UNCLASSIFIED//FOR PUBLIC RELEASE MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA AE359 UNITED STATES OF AMERICA v. ABD AL-RAHIM HUSSEIN MUHAMMED ABDU AL-NASIDRI DEFENSE MOTION REQUESTING THE ACCUSED BE HOUSED AT THE ELC DURING THE HEARINGS COMMENCING 7 SEPTEMBER AND THEREAFTER 7 September 2016 1. Timeliness: This motion is filed within the timeframe established by Rule for Military Commission (R.M.C.) 905 and pursuant to Military Commissions Trial Judiciary Rule of Court (R.C.) 3.7.c.(1). 2. Relief Requested: The accused moves this Commission to order that he remain in the holding area in the ELC during the nights between the court sessions scheduled for 7-9 September and during the court sessions to be held thereafter. 3. Overview: The accused is housed at Camp Seven and is transported to and from every day prior to and after hearings. This transportation makes him ill to the point of vomiting. If he takes medication to prevent illness, he has difficulty stayi ng awake and concentrating. To avoid becoming ill and vomiting, he cannot eat the evening before or morning of court. Thus, over the course of a several day hearing, Mr. Al-Nashiri may only consume at most, one meal per day and often he eats nothing during the course of hearings. Additionally, this transportation is difficult for Mr. Al-Nashiri mentally due to his Complex PTSD. Finally, when he returns to Camp Seven it is difficult for him to reflect upon the day's events and prepare for the next day due to the circumstances in which he is housed at Camp Seven. Accordingly, the accused requests that he not be returned to Filed with TJ 7 September 2016 Appellate Exhibit 359 (Al-Nashiri) Page 1 of6 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE Camp Seven during the evenings between cou1t sessions, but remain m the secure holding cells between sessions. 4. Burden of Proof: The defense bears the bmden of persuasion as the moving party on this motion and the standard is preponderance of the evidence. R.M.C. 905(c). Denial of the motion will violate the defendant's rights under the Fifth, Sixth, and Eighth Amendments to the United States Constitution, the Detainee Treatment Act, the Military Commissions Act of 2009, numerous treaty obligations of the United States and fundamental fairness. 5. Facts: The accused is housed at Camp Seven and is transported to and from every day prior to and after hearings. This trip makes Mr. Al-Nashiri dizzy and ill to the point of vomiting. If he does not take medication , he cannot eat the night before or morning of travel because he will vomit dw·ing or after transport. If he takes medication to prevent illness and vomiting, he has difficulty staying awake and concentrating. Additionally, this transp01tation is difficult for Mr. Al-Nashiri mentally due to his untreated Complex PTSD. When he finally returns to Camp Seven, it is difficult for him to reflect upon the day 's events and prepare for the next day due to the circumstances in wh ich he is housed at Camp Seven. 6. Argument: Behind the Courtroom at the ELC are several holding cells. Each of these cells is extraordinaril y secure. Indeed it is realistically impossible for the accused to escape from the cells, much less the facility at the ELC. Therefore, the accused 's request is not only reasonable, but will promote a more just, fair and transparent proceeding. Mr. Al-Nashiri wants to attend as many of the court proceedings as possible; however, to attend more than two or three days consecutively makes him either weak, ill or both. A 2 Filed with T J 7 September 2016 Appellate Exh bit 359 (Al-Nashiri) Page 2 of 6 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE defendant who is in cou1t, but cannot concentrate or is too ill or weak to effectively assist his counsel or assist in his own defense is effectively deprived of the opportunity to pruticipate in his defense in violation of his constitutional rights guru·anteed by the 5th, 6th, and gth Amendments to the United States Constitution. The prosecution may clai m that there is a sec urity risk to the accused if he remains overnight at the ELC . A curso1y examination of the facilities would demonstrate the ridiculousness of this claim. Moreover, should the prosecution make this claim, the accused would request an evidentiru·y herufog (closed, if necessru·y). The prosecution may claim that JTF does not have the manpower to accommodate this request. According to published reports, there are approximately 2,000 guards for some 60 Guantanamo detainees, most of whom ru·e cleru·ed for release. At a ratio of about 33 guru·ds per detainee, JTF is surely flexible enough to guard a small, 50 yeru· old man , locked in a secure cell. Should the prosecution make this claim, the accused would request an evidentiru·y heru·ing (closed, if necessru·y). If JTF claims that meals ru·e a problem, the defense will provide the accused with food from one of the Guantanamo Bay facilities. The food will be provided to the JTF Guard Force for inspection and they can deliver it to Mr. Al-Nashiri. Should the prosecution make this claim, the accused would request an evidentiary hearing (closed, if necessru·y). In short, there is no reason other than bureaucratic inflexibility, prosecutorial cruelty or judicial unwillingness to contest even the irrational concerns of JTF that should stand in the way of the minimal relief the accused seeks. 3 Filed with T J 7 September 2016 Appellate Exh bit 359 (Al-Nashiri) Page 3 of 6 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE The accused is on trial for his life. The prosecution seeks to kill him despite his four years of to1ture in United States custody and twelve years of abuse, inflicted upon him at Guantanamo Bay and the Jack of appropriate medical care at Guantanamo that leaves his Complex PTSD untreated. It should not be too much to ask that JTF, the prosecution, and this Commission exercise a minimal amount of flexibility to allow Mr. Al-Nashiri to participate meaningfully in his defense. 7. Oral Argument: The defense requests oral argument on this motion. 8. Witnesses: a. JTF-GTMO Commander or his designee who is responsible for security at the ELC b. Mr. Al-Nashiri c. Senior Medical Officer responsible for Mr. Al-Nashiri ' s care 9. Conference with Opposing Counsel: The prosecution opposes this motion. I 0. List of Attachments: a. Certificate of Service, dated 7 September 2016 (1 page) Respectfully submitted, Isl Richard Karn men RICHARD KAMMEN DOD Appointed learned Counsel Isl Jennifer Pollio JENNIFER POLLIO LCDR, JAGC, USN Detailed Defense Counsel 4 Filed with T J 7 September 2016 Appellate Exh bit 359 (Al-Nashiri) Page 4 of 6 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE ATTACHMENT A Filed with TJ 7 September 2016 Appellate Exhibit 359 (Al-Nashiri) Page 5 of 6 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE CERTIFICATE OF SERVICE I certify that on 7 September 2016, I electronically filed the forgoing document with the Trial Judiciary and served it on all counsel of record via e-mail. Isl Richard Kammen Richard Kamrnen, #5064-49 KAMMEN &MOUDY 135 North Pennsylvania St. Suite 1175 Indianapolis, IN 46204 (317) 236-0400 Richard@kammenlaw.com Filed with TJ 7 September 2016 Appellate Exhibit 359 (Al-Nashiri) Page 6 of 6 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA AE359A UNITED STATES OF AMERICA v. ABD AL RAHIM HUSSA YN MUHAMMAD AL NASHIRI Government Response To Defense Motion Requesting The Accused Be Housed At The ELC During The Hearings Commencing 7 September And Thereafter 21September2016 1. Timeliness The government timely files this response pursuant to Military Commissions Trial Judiciary Rule of Court 3.7.d.(1). 2. Relief' Sought The government respectfully requests that the Commission deny the defense motion to hold the accused in one of the individual cells located at the Expeditionary Legal Center ("ELC") during any futu re sessions. 1 3. Overview The accused is charged with violations of the law of war that include extreme acts of violence during an attack on the USS COLE (DDG 67), which resulted in the deaths of 17 United States Sailors and serious injury to at least 37 additional service members. The accused has been deemed a high-value detainee ("HVD") and, as such, is subject to the same procedures and policies implemented and enforced by Commander, JTF-GTMO, and his staff as all other HVDs. Those procedures and policies require that the accused be housed in an appropriate L The accused's motion is moot as to the September 2016 sessions. Th is response will treat the accused's motion as a request for relief as to all future sessions or hearings. Filed with TJ 2 1 September 2016 Appellate Exhibit 359A (Al-Nashiri) Page 1 of 13 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE detention facility designated by Commander, JTF-GTMO. The accused seeks an order from this Commission that "he remain in the holding area in the ELC dming the nights between the court sessions scheduled for 7-9 September and dwfog the cou1t sessions to be held thereafter." AE 359 at 1. Commander, JTF-GTMO, requires that HVDs be housed in a manner within the requ irements ofrelevant statutes and regulations and consistent with his obligation to maintain the safety and security of the detainees and the guard force. Where Commander, JTF-GTMO, sets procedures and pol icies regarding the safety and security of the detainees and the guard force, the Commission should grant Commander, JTF-GTMO, deference because such procedures and policies are reasonably related to a legitimate government interest. The accused has not made any argument or cited any authorities that even remotely show that the procedures and policies governing the handling of HVDs are not reasonably related to a legitimate government interest. The ELC holding cells are not an appropriate facility to house HVDs, and requiring Commander, JTF-GTMO, to redirect resources from the detention facility to the ELC holding cells, would drain resources and unnecessarily compromise the safety and secmity of the accused and the guard force. The Commission should allow Commander, JTF-GTMO, to establish policies and procedures that fu1ther his mission of effectively managing the detention facility and the HVDs. Accordingly, the Commission should deny the defense motion. 4. Burden of Proof As the moving party, the defense must demonstrate by a preponderance of the evidence that the requested relief is warranted. R.M.C. 905(c)(l)-(2). For the accused to prevail on his motion, he must prove by a preponderance of the evidence that the procedures employed by JTF-GTMO are not reasonably related to a legitimate government interest. Florence v. Board of 2 Filed with T J 21 September 2016 Appellate Exhibit 359A (Al-Nashiri) Page 2 of 13 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFI ED//FOR PUBLIC RELEASE Chosen Freeholders of the County of Burlington, 132 S. Ct. 1510, 1515-16 (2012); Turner v. Sqfely, 482 U.S . 78, 89-90 ( 1987); Bell v. Wo(fish, 441 U.S . 520, 538-39 (1979). 5. Facts Abd Al Rahim Hussayn Muhammad Al Nashiri ("accused") is charged with multiple offenses under the Military Commissions Act of 2009 ("M.C.A.") relating to his participation in al Qaeda's Boats Operation, which included the attacks on USS COLE (DOG 67) on 12 October 2000; the MV Limburg on 6 October 2002; and the attempted attack on USS THE SULLIVANS (DOG 68) on 3 January 2000. The attack on USS COLE (DOG 67) resulted in the deaths of 17 United States Sailors, injw·y to at least 37 additional United States Sailors, and significant property damage. He is presently housed at the GTMO detention facility in housing specifically designated for HVDs. Commander, JTF-GTMO, is responsible for managing the detention facilities located at United States Naval Base, Guantanamo Bay, Cuba. Commander, JTF-GTMO, establishes policies and procedures in fwtherance of his mission to manage a safe and secure detention facility. To that end, Commander, JTF-GTMO, has developed policies and procedures applicable to all HVDs, including the manner in which HVDs may be transported and housed . The accused is housed in a detention facility located at the United States Naval Base, Guantanamo Bay, Cuba. The detention facility is designed and staffed for the specific purpose of housing HVDs. The ELC and ELC holding cells are not designed or staffed to quarter HVDs or any other detainees. It is important to note that the ELC holding cells are designated as temporary secure working areas ("TSW A").2 2 By regulation, a TWSA must not be used more than fo1ty (40) hours per month and typically no longer than twelve (12) months in the same location. Because the ELC in Guantanamo is expeditionaiy, application can be made to renew the TSWA designation at the end of each year. However, no waiver/approval process exists to request deviations of the forty (40) hour mle. 3 Filed with TJ 21 September 2016 Appellate Exhibit 359A (Al-Nashiri) Page 3 of 13 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE 6. Law and Argument The accused seeks an order from this Commission that "he remain in the holding area in the ELC during the nights between the cowt sessions scheduled for 7-9 September and during the cou1t sessions to be held thereafter." AE 359 at 1. He asserts, without more, that failure to grant this relief will result in violation of various rights of the accused, including his rights under the Fifth, Sixth, and Eighth Amendments to the United States Constitution, the Detainee Treatment Act, the Military Commissions Act of 2009, numerous treaty obligations of the United States and fundamental fairness. AE 359 at 2. The accused provides no authority to suppo1t his position.3 He further indicates that "if the JTF claims that meals are a problem," the defense will provide the accused "with food from one of the Guantanamo Bay facilities. The food will be provided to the JTF Guard Force for inspection and they can deliver it to Mr. Al-Nashiri." AE 359 at 3. These requests for special, temporary housing and an outside meal plan should be summarily denied without an evidentiary hearing. Commander, JTF GTMO, has the responsibil ity of managing the detention facilities in a safe and secure manner. To that end, Commander, JTF GTMO, has instituted policies and procedW"es to maintain security aboard the detention facilities located at United States Naval Base, Guantanamo Bay, Cuba. The defense asks the Commission to overturn those policies and 3 The accused asse1ts that the denial of his motion will violate vruious rights of the accused, including the defendant's rights under the Fifth, Sixth, and Eighth Amendments to the United States Constitution, the Detainee Treatment Act, the Military Commissions Act of 2009, numerous treaty obligations of the United States and fundamental fairness. AE 359 at 2. Absent any explanation as to how those rights are implicated in his motion and under the facts he alleges, the Commission should reject such boilerplate language. See Harding v. Illinois, 196 U.S. 78, 87 (1904) (reasoning that when "no authorities were cited nor ru·gument advanced in suppo1t of the assertion that [a] statute was unconstitutional ... the point, if it could othe1wise be considered, was to be deemed waived"); United States v. Heijnen, 215 F. App'x 725, 726 (10th Cir. 2007) ("We nevertheless reject these ru·guments because they are unsuppo1ted by legal argument or authority or by any citations to the extensive record of the proceedings ... [A]ppellant' s issues ru·e not supported by any developed legal argument or authority, and we need not consider them."). 4 Filed with TJ 21 September 2016 Appellate Exhibit 359A (Al-Nashiri) Page 4of13 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFI ED//FOR PUBLIC RELEAS E order the Commander, JTF-GTMO, to set aside his operational decisions, redirect resources from the detention facilities to the ELC holding cells, and otherwise ignore the established policies that enable the Commander to effectively manage the detention facilities. The defense, however, offers no legal basis to support its requested relief. This paucity of authority is understandable because the law is clear; the Commission should, as it has done previously, defer to Commander, JTF-GTMO, on matters relating to the management of the detention facility. See Bell v. Wo!fish, 441 U.S . 520, 540 (1979) (finding that where an accused alleges that he is deprived of libe1ty without due process, the dispositive inquiry is whether the practice or policy in question is reasonably related to a legitimate governmental objective); see also Turner v. Safely, 482 U.S . 78, 89-90 (1987) (finding that "when a prison regulation impinges on an inmate's constitutional rights, the regulation is valid if it is reasonably related" to a legitimate government interest, and "courts should be pruticularly conscious of the measure of judicial deference owed" to government officials in such circumstances).4 As the United States Supreme Court has noted: [T]he inquiry of federal coUits into prison management must be limited to the issue of whether a pruticu lru· system violates any prohibition of the Consti tu tion or in the case of a federal prison, a statute. The wide range of "judgment calls" that meet constitutional and statuto1y requirements ru·e confided to officials outside of the Judicial Branch of Government. Bell, 441 U .S. at 562. Here, Commander, JTF-GTMO, has determined that all HVDs must be housed in specific detention facilities, and that such detainees may not sleep in any other facility, including the ELC holding cells. This determination is reasonably related to a legitimate government interest, as it 4 The United States Court of Appeals for the Distiict of Columbia Circuit has held that the Turner "deferential standard applies to military detainees as well as p1isoners." Hatim. v. Obama, 760 F.3d 54, 58 (D.C. Cir. 2014). 5 Filed with TJ 21 September 2016 Appellate Exhibit 359A (Al-Nashiri) Page 5 of 13 UNCLASSIFIED//FOR PUBLIC RELEAS E UNCLASSIFIED//FOR PUBLIC RELEAS E was made in fu1therance of the Commander's responsibility to manage the detention facility in a safe and secure manner. The Supreme Court has specifically found that the effective management of a detention fac ility is a val id objective: It is enough simply to recognize that, in addition to ensuring the detainees' presence at trial, the effective management of the detention facility once the ind ividual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment. Bell, 441 U.S . at 540; see also Florence, 132 S.Ct. at 1515 (where the Supreme Court fou nd that main taining safety in detention fac ilities requires the expertise of detention authorities "who must have substantial discretion to devise reasonable solutions to the problems they face."); Block v. Rutherford, 468 U.S . 576, 583 (1984) (where the Supreme Court recognized the deference owed to prison officials and rejected a constitutional challenge to a blanket prohibition on contact visits); United States v. Ghailani, 751F.Supp.2d508, 515 (S.D.N.Y. 2010) (finding that "[t]he challenged prison regulation - namely, the requirement of visual inspection of defendant's body cavities as part of a standard visual search performed whenever he travels to or from court-is justified by the legitimate governmental interest in protecting the safety of prison and cowt personnel and other inmates."). In this case, as the Commission already observed, the Commission should not interfere with policies that are reasonably related to a legitimate government interest. See Unofficial/Unauthenticated Transcript, at 372 ("The normal rule is [] that the Commission will not interfere with the running of a confined fac ility unless there's some showing of exceptional or extraordinary circumstances that warrant exception in this case."). The accused has wholly failed to provide any justification for the extraordinary and unwarranted relief he seeks. The accused's allegations that he suffers from treatable motion sickness when transpo1ted from the 6 Filed with TJ 21 September 2016 Appellate Exhibit 359A (Al-Nashiri) Page 6 of 13 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE detention facility to the ELC holding cell is not an exceptional circumstance that warrants the Commission assuming the operational decision making of the Commander, JTF-GTMO, nor does it support requ iring the Commander to reallocate resources from the detention facilities to the ELC holding cells to create another safe and secure detention facility appropriate for housing the accused . The Commission's previous ruling that it should not inte1fere with the running of a detention facility is consistent with substantial federal cowt precedent: In determining whether restrictions or conditions are reasonably related to the Government's interest in maintaining security and order and operating the institution in a manageable fashion, cowts must heed our warning that such considerations are paiticularly within the province and professional expertise of corrections officials, and in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expe1t judgment in such matters. Bell, 441 U.S. at 547-48. Detention practices "must be evaluated in the light of the central objective of prison administration, safeguai·ding institutional security." Bell, 441 U.S. at 547; see also Turner, 482 U.S. at 89. The accused blithely asserts that "[I]t should not be too much to ask that JTF, the prosecution, and this Commission exercise a minimal amount of flexibility." AE 359 at 10. The accused makes this uninformed assessment without any serious consideration of the significant and unjustified physical security and personal safety risks raised by housing, overnight, an HVD outside of the detention area already designed and designated to house this HVD and other violent enemies of the United States. Additionally, his motion fails to address the situation of simultaneous Commissions heaifogs and the security requirements that would be triggered if both courtrooms were in use. 5 In short, the defense does not confront any of these issues, let 5 The holding cell in Cou1troom 1, wh ich would be required for use should there be simultaneous commissions, is only suitable for tempora1y holding dming courtroom proceedings. 7 Filed with TJ 21 September 2016 Appellate Exh bit 359A (Al-Nashiri) Page 7of13 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE alone the impact on the facility from repeating the process every time there are extended cou1t sessions. Instead, he simply disparages the government by asserting that "there is no reason other than bureaucratic inflexibility, prosecutorial cruelty or judicial unwillingness to contest even the irrational concerns of JTF that should stand in the way of the minimal relief the accused seeks." AE 359 at 3. In seeking judicial modification of a detention decision made by Commander, JTFGTMO, the defense must show that the pol icy is not reasonably related to a legitimate government interest. Block, 468 at 584- 85; Bell, 441 U.S at 548. The defense has failed to do so. The Commander has established a policy whereby the accused must be housed in a detention facil ity that allows the Commander to safely and securely detain the accused and all other HVDs. The Commander assigns personnel based on his operational plans, which must account for the transportation of the HVDs to the courtroom, attorney-client meetings, medical visits, and meetings with the International Committee of the Red Cross. If the Commander were required to establish a makeshift detention facility at the ELC, he would have to shift assets, which, in tum, would leave other faci lities less secure. Moreover, the ELC is not designed or staffed to house detainees. Housing the accused in the ELC, even for a few days or simply overnight, would require the commitment of significant resources to the ELC holding cell and surrounding area. Again, the defense purposely ignores the logistics involved in maintaining the safety and security of detainees. See AE 359 at 3.6 Simply, the safety and security of the detainee, the guard force, 6 Additionally, the accused makes reference to the fact that JTF-GTMO is comprised of approximately 2,000 personnel. That number is quickly dwindling, as JTF-GTMO is reducing both its footprint and its manning requirement in light of consolidating two of the camps. also worth noting is that only a portion of the staff are internal-security or esco1t-team guards, and only a select number of them have the requisite clearance and Special Access Program ("SAP") read-ons necessruy in order to handle HVDs. 8 Filed with TJ 21 September 2016 Appellate Exhibit 359A (Al-Nashiri) Page 8 of 13 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE and other visitors at United States Naval Base, Guantanamo Bay, Cuba, would be compromised by granting the defense its requested relief. This is precisely the sort of inte1ference the Supreme Cowt has repeatedly and recently admonished cou1ts not to do. See Florence, 132 S.Ct. at 1517; Turner, 482 U.S . at 90; Bell, 441 U.S . at 547-548; Block, 468 U.S . at 584-85. As such, the Commission should deny the defense motion, as its requested relief is not supported in law. Additionally, given the absence of any cognizable reason to grant his extraordinary request, it would set a potentially perilous precedent whereby all HVDs charged in a Military Commission would be entitled to his own special and individualized housing and dietary plans. This would undermine the authority of the Commander, JTF GTMO , to institute standard protocols, insure that there is fair and even handed imposition of security measures and employ and al1ocate limited resources. Likewise, the accused's request for an evidentiary hearing should be denied. He has failed to offer even a scintilla of evidence that the practices and policies of the Commander, JTFGTMO, are not reasonably related to the Government's interest in maintaining security and order and operating the institution in a manageable fashion. As the Supreme Cowt has warned "in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations cowts should ordinarily defer to their expe1t judgment in such matters." Block, 468 U.S. at 584- 85; Bell, 441 U.S. at 548. Similarly, he has offered no legal argument or suppo1ting legal precedent for that proposition. The Commission should not therefore indulge him in an evidentiary hearing where he can rummage through the security protocols of the JTF and Jay bare those procedures that have been instituted to insure a we11 maintained and safe facility. 9 Filed with TJ 21 September 20 16 Appellate Exhibit 359A (Al-Nashiri ) Page 9 of 13 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE 7. Conclusion Commander, JTF GTMO, has the responsibility of managing the detention facilities that house the detainees. The Commander has established an operational plan for managing the detention facilities located at United States Naval Base, Guantanamo Bay, Cuba. This plan is reasonably related to the legitimate government interest of managing the detention facilities in a safe and secure manner. Thus, the Commission should defer to Commander, JTF-GTMO, on such matters and, therefore, the Commission should deny the defense motion. 8. Oral Argument The defense requests oral argument. The Commission can and should decide this matter without oral argument. See Military Commissions Trial Judiciary Rule of Cou1t 3.9(a). If the Commission, however, grants the defense an opportunity to present oral argument, the government requests an opportunity to be heard. The government also requests that the Commission limit any argument to ten (10) minutes per side. 9. Witnesses and Evidence The government does not intend to rely on any witnesses or evidence in suppo1t of this response. 10. Additional Information The government has no additional information. 10 Filed with TJ 21 September 2016 Appellate Exhibit 359A (Al-Nashiri) Page 10 of 13 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEAS E 11. Attachment A. Ce1tificate of Service, dated 21 September 2016. Respectfully submitted, !Isl! Mark A. Miller Trial Counsel LT Paul B. Morris, JAGC, USN LT Cherie E. Jolly, JAGC, USN LT Jonathan P. Cantil, JAGC, USN Assistant Trial Counsel Mark Maitins Chief Prosecutor Militaiy Commissions 11 Filed with TJ 21September2016 Appellate Exhibit 359A (Al-Nashiri) Page 11 of 13 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE ATTACHMENT A Filed with TJ 21 September 2016 Appellate Exhibit 359A (Al-Nashiri) Page 12 of 13 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEAS E CERTIFICATE OF SERVICE I certify that on the 21 st day of September 2016, I filed AE 359A, Government Response To Defense Motion Requesting The Accused Be Housed At The ELC Dming The Hearings Commencing 7 September And Thereafter, with the Office of Military Commissions Trial Judiciary and served a copy on counsel of record. !Isl/ Mark A. Miller Trial Counsel Office of the Chief Prosecutor Office of Military Commissions Filed with TJ 21 September 2016 Appellate Exh bit 359A (Al-Nashiri) Page 13of13 UNCLASSIFIED//FOR PUBLIC RELEASE