response says this is really a writ of mandamus and then 13 discusses the law around those writs. 14 LDC [MR. RUIZ]: No. Do you agree? I think you can simply order that 15 Mr. Hawsawi -- Mr. Hawsawi have access to representatives from 16 the government of Saudi Arabia. 17 MJ [COL POHL]: 18 LDC [MR. RUIZ]: 19 MJ [COL POHL]: 20 LDC [MR. RUIZ]: Who am I ordering? The United States Government. Okay. And I also think that you have the 21 inherent authority, and we have cited that in our motion here, 22 to provide a remedy any time there is, throughout the course 23 of the process, inherent unfairness in the proceedings. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8469 The UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Military Commissions Act provides you that authority. 2 case, you know, I think very clearly and consistently that 3 Mr. al Hawsawi's rights and Saudi Arabia's are not being 4 complied with. 5 In this And if you just give me one second I will -- the 6 proposition we cited for that, Judge, was R.M.C. 906 for that 7 authority, which it says that the commission has regulatory 8 authority to order, to cure a defect and to deprive a 9 defendant of a right in fundamental fairness. 10 That's from the military commissions R.M.C. 906. 11 Additionally, we have also cited in our pleading the 12 case of Sanchez-Llamas v. Oregon, 548 U.S. 331, and that case 13 says when you -- when a criminal defendant raises an 14 Article 36 claim during trial or a violation during trial, the 15 court can make -- the court can make appropriate 16 accommodations. 17 Judge, in Sanchez-Llamas v. Oregon, 548 U.S. 331. 18 And that's referenced in our pleading again, And, of course, we have affirmed -- the United States 19 has affirmed that we recognize customary international law. 20 The State Department acknowledges that. 21 some federal authority, Judge. 22 split in the Seventh Circuit, Jogi v. Voges, 480 F.3d 822, 23 which does indicate that at least in that court's judgment the And there is also There is a Federal Circuit UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8470 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 convention grants private rights to aliens. 2 you have to approach this as a writ of mandamus, I think there 3 is ample, ample authority from you to issue such an order. 4 MJ [COL POHL]: So I don't think Thank you. 5 Trial Counsel? 6 Mr. Ruiz, before you walk away, let me just ask you a 7 question. 8 that over the lunch? 9 Is 214A still in play, or were you able to resolve LDC [MR. RUIZ]: 214A still needs a ruling. The way we 10 were able to move forward on that is that General Martins and 11 the prosecution and I agree that the government of Saudi 12 Arabia had, in fact, on multiple occasions requested to meet 13 with Mr. al Hawsawi. 14 documentation to confirm that, but we agreed to, I guess, a 15 stipulation of that. 16 The prosecution did not provide the Their position is that until we sign the MOU, we 17 cannot have access to the actual documents. 18 remains that we should have access to those documents. 19 MJ [COL POHL]: 20 LDC [MR. RUIZ]: 21 22 23 Our position Okay. So in that sense 214 still needs a ruling, but I don't think it needs further argument. MJ [COL POHL]: Okay. What I am going to ask you to do, since it was filed a long time ago, is I need an updated UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8471 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 pleading from both sides on the current status of it, and then 2 you will get a ruling without further argument on it. 3 LDC [MR. RUIZ]: 4 MJ [COL POHL]: 5 On 214A, yes. General Martins? 6 CP [BG MARTINS]: 7 MJ [COL POHL]: 8 CP [BG MARTINS]: 9 On 214A? Good afternoon, Your Honor. Good afternoon. I would like to first address the core legal issue here, which is whether the accused al Hawsawi has 10 an individual judicially enforceable right under the Vienna 11 Convention on Consular Relations and the 1933 provisional 12 bilateral agreement referenced by counsel, first issue, legal 13 issue. 14 And then second, I would like to speak to this topic 15 you were referring to at the end of the argument of counsel 16 relating to the standard of review, the standard you should be 17 looking to apply, whether it's mandamus or some other 18 standard. 19 So first, the question of whether the accused, 20 Mustafa al Hawsawi, a Saudi national, is given under the 21 Vienna Convention on Consular Relations and this bilateral 22 agreement an individual judicially enforceable cause of 23 action. The context is important. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8472 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 The accused stands charged of multiple sworn concrete 2 allegations in a publicly available charge sheet; that the 3 accused personally was involved in al Qaeda's terrorist 4 self-named Planes Operation that resulted in the crashing of 5 four airliners into large buildings and the killing of 2,976 6 persons. 7 and the information that the accused has adequate, robust 8 legal representation. 9 That charge sheet is fully available, as is the word The consular treaty states in its preamble, "The 10 purpose of such privileges and immunities in the treaty is not 11 to benefit individuals, but to ensure the official performance 12 of functions by consular posts on behalf of their respective 13 states." 14 rights vest in the consular officials to do the duties that 15 the countries agreeing in this treaty seek to have done in 16 other countries' territorial limits. 17 And it does refer to rights of access, but those An important distinction is between whether a treaty 18 is self-executing and whether it is giving an individual right 19 of action. 20 agreement are self-executing, and that means there is nothing 21 additional that Congress needed to do to give it domestic 22 effect. 23 publications do to officials, that this treaty without a local The consular treaty and the 1933 provisional Hence, the need to explain, as State Department UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8473 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 law that you might point to needs to be taken seriously, needs 2 to be given its due effect. 3 in there under the Article 36 provision, speaking now to the 4 Vienna Convention, addressed the consular's office, consular 5 officials' access and notification, receipt of notification 6 that someone has been arrested. 7 But the rights that are discussed So context is very important. This right is not an 8 unfetterred right. 9 channels through appropriate officials to say yes, we want to It is to be exercised through diplomatic 10 see this individual; but the powers retain the authority to 11 apply other sources of law and other rights and privileges 12 that bear upon that relationship. 13 intended to be effected through diplomatic channels. 14 So it's something that is Now, the controlling case in our reviewing court on 15 the Vienna Convention on Consular Relations' ability to be 16 invoked by an individual is the Allaithi v. Rumsfeld and other 17 DoD officials' case that we submitted in our supplement, 18 AE 214B of August 2014. 19 United States Court of Appeals for the District of Columbia 20 Circuit, and it deals with a Guantanamo detainee. 21 It's a June 2014 decision by the Your Honor, I see no way around this case for 22 Mr. Ruiz or for this court. 23 the Vienna Convention does not provide that individual right This case very clearly says that UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8474 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 of action. 2 it's doubting the argument of detainee Allaithi in how robust 3 he makes the argument, it also cites to two cases approvingly 4 that I also believe are worth the court's attention. 5 And I say that it's that clear because although The first one is a tough one to pronounce, United 6 States versus -- and I think I am saying this correct, 7 Emuegbunam, and I will spell it for the record, 8 E-M-U-E-G-B-U-N-A-M. 9 to 94. That's at 268 F.3d 377, point cite 392 This is a Sixth Circuit case that clearly rejects the 10 very Article 36 argument that Mr. Ruiz is making and states 11 that it is a consular official right, and the D.C. Circuit 12 points specifically to those pages as -- that it's agreeing 13 with those pages. 14 The second case that the D.C. Circuit cites is 15 United States v. Jimenez-Nava, 343 F.3d 192, and the 16 D.C. Circuit points us to 197, 198. 17 case that specifically addresses whether an individual gets a 18 right. 19 the two most important cites within it. 20 That's a Fifth Circuit So that's the controlling case, the Allaithi case, and The consular law is directed toward making sure that 21 consuls know when the citizens of their country are in 22 detention, are they getting an attorney. 23 they are interested, could be watching this very proceeding Saudi officials, if UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8475 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 from the United States. 2 light of the nature of the charges and the context, this court 3 ought to defer to the executive branch, the elected branch 4 officials and the Congress, in how this is set up and how it 5 is to be implemented, how the consular relations should be 6 implemented. 7 They can talk to Mr. Ruiz. And in Your Honor, that brings me then to the standard of 8 review that we recommend. 9 of a writ of mandamus and that that standard should be We do believe this is in the nature 10 applied. 11 to direct to a person or officer an order that commands the 12 performance of a particular duty that results from either the 13 official station of the one to whom it is directed or by 14 operation of law. 15 traditionally been when brought before any court, a direction, 16 a command to officers. 17 direct the Secretary of Defense and other appropriate 18 officials to allow access, do something within this facility. 19 So it is a writ even though it comes into our process through 20 Rules for Military Commission 905 and 906. 21 extraordinary remedy that they are asking you to take. 22 23 We have an individual coming before you asking you That's what a writ of mandamus has And Mr. al Hawsawi is asking you to It is an The standard for a writ of mandamus and the authority, best authority is the Supreme Court case of UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8476 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Cheney v. United States District Court for the District of 2 Columbia, 542 United States 367 at pages 380 and 381. 3 court lays out three tests. 4 has no other adequate means of attaining the desired relief, 5 and looking at what his cognizable relief is, the adequate 6 representation, the awareness of his government officials that 7 he has the rights to a fair trial. 8 here. 9 representation that he has, this is an adequate means of The The first is that the individual Those are all present And in light of the context of the body of 10 obtaining the desired relief and to communicate his status 11 with his country. 12 The second test is that the writ is appropriate under 13 the circumstances. 14 that allows one to look at the specific nature of the charges, 15 what are the executive branch officials doing, and how are 16 they carrying out their obligations. 17 would say again that cuts strongly against taking this 18 extraordinary relief. 19 Again, in light of -- and this is a test In light of that, I The third test is that he has a clear and 20 indisputable right to the issuance of the writ. 21 of the D.C. Circuit's case in Allaithi, and really no 22 persuasive authority on the other side -- there is one Seventh 23 Circuit case cited in the materials for this, but even if you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8477 And in light UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 were to grant that there is a dispute based on that one 2 circuit's analysis that, if you look at it, you see that it's 3 not persuasive when compared to Allaithi, in your jurisdiction 4 you certainly can't say that he has a clear and indisputable 5 right to the issuance of the writ. 6 So in light of that test, which we believe is the 7 right one to apply before inserting a judicial effort into a 8 place where the foreign relations interests of the United 9 States, the national security interests carried out by dutiful 10 public officials with a full awareness of the bilateral 11 relationships involved and a commitment to ensuring the 12 consular relations integrity and carrying that out dutifully 13 around the world, that those are the people who ought to be 14 entrusted with those obligations and that the court should not 15 take this extraordinary measure in commanding through a writ 16 of mandamus the Secretary of Defense to do something. 17 Subject to your questions, I will yield the lectern. 18 MJ [COL POHL]: 19 CP [BG MARTINS]: 20 MJ [COL POHL]: 21 LDC [MR. RUIZ]: I don't, thank you. Thank you. Mr. Ruiz, anything further? Judge, again, I can only imagine what -- 22 how we would react if a North Korean general stood up in a 23 North Korean court and said the American diplomats and UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8478 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 government officials can watch on television and they can talk 2 to their lawyer, and that will satisfy their obligations. 3 fact, I don't have to imagine that. 4 real world examples of how we would not stand for that 5 argument. 6 In I have given you three And you should not stand for it either. Judge, with respect to an argument that I have 7 seen -- and I will get into some of the specifics on General 8 Martins' argument. 9 that because these men -- because Mr. al Hawsawi is charged One of the arguments you have heard is 10 with these very serious crimes, it somehow justifies this 11 alternate view or alternate interpretation of what he should 12 be allowed to have in terms of, in this particular motion, a 13 consular visit or representation. 14 I think you know this -- that the quality or the charges that 15 he faces do not drive the interpretation of our obligations. 16 And it shouldn't here either. 17 I think it's very clear -- General Martins references the Allaithi case. We 18 have rebutted that in our reply, but I will only say that the 19 essence of the Allaithi opinion was exactly that the parties 20 had not appropriately briefed this issue and the court 21 actually used some fairly colorful language to describe the 22 inadequacy of the argument that was briefed before the court 23 and then argued that we doubt that, even had it been briefed, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8479 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 the position would be a correct one. 2 essence of what the court said in that case is that bare bones 3 assertions were not enough to raise the issue before the court 4 and then have the court -- I think they said something to the 5 effect of put the flesh on the barebones argument of counsel. 6 So the representation that this is an insurmountable Nevertheless, the 7 obstacle has to be weighed against the court's own 8 observations that the argument that was presented in that case 9 was in and of itself inadequate, and therefore I don't think 10 11 it carries the weight that General Martins would accord to it. There is also a footnote in the prosecution's 12 response, and that footnote I think addresses a number, Judge, 13 of the legal arguments that they made for why the convention 14 does not create an individual right of action. 15 I want to highlight for you on that, Judge, is that in every 16 one of those cases the court was looking backwards. 17 was looking at different situations, and this was 18 post-conviction review of what had happened, and the defendant 19 was seeking relief based on the lack of access and consular 20 relations. 21 a guilty plea, dismissal of a criminal indictment, and those 22 types of issues. 23 The point that The court That involved a civil complaint, voluntariness of However, Judge, the case that we have cited for you, UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8480 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Sanchez-Llamas v. Oregon, 548 U.S. 331, says that when this 2 issue is raised at trial, you have the authority -- a trial 3 judge has the authority to provide adequate and appropriate 4 accommodations at trial. 5 to be reviewed looking backwards. 6 raising this issue. 7 In other words, we don't need this We are here now and we are I want to be very clear, Judge -- and I think you 8 know this -- this motion is not focused on asking some sort of 9 relief from this court based on the infirmity of lack of 10 consular relations. 11 pleadings and be focused on what, if any, effect or what, if 12 any, legal argument we believe attaches to not having had 13 consular access, whether it's to voluntariness or the 14 admissibility of those statements, but that's not where we 15 are. That may very well come in future 16 What we are simply asking right now is at this stage 17 of the proceedings, pretrial stage of the proceedings, we are 18 raising this issue to you. 19 to say you have the authority to appropriately accommodate at 20 trial, and we are asking you to make that appropriate 21 accommodation to simply be an order that dictates -- that 22 says, look, Mr. al Hawsawi should have the right and the 23 opportunity to meet with his foreign government. And there is very clear case law UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8481 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 The argument that there is no individual right, I 2 must also point out there was, as I said, a companion 3 pleading -- there was somewhat of a companion pleading where 4 there is a greater degree of discussion about the Iran 5 situation. 6 individual right should attach, not just to the consular 7 officials but also to the individuals most importantly. 8 9 In that case, our own government argued that an I would ask you to review that when you have the Chief Prosecutor and representative of our Armed Forces stand 10 up and say the United States takes the position now here in 11 this courtroom that viewing this on television, because of the 12 charges and because we can read a charge sheet on a publicly 13 available website, should satisfy the provisions of the 14 consular relations. 15 MJ [COL POHL]: Mr. Ruiz, how does this -- if you are 16 asking me to enforce this treaty, how does this impact his 17 representation at this trial? 18 between the treaty and this trial? 19 20 LDC [MR. RUIZ]: I mean, what's the connection You mean his access to representatives from Saudi Arabia? 21 MJ [COL POHL]: 22 LDC [MR. RUIZ]: 23 MJ [COL POHL]: Yes. Well, Judge, there is a significant ---In your view, does there need to be? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8482 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 LDC [MR. RUIZ]: There absolutely needs to be contact with Mr. al Hawsawi. MJ [COL POHL]: No, I am saying does there need to be a 4 connection between your requested relief and these 5 proceedings? 6 LDC [MR. RUIZ]: No. I think consular access is an end in 7 and of itself, which is consistent with our law and consistent 8 with our foreign policy, so I don't think there needs to be 9 that kind of nexus. 10 But if you are asking me if there is that kind of 11 nexus, the answer is yes, there absolutely is that kind of 12 nexus. And I can elaborate on that to a certain degree. 13 MJ [COL POHL]: 14 LDC [MR. RUIZ]: Go ahead. I can tell you that I have for numerous 15 months attempted to and had meetings and conversations with 16 representatives from Mr. al Hawsawi's government, the Saudi 17 Arabian embassy. 18 with Mr. al Hawsawi and confirmed what the general confirmed 19 today, that the government continued to deny that access. 20 They have expressed their desire to meet The same reasons that we have articulated for our own 21 also apply to Mr. al Hawsawi. 22 Mr. al Hawsawi's perspective and his desire to meet with the 23 government officials of Saudi Arabia, the essence of it is On our end, from UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8483 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 this, Judge -- and I will take you as far as I can in terms of 2 privilege, but there is a very important problem that we have 3 been trying to overcome, and that is a problem of trust. 4 Mr. al Hawsawi needs to meet with representatives of his 5 government because he needs their assistance and he wishes to 6 enlist their assistance in numerous tasks that relate directly 7 to his representation in Saudi Arabia. 8 9 Now -- and I am trying here not to get into too much privileged information. I have been the go-between just as 10 the government has said, and I have been the go-between now 11 for an extensive period of time. 12 have been unsuccessful in getting either really the government 13 of Saudi Arabia to fully trust me, because I'm part of the 14 government who is denying access to their own witness, and 15 Mr. al Hawsawi himself, I think, is frustrated by the fact 16 that, as his representative, I am unable to make this happen. 17 And I will tell you that I So there is an issue that is a fundamental issue of 18 trust that we have discussed and we have talked about from the 19 very beginning. 20 dependent very much on the amount of trust we are able to 21 engender with him. 22 23 Our ability to represent Mr. al Hawsawi is Here we have a situation where I have, Judge, been doing everything I can to try to put these two parties UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8484 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 together so they can have their conversation, so they can do 2 the things that they need to do. 3 defense, development of his defense, if there ever is a 4 sentencing procedure, this is critical contact that must 5 happen. 6 to do. 7 8 9 And I do believe that his Not only must it happen, it's the appropriate thing If I may have one second just to make sure I have hit all these points? MJ [COL POHL]: 10 LDC [MR. RUIZ]: 11 MJ [COL POHL]: 12 LDC [MR. RUIZ]: 13 MJ [COL POHL]: 14 CP [BG MARTINS]: 15 MJ [COL POHL]: Sure. May I have one second? Sure. That's all I have, Judge. General Martins, anything further? Nothing further, Your Honor, from us. That would appear to conclude the list of 16 standalone Hawsawi motions. 17 this scheduled to go tomorrow and next week. 18 believe anything fruitful can be done, given where we are at 19 with 292 and 350? 20 21 22 23 As I stated before lunch, we have Does either side Mr. Connell, you are standing up so you get to answer first. LDC [MR. CONNELL]: Your Honor, I would renew my request from yesterday for -- under Rule 702 for a deposition of the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8485 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 former CIA interpreter utilized by Mr. Binalshibh's team. 2 fear is that if we don't do it, we will never see him again. 3 4 CP [BG MARTINS]: My I take it you are looking to us for a response to that? 5 MJ [COL POHL]: 6 CP [BG MARTINS]: Yes. Your Honor, we believe that in light of 7 the nature of that argument and the legal requirements and 8 procedural prerequisites for a deposition, that would need to 9 be argued in a closed session. 10 11 12 13 So we would -- to the extent we all agree ---MJ [COL POHL]: Let me ask you this: Does the government oppose a deposition? CP [BG MARTINS]: Your Honor, we do oppose it, but there 14 are other aspects associated with appropriate access to 15 witnesses and evidence that we could talk about, other 16 modalities, but we oppose the motion. 17 18 MJ [COL POHL]: Mr. Connell, since they oppose it, file a motion. 19 LDC [MR. CONNELL]: 20 MJ [COL POHL]: 21 LDC [MR. RUIZ]: Yes, sir. Mr. Ruiz? Judge, just a couple of issues that I 22 have the opportunity to bring to you on motions that you can 23 rule on without argument that are currently in your UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8486 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 possession. 2 MJ [COL POHL]: 3 LDC [MR. RUIZ]: Okay. 341J is an ex parte submission that is 4 awaiting a ruling from you, as well as the AE 248 series. 5 believe you recently received some supplemental information on 6 that from the convening authority. 7 the earliest opportunity if you could address those two 8 motions. 9 10 MJ [COL POHL]: LDC [MR. RUIZ]: I I would ask you just at Okay. I would also just want to inform the 11 court that myself and my legal team are scheduled to be here 12 throughout the rest of this week and next week, given the 13 scheduling of the commissions, and should Your Honor rule on 14 our request to interview medical professionals and 15 Mr. Hawsawi's medical providers, we are in a position that we 16 could do that, either the remainder of this week or next week. 17 So I just want to inform you of that for your own purposes. 18 MJ [COL POHL]: 19 LDC [MR. RUIZ]: Okay. And along with that -- along the line 20 with that in terms of the medical records, the last batch we 21 received was, in fact, August 14 of 2014. 22 23 MJ [COL POHL]: Okay. Thank you. Trial Counsel, back to you, the question I asked UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8487 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 originally. CP [BG MARTINS]: business? 4 MJ [COL POHL]: 5 CP [BG MARTINS]: 6 MJ [COL POHL]: 7 8 9 That is if there is any additional Yes. A moment to confer? Sure. [Pause.] CP [BG MARTINS]: Your Honor, if we could receive rulings without oral argument, we would waive oral argument on the 10 discovery aspects associated with Appellate Exhibit 254. 11 is the female guards issue. 12 MJ [COL POHL]: This I have that written down as a request that 13 you had yesterday and I am considering that, but that's not 14 really my question. 15 give without oral argument, the question is whether there is 16 any in-court business we can do. 17 CP [BG MARTINS]: My question isn't what rulings you can I can do that from anyplace. Your Honor, of course with our 18 objections to the approach that Your Honor has taken to these 19 things, we would acknowledge there is no further business. 20 MJ [COL POHL]: 21 LDC [MR. HARRINGTON]: May we confer? 22 MJ [COL POHL]: Mr. Harrington? 23 LDC [MR. HARRINGTON]: Okay. Sure. Judge, mindful of your disapproval UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8488 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 of bringing things up without motions, there is a simmering 2 problem that exists right now. 3 but it is affecting all of the defendants and it's affecting 4 our ability to visit with them, and it goes to the use of 5 restraints in moving our clients no matter where they move. 6 But we have repeated problems with the way that they are 7 handcuffed and shackled. 8 9 It has only arisen recently, It has not happened before except on very rare occasions. We have never brought it to the court's attention 10 before. 11 have tried to work it out through the SJA. 12 from it. 13 it's in retaliation for something, but it is drastically 14 affecting our ability to meet with our clients. I have asked General Martins to look into it. It's something relatively recent. We We get no relief We don't know if 15 This past weekend, two of the visits that we had, our 16 client did not come because of the way that he was treated the 17 day before and the pain and suffering that he incurred on his 18 wrists as a result of it. 19 that are mentioned in the Senate report, and it just 20 continually, continually disrupts our clients and makes it 21 extraordinarily difficult for us to do the business that we 22 need to do to move these proceedings along because we 23 constantly have to deal with these issues. And it's an extension of the things And we are asking UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8489 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 the court's intervention on that in some way. MJ [COL POHL]: Mr. Harrington, can I -- I understand why 3 you mention it to me, but am I in a position to make any type 4 of position on this without hearing the other side? 5 LDC [MR. HARRINGTON]: 6 MJ [COL POHL]: 7 8 9 Judge ---- I mean, what are you asking me to do, tell them to change their restraint policy? LDC [MR. HARRINGTON]: No. I am asking them to comply with the policies that they are supposed to, Judge, and I'm 10 asking you to direct Trial Counsel to do everything that they 11 can to make sure that that happens. 12 MJ [COL POHL]: Well, if you are asking me to direct the 13 Trial Counsel to tell the JTF to comply with their procedures, 14 and you seem to be saying they are not ---- 15 LDC [MR. HARRINGTON]: 16 MJ [COL POHL]: That's correct. ---- this all kind of falls in an order to 17 follow the law. 18 but I assume you understand mine, is you are making an 19 allegation of not following things. 20 follow the rules until shown otherwise. 21 of this is maybe much different than yours. 22 23 Mr. Harrington, I understand your position, I'm assuming that they I'm sure their view If it's interfering with your ability to deal with counsel, then Trial Counsel should look into it to see if UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8490 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 there has been any type of change in policy. 2 that, absent an ability to flesh it out totally, there is 3 really not much I am going to do at this time. 4 5 LDC [MR. HARRINGTON]: But other than Thank you, Your Honor. It never hurts to have a reminder from the court. 6 MJ [COL POHL]: 7 LDC [MS. BORMANN]: 8 MJ [COL POHL]: 9 LDC [MS. BORMANN]: Okay. 10 LDC [MR. CONNELL]: Your Honor, I take your guidance as to 11 I am with you. Judge, may I? Mr. Connell was already on his way. filing a motion, but ---- 12 MJ [COL POHL]: 13 LDC [MR. CONNELL]: But you want to be heard anyway? The military commission ruled in the 14 Nashiri case that it did not have authority to cause a 15 civilian to travel from the United States to Guantanamo for 16 the purpose of a hearing. 17 If the former CIA linguist utilized by 18 Mr. Binalshibh's team is located in the United States, then if 19 the military commission follows that same position, then 20 essentially it's the equivalent of deportation cases where the 21 government deports witnesses and places them beyond the reach 22 of service. 23 MJ [COL POHL]: Oh, really? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8491 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 LDC [MR. CONNELL]: 2 MJ [COL POHL]: 3 Yes. Why can't he be ordered to appear someplace in the United States as a place of the deposition? 4 LDC [MR. CONNELL]: 5 MJ [COL POHL]: I think that's an excellent idea. I am not asking your approval. I am 6 simply stating what I kind of view what the authority is to 7 move people around, without deciding. 8 9 LDC [MR. CONNELL]: Of course. The other solution is -- and I always get in trouble on the military law. 10 civilian court there is a recognizance. 11 commission familiar with recognizance? 12 that ---- 13 MJ [COL POHL]: 14 LDC [MR. CONNELL]: In a Is the military It's the idea No, enlighten me. If a hypothetical witness is located 15 in a hypothetical place, they can be ordered by a judicial 16 body to appear again. 17 subpoena. 18 the military commission to issue a subpoena, and a subpoena 19 for the April hearing would solve this problem altogether. 20 21 It is essentially a substitute for a Rule 703 -- let me find the right -- (e)(2) allows MJ [COL POHL]: But wouldn't I then be ordering somebody to come from the United States to Cuba? 22 LDC [MR. CONNELL]: 23 MJ [COL POHL]: The answer to that is classified. Unless I use your legal fiction that I'm UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8492 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 not doing that because this person -- let's assume -- I don't 2 know whether he is here or not. 3 actual location. 4 here today ---- I don't want to address his I'm saying hypothetically if a person is 5 LDC [MR. CONNELL]: 6 MJ [COL POHL]: Hypothetically, yes. ---- and I have no subpoena power to order 7 him to come from the United States into Cuba, but if he 8 happens to be here, it's like serving -- you've been served. 9 10 11 12 LDC [MR. CONNELL]: MJ [COL POHL]: Yes. So when you go back to the United States there is a ---LDC [MR. CONNELL]: Once you have served him, Your Honor, 13 where he goes and what he does is up to you as long as he is 14 back for ---- 15 MJ [COL POHL]: 16 LDC [MR. CONNELL]: 17 18 19 20 I can order him to stay in Cuba? I think that you could order him to stay at least in Guantanamo, at least. MJ [COL POHL]: Cuba. Well, I wasn't referring to the rest of I got that. LDC [MR. CONNELL]: But you -- you are not in control, I 21 take it, of his movements other than the requirement that he 22 be at a place that you designate at the time that you 23 designate it. And if that time is April and that place is UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8493 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Guantanamo, then that's where the witness has to be, the 2 hypothetical witness. 3 4 5 MJ [COL POHL]: If I had the hypothetical authority to order a witness to come to a foreign country. LDC [MR. CONNELL]: You are not ordering a witness in that 6 hypothetical to come to a foreign country. 7 witness to appear. 8 what countries that witness chooses to be in before the 9 witness has to appear is up to the witness, not to you. 10 11 You are ordering a And whether that witness chooses to -- are not ordering him to move anywhere. MJ [COL POHL]: Mr. Connell, if you want to file some type 12 of a brief that would give me that authority, I will look 13 forward to reading it. 14 15 16 17 18 19 LDC [MR. CONNELL]: MJ [COL POHL]: But I need a ruling on my I am unfamiliar with that type of process in a military court. LDC [MR. CONNELL]: I still need you to rule on my request. MJ [COL POHL]: 21 LDC [MR. CONNELL]: 23 Yes, sir. request now. 20 22 You Which request is that? The request to issue a subpoena or a recognizance or order the witness to be here in April ---MJ [COL POHL]: I am unfamiliar with the recognizance UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8494 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 procedure because I have never done it before, so I don't 2 know. 3 for a witness to come from the United States to Cuba, 4 Guantanamo Bay. 5 subpoena for a witness in the United States to be at a 6 particular place at a particular time to be subject to a 7 deposition. 8 9 10 I am unfamiliar with the authority to order a subpoena I am familiar with the ability to issue a So you say you want some type of ruling on your -- I am not sure what you want from me now. what I consider my authority. 11 LDC [MR. CONNELL]: 12 MJ [COL POHL]: I take it it is denied. The answer right now is I am not granting 13 anything until I get a written motion. 14 it. 15 16 17 18 19 I'm telling you that's LDC [MR. CONNELL]: I will defer ruling on Well, deferring ruling makes the answer predetermined because of ---MJ [COL POHL]: If that's how you determine it, then that's fine. LDC [MR. CONNELL]: It's not me who is determining it. 20 like one of the remedies you have suggested. 21 subpoena remedy ---- 22 23 MJ [COL POHL]: I I like the If you are asking me to order a deposition right now, that request is denied. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8495 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 LDC [MR. CONNELL]: And with respect to some sort of 2 process to require the witness to be here in April, that 3 request is denied for now? 4 MJ [COL POHL]: I am not going to grant or deny or rule on 5 a legal procedure I am totally unfamiliar with. 6 answer to that one. 7 so be it. So if you take that as a de facto denial, 8 LDC [MR. CONNELL]: 9 MJ [COL POHL]: 10 Thank you, Your Honor. Ms. Bormann? LDC [MS. BORMANN]: 11 witnesses whatsoever. 12 commission. 13 That's my I have nothing to do with any I do have a question, though, for the On Tuesday it was reported -- you filed a notice, and 14 I'm unfamiliar with the number, about the EO complaint that 15 you never received a copy of. 16 3 ---- 17 MJ [COL POHL]: 18 LDC [MS. BORMANN]: I don't remember the AE number, I know what you are talking about. On Tuesday we were informed that 19 findings were made pursuant to that EO complaint and that the 20 appellate review process had begun. 21 were informed of what those findings were. 22 23 MJ [COL POHL]: I am wondering if you We are slightly premature here because there is a motion on this, but I will tell you what I know UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8496 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 right now. 2 LDC [MS. BORMANN]: 3 MJ [COL POHL]: Thank you. I was verbally informed about the EO 4 complaint on the same day I sent notice to everybody. 5 my sum and substance of the knowledge of it. 6 thing was an e-mail request to my staff for my bio by the 7 investigating officer, which since it was a public document we 8 saw no reason to -- I have had no contact whatsoever, I have 9 directed any contact be done with my office, and I have told That is The only other 10 my office to tell them I do not intend and will not be 11 interviewed in this process, and I've seen zero paper on it. 12 13 14 LDC [MS. BORMANN]: If you receive a copy of the findings, I request you inform the parties ---MJ [COL POHL]: I will update everybody sua sponte 15 anything I hear, but that's the sum and substance of my 16 knowledge. 17 LDC [MS. BORMANN]: 18 LDC [MR. RUIZ]: Thank you. Judge, if I may, that -- to me, that 19 exchange right there I think is akin to a voir dire. 20 want to preserve the right for Mr. al Hawsawi the ability to 21 voir dire you or ask for you to be a witness at a future time. 22 We do not consider that to be our opportunity to do that. 23 MJ [COL POHL]: I understand. It was only a supplemental UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8497 I simply UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 update, but it has nothing to do with what will happen during 2 the motion that's been filed and discussed. 3 LDC [MR. RUIZ]: I understand that. I just wanted to make 4 it very clear, since it came up, that at least our position is 5 that you are a witness, and a voir dire would not be enough to 6 satisfy that requirement. 7 right now. 8 MJ [COL POHL]: I want to make that very clear That's fine. That being said, commission 9 will be in recess -- not yet -- until April, but understand 10 there are some things that need to happen so we can meet in 11 April, so we will see how they progress. 12 13 14 That being said, the commission is in recess. [The R.M.C. 803 session recessed at 1426, 12 February 2015.] [END OF PAGE] 15 16 17 18 19 20 21 22 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 8498