UNCLASSIFIED//FOR PUBLIC RELEASE MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA AE 434A (GOV Sup) v. Government Updated Response to Defense Motion to Compel Production of Discovery Concerning Mohammed al Kahtani KHALID SHAIKH MOHAMMAD; WALID MUHAMMAD SALIH MUBARAK BIN ‘ATTASH; RAMZI BINALSHIBH; ALI ABDUL AZIZ ALI; MUSTAFA AHMED ADAM AL HAWSAWI 28 October 2016 1. Timeliness The Prosecution timely files this Response pursuant to the Military Judge’s direction to update the Commission on the status of discovery relating to Mohammed al Kahtani by 28 October 2016. See Unofficial/Unauthenticated Transcript (“Tr.”) at 13859. 2. Relief Sought The Prosecution respectfully requests that this Commission deny the remainder of the discovery requested within AE 434 (MAH). 3. 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)(1)-(2). 4. Facts On 15 April 2008, the Prosecution swore charges against the five Accused and sent the charges to the Convening Authority, asking for a joint capital referral to a military commission for the five Accused in this case and Mr. Mohammad al Kahtani.1 The referral binder, which had 1 For consistency, and to more accurately reflect the spelling of Mr. al Kahtani’s name as it is reflected in the discovery that has been provided, all spellings of Mr. al Kahtani’s names have been changed to “al Kahtani” vice “al Qahtani” despite how it may have been spelled in previous filings and Defense requests. Filed with TJ 28 October 2016 Appellate Exh bit 434A (Gov Sup) Page 1 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE the supporting evidence that accompanied the charges, did not include any information about the treatment of any of the Accused, nor did it include any statements made by Mr. al Kahtani (as the Prosecution believed his case was prosecutable without utilizing any statements he made to United States officials). On 9 May 2008, the Convening Authority referred the case against the five Accused in this case to a military commission empowered to adjudge a sentence of death, and dismissed, without prejudice, the charges against Mr. al Kahtani. On 3-4 June 2008, the Prosecution provided an unclassified version of the referral binder, containing the evidence that supported the charges for the Convening Authority’s consideration, to counsel for the five Accused in United States v. Mohammed, et al. (1). On 26 June 2008, the Prosecution provided the classified version of the referral binder to counsel for the five Accused in United States v. Mohammed, et al. (1). On 13 January 2009, Mrs. Susan Crawford, the former Convening Authority for the Office of Military Commissions, gave an interview to the Washington Post wherein she described various reasons that she did not refer the case against Mr. al Kahtani.2 On 15 August 2011, Trial Counsel sent a letter to Mr. Ruiz, informing him of the nature of the documents that had been provided to Mr. Hawsawi’s previous counsel, which he had requested so he could understand the documents provided to him during turnover. The letter indicated that, despite the case being in the pre-referral stage, and the Accused having no right to pre-referral discovery, the Prosecution was providing him a 287 page index of the previous discovery that explained the 41,344 pages of material that had been provided to previous counsel that was now in his possession. These materials included the 2008 referral binder sent to the Convening Authority asking for the referral of the five Accused in this case as well as Mr. al Kahtani. The Prosecution has no reason to believe that Defense counsel for Messrs. Ali, Bin ‘Attash, and Binalshibh were not also provided the referral binder in 2008 through turnover 2 http://www.washingtonpost.com/wp-dyn/content/article/2009/01/13/AR2009011303372.html Filed with TJ 28 October 2016 Appellate Exh bit 434A (Gov Sup) Page 2 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE from the previous counsel in their cases. Mr. Nevin was counsel of record for Mr. Mohammad during the 2008 proceedings and his Defense team received the referral binder directly from the Prosecution. On 27 October 2015, Defense counsel for Mr. Hawsawi submitted a discovery request to the Prosecution, requesting that it produce the following materials: a. All transcripts, interrogation summaries and notes taken by persons conducting or monitoring interrogations of [Mr. al Kahtani]; b. All audio and video recordings of all interrogations of [Mr. al Kahtani]; c. All statements made or adopted by [Mr. al Kahtani] since his capture which pertain to his alleged role in the 9/11 operation, or his alleged interaction with Mr. al Hawsawi; d. All referral binders and any other documents prepared for and presented to any convening authority regarding [Mr. al Kahtani] (particularly the documents presented to Convening Authority Susan Crawford, who later determined not to refer the case against [Mr. al Kahtani] in 2008); e. All records of interrogation methods used against [Mr. al Kahtani] from the time he came into U.S. custody, control or other custodial oversight; f. All reports, e-mails, investigations, and other communications related to torture or any mistreatment interrogation methods of [Mr. al Kahtani] or related to interrogation methods used on him, from the time he came into U.S. custody, control or other custodial oversight. AE 434 (MAH), Attachment C. In submitting its request, the Defense asserted that “[t]he interrogation summaries for [Mr. Hawsawi] suggest that he was assigned to facilitate the travel of [Mr. al Kahtani], who was alleged to be a 9/11 ‘muscle hijacker,’” and therefore “[Mr. al Kahtani’s] interactions with Mr. Hawsawi and his knowledge of the 9/11 operation are matters that are material to the preparation of the Defense.” Id., Attachment C. On 2 December 2015, the Prosecution timely responded to the Defense request and agreed, in part, to produce the material requested. See id., Attachment D. However, with regard to several of the requested materials, the Prosecution denied the Defense request and stated the following: Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 3 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE The Prosecution does not currently intend to call Mr. al Kahtani as a witness in these proceedings or use any of his statements as evidence. As such, the Defense does not cite to any specific theory of relevance that would reasonably warrant production of the requested information, nor does the Defense request appear material to the preparation of the defense, pursuant to R.M.C. 701. Therefore, the Prosecution declines to produce the requested information at this time. In the unlikely event the Prosecution decides to call Mr. al Kahtani to testify, the Prosecution would revisit [the Defense request]. Id., Attachment D. On 29 June 2016, the Defense filed AE 434 (MAH) requesting that this Commission “order the Government to produce documents concerning Mohammed al Kahtani, who was originally scheduled to be the sixth co-defendant in this case.” Id. at 1. On 13 July 2016, the Prosecution timely responded to the Defense motion and filed AE 434A (GOV). See AE 434A (GOV). In doing so, the Prosecution requested that the Commission deny the requested relief as the Prosecution was “currently in the process of disclosing [certain] material previously requested by the Defense” and the Defense could not “adequately justify, with any specificity, the relevancy of the [other] denied requested materials.” AE 434A (GOV) at 10. On 16 September 2016, the Prosecution filed AE 434B (GOV), an ex parte, in camera, under seal filing, that includes several additional statements made by Mr. al Kahtani for which the Prosecution has sought an adequate substitute under M.C.R.E. 505(f)(2)(A)(ii). On 23 September 2016, based on a specific request for a specific document, the Prosecution provided the Defense the 9 June 2005 “Schmidt-Furlow Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba,”3 which consists of 284 pages. Although it remains classified in its complete form, its executive summary has been declassified. This report, beginning on page 14, goes into great detail on the interrogation methods used on Mr. al Kahtani and contains many, if not all, of his interrogation plans. 3 This can be found in the Defense’s discovery at MEA-DR-20110920-WBA-000368-651 Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 4 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE On 23 September 2016, based on a specific request for a specific document, the Prosecution provided the Defense the 25 May 2004 U.S. Navy Inspector General’s Comprehensive Review of DoD Interrogation Operations (also known as “The Church Report.”4) The “Church Report” is 367 pages and also details Mr. al Kahtani’s interrogation. On 12 October 2016, during oral argument relating to AE 434, the following colloquy occurred between the Military Judge and the Managing Trial Counsel: MJ [COL POHL]: If a statement was taken from [Mr. al Kahtani] where his will was overborne and it led to other statements, other evidence in this case, would that be relevant to the defense? MTC [MR. TRIVETT]: Your Honor, we don't intend to use any of [Mr. Kahtani's] statements. MJ [COL POHL]: No, what I'm saying is -- because this has come up in other trials. TC [MR. TRIVETT]: Okay. MJ [COL POHL]: Okay. If [Mr. al Kahtani] gave a statement under duress that led to evidence that incriminates these accused, would that be relevant to their defense that that evidence should not be used? Not making any ruling on this. You understand ---MTC [MR. TRIVETT]: I'd like the opportunity to brief that more fully, because there's questions of standing. There's questions of timing. There's a bunch of issues that could impact --MJ [COL POHL]: Okay. Go ahead. Take your time on it. I'm just saying, reading from the hearsay rule here, before they talk about the statement itself, the client's will was overborne and the question becomes where does that trail start and where does that trail end? And what I'm saying is if [Mr. al Kahtani] made a statement under duress that led to something else that you may want to use against these accused -- I'm not making any ruling or anything. I'm just saying I could see where that's a potential issue; where your blanket statement of his treatment is irrelevant, I'm not sure I would agree with that. MTC [MR. TRIVETT]: Okay. If we could have the opportunity to brief it, we'll ---- 4 This can be found in the Defense’s discovery at MEA-DR-20110920-WBA-00001-367 Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 5 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE MJ [COL POHL]: Yeah, I understand. Okay. But just give me an update of what you have given them and what you haven't given them, and we'll go from there. Tr. at 13853-13854. On 12 October 2016, during oral argument, the Prosecution agreed to provide the Defense with the Referral Binder once again from the 2008 referral of this case. Following oral argument, the Prosecution also requested the Office of the Convening Authority to conduct a search for any other materials that the Convening Authority may have relied upon in deciding not to refer Mr. al Kahtani’s case. The Convening Authority’s office conducted a reasonable search of their electronic and hard-copy holdings relating to the 2008 referral. The only documents the Convening Authority’s office found, other than the referral binder materials, is contained herein at Attachment B and Attachment C. Attachment B consists of the pre-trial advice provided to Mrs. Crawford, and Attachment C consists of Defense requests to delay the referral decision. As expected, the search did not uncover any additional information regarding Mr. al Kahtani’s treatment. Based on the Prosecution’s review of the “Schmidt-Furlow Report” and the “Church Report,” and in reviewing Mrs. Crawford’s interview with the Washington Post, the Prosecution has reason to believe, based on the similarity of the descriptions, that Mrs. Crawford had reviewed one or both of those reports prior to her decision. As these reports were not provided in the “referral binder” of materials, and were not located in the Office of Convening Authority’s holdings, the Prosecution is not certain if, and if so how, she may have obtained the documents.5 5 The Prosecution is not required to create discovery, and causing a reasonable search to be conducted for information satisfies its due diligence requirements for the discovery. The Prosecution did not interview any members of the Office of the Convening Authority in its search for discoverable documents. Nothing is preventing Defense counsel from conducting its own investigation into the matter. Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 6 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE As of the date of this filing, the Prosecution has provided the defense 172 pages6 of discovery detailing the “statements made or adopted by [Mr. al Kahtani] since his capture which pertain to his alleged role in the 9/11 operation, or his alleged interaction with Mr. Hawsawi,” as was specifically requested by the Defense. AE 434 (MAH), Attachment C at 1. The Prosecution intends to provide the Defense with the 2008 referral binder prior to the next scheduled hearings of this Commission. 5. Law and Argument I. Update to the Commission on what Discovery the Defense Has and Has Not Been Provided The Prosecution hereby provides the Commission with the following update on the status of discovery for the specific Defense requests at issue in AE 434 (MAH), and below briefs the issue raised by the Military Judge regarding derivative evidence, as requested on the record by Managing Trial Counsel on 12 October 2016. In regard to the Defense request for discovery, the Prosecution’s update follows in the indentions. a. All transcripts, interrogation summaries and notes taken by persons conducting or monitoring interrogations of Mr. al Kahtani; The Prosecution has provided the memorialized “statements made or adopted by Mr. al Kahtani since his capture which pertain to his alleged role in the 9/11 operation, or his alleged interaction with Mr. Hawsawi,” which include two transcripts. For the legal reasons set forth below, the Prosecution continues to contend that the Defense has failed to establish that any further summaries and notes taken by persons conducting the interrogations of Mr. al Kahtani are discoverable under R.M.C. 701. 6 The Documents consist of FD 302s, a CITF Form 40, Memorandum for Record (MFRs) (MFRs) and transcripts were Bates Stamped as follows: MEA-STA-00000816 - MEA-STA00000825; MEA-STA-00000826 - MEA-STA-00000826; MEA-STA-00000827 - MEA-STA00000871; MEA-STA-00000878 - MEA-STA-00000993. Along with the statements, the MFRs also indicate what “interrogation approach” was used. Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 7 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE b. All audio and video recordings of all interrogations of Mr. al Kahtani; The Prosecution has identified video recordings, two of which have transcripts of the statements that were made. The Prosecution has provided the transcripts of the statement made during these two recordings. For the legal reasons set forth below, the Prosecution continues to contend that the Defense has failed to establish that the actual video recordings of Mr. al Kahtani are discoverable under R.M.C. 701. If ordered to provide the recordings, the Prosecution will assert the National Security Privilege over certain information contained therein and will be filing an M.C.R.E 505 filing. c. All statements made or adopted by Mr. al Kahtani since his capture which pertain to his alleged role in the 9/11 operation, or his alleged interaction with Mr. Hawsawi; The Prosecution has provided the Defense the memorialized “statements made or adopted by Mr. al Kahtani since his capture which pertain to his alleged role in the 9/11 operation, or his alleged interaction with Mr. Hawsawi.” The Prosecution has also provided 10 statements to the Military Judge that fit this description under M.C.R.E. 505 and have asked for judicial approval to provide a reasonable substitute of those 10 statements. There are no statements fitting this description that have not or will not be provided to the Defense. d. All referral binders and any other documents prepared for and presented to any convening authority regarding Mr. al Kahtani (particularly the documents presented to Convening Authority Susan Crawford, who later determined not to refer the case against Mr. al Kahtani in 2008); The Prosecution provided the referral binders and any other documents prepared for and presented to any convening authority in 2008 and 2011. Counsel for Mr. Hawsawi had the 2008 referral binder materials as early as 2011. The Prosecution has agreed to re-provide the documents to the five Defense teams and will have done so prior to the December 2016 hearing sessions. e. All records of interrogation methods used against Mr. al Kahtani from the time he came into U.S. custody, control, or other custodial oversight; For the legal reasoning set forth below, the Prosecution continues to contend that the Defense has failed to establish that “all records of interrogation methods used against Mr. al Kahtani from the time he came into U.S. custody, control or other custodial oversight” is discoverable under R.M.C. 701. With that said, and without Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 8 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE conceding that either of the reports were required to be disclosed under R.M.C. 701, the “Schmidt-Furlow Report” and the “Church” report were provided to the Defense on 23 September 2016 and contain extensive information documenting the interrogation plan and methods used on Mr. al Kahtani. f. All reports, e-mails, investigations, and other communications related to torture or any mistreatment interrogation methods of Mr. al Kahtani or related to interrogation methods used on him, from the time he came into U.S. custody, control or other custodial oversight. For the legal reasoning set forth below, the Prosecution continues to contend that the Defense has failed to establish that “[a]ll reports, e-mails, investigations, and other communications related to torture or any mistreatment interrogation methods of Mr. al Kahtani or related to interrogation methods used on him, from the time he came into U.S. custody, control or other custodial oversight” is discoverable under R.M.C. 701. The two mostpertinent investigations have been provided. Furthermore, the request for all emails, reports, or communications is incredibly overbroad. II. The Correct Application of the Derivative Evidence Rule in Military Commissions Establishes that Discovery Regarding Mr. al Kahtani’s Treatment is not Material to the Preparation of the Defense On 12 October 2016, during oral argument on AE 434, the Military Judge asked the Managing Trial Counsel, “If a statement was taken from [Mr. al Kahtani] where his will was overborne and it led to other statements, other evidence in this case, would that be relevant to the defense?” Tr. at 13853. Upon receiving the question from the Military Judge, the Managing Trial Counsel requested an opportunity to brief the issue, and the Prosecution does so now, positing that the only legal conclusion is that such information is not material to the Defense in this case. a. Since the Prosecution Has No Intention of Admitting Mr. al Kahtani’s Statements against the Accused into Evidence, the Hearsay Rule Does Not Govern the Exclusion of any Evidence in this Case The Prosecution intends to present various different types of evidence in its case-in-chief. Among the different types of evidence are various business records; public records; testimony from eye witnesses to the events; pre-capture statements of four of the Accused; post-capture Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 9 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE statements of all five Accused; and, physical evidence obtained both overseas and domestically. The evidence seized overseas occurred before, after, or during the capture of the five Accused in this case, and has a temporal and geographic span of November 2001 in Afghanistan to April 2011 in Abbottabad, Pakistan. The Prosecution does not intend to use any hearsay statements from any individual who has previously been in the custody of the United States in its case-inchief or sentencing; to include Mr. al Kahtani. With that said, the discovery of Mr. al Kahtani’s relevant statements was required under R.M.C. 701, and following provision of all said statements, the Defense will be in a position to determine if they wish to speak with him or call him as a Defense witness in the case. However, the Prosecution has no intention of doing so for either its case-in-chief or for sentencing. Military Commission Rule of Evidence 803 governs the admissibility of hearsay. Pursuant to M.C.R.E. 803, Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission only if: (1) the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the proponent's intention to offer the evidence, and the particulars of the evidence (including information on the circumstances under which the evidence was obtained); and (2) the military judge, after taking into account all of the circumstances surrounding the taking of the statement, including the degree to which the statement is corroborated, the indicia of reliability within the statement itself, and whether the will of the declarant was overborne, determines that— (A) the statement is offered as evidence of a material fact; (B) the statement is probative for which it is offered; (C) direct testimony from the witness is not available as a practical matter, taking into consideration the physical location of the witness, the unique circumstances of military and intelligence operations during hostilities, and the adverse impacts on military or intelligence operations that would likely result from the production of the witnesses; and Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 10 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE (D) the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence. M.C.R.E. 803(b); 10 U.S.C. §949a.(b)(3)(D). M.C.R.E 803 is not an exclusionary rule for derivative evidence; it simply sets forth the standard by which the Military Judge must determine the reliability of hearsay that would not otherwise be admissible in general courts-martial. To be sure, if the Prosecution intended to present Mr. al Kahtani’s hearsay statement against the five Accused, the circumstances surrounding the taking of the statement, and whether the will of Mr. al Kahtani was overborne, would be relevant considerations for the Military Judge to make, and the Accused would have standing to make that claim. As such, information about Mr. al Kahtani’s prior treatment while giving the statement would then be material to the preparation of the Defense under R.M.C. 701, and the Prosecution would be required to provide it. However, the information would only become material under M.C.R.E 803 if the Prosecution gave notice of its intent to use that hearsay statement or sought its admission into evidence. The Prosecution makes strategy decisions on what evidence it intends to use, and what concomitant discovery obligations may trigger (or be avoided) by those decisions, and has done so in this instance despite the inculpatory nature of Mr. al Kahtani’s statements to several of the Accused. Since it does not intend to use any hearsay from Mr. al Kahtani, or have him testify, the information is not material to the preparation of the Defense, and the Prosecution should not be required to provide additional discovery on the matter. b. M.C.R.E. 304 Governs the Exclusion of Derivative Evidence and Limits the Exclusion of Information to Only That Which is Derived From the Accused’s Own Statements. While M.R.C.E 803 is not a rule of exclusion, M.C.R.E. 304 is such a rule. M.C.R.E. 304(a)(5) provides additional rights to an accused, not specifically mentioned in the Military Commissions Act, with respect to derivative evidence. Specifically, this rule provides an accused with protections depending on whether the evidence was derived from statements Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 11 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE obtained by torture or cruel, inhuman or degrading treatment, or whether the evidence came from other excludable statements of the Accused. See M.C.R.E. 304(a)(5)(A) and (B). M.C.R.E. 304(a)(5)(A) and (B) lay out a specific framework to follow when analyzing derivative evidence, depending on whether the evidence came from statements obtained by torture or cruel, inhuman or degrading treatment, or whether the evidence came from other excludable statements of the Accused. Specifically, M.C.R.E. 304(a)(5) states: (5) Derivative Evidence (A) Evidence Derived from Statements Obtained by Torture or Cruel, Inhumane or Degrading Treatment. Evidence derived from a statement that would be excluded under section (a)(1) of this rule7 “may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection,” unless the military judge determines by a preponderance of the evidence that – (i) the evidence would have been obtained even if the statement had not been made; or (ii) use of such evidence would otherwise be consistent with the interests of justice. (B) Evidence Derived from Other Excludable Statements of the Accused. Evidence derived from a statement that would be excluded under section (a)(2) of this rule8 may not be received into evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection, unless the military judge determines by a preponderance of the evidence that – (i) the totality of the circumstances renders the evidence reliable and possessing sufficient probative value; and M.C.R.E. 304(a)(1) states that “[n]o statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under the color of law, shall be admissible in a trial by military commission, except against a person accused of torture or such treatment as evidence that the statement was made.” 7 8 M.C.R.E. 304(a)(2) states that “a statement of the accused may be admitted in evidence in a military commission only if the military judge finds – (A) that the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) that – (i) the statement was made incident to lawful conduct during military operations . . . . or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence; or (ii) the statement was voluntarily given.” Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 12 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE (ii) use of such evidence would be consistent with the interests of justice. The clear reading of M.C.R.E. 304 is that “Evidence derived from a statement that would be excluded under [M.C.R.E. 304(a)(1)] may not be received in evidence against an accused who made the statement . . . .” M.C.R.E. 304(a)(5) (emphasis added). Accordingly, the Accused may challenge the admissibility of evidence derived from his improperly induced statements, but the Accused would not have standing to challenge the admissibility of any physical, documentary, or testimonial evidence9 that may be derived from a third party’s statement. The Secretary of Defense was crystal clear that he only intended the derivative evidence rule to apply to evidence derived from statements of the Accused, and not a third party. In the Secretary doing so, M.C.R.E 304(a)(5) is consistent with federal court practice regarding derivative evidence as it applies to violations of a third parties’ Fourth and Fifth Amendment Rights. 1. The Limitation on Standing for M.C.R.E. 304 is Similar to Federal Case Law Interpreting Violations of a Third Party’s Fourth Amendment Rights As an initial matter, foreign searches, such as the several that were performed in this case, are not covered by the Fourth Amendment even in prosecutions in federal district court. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). However, just like with M.C.R.E. 304, even if the Fourth Amendment did apply to the seizures of the physical evidence, the five Accused would not have standing to exclude any evidence derived from any violations of any other individuals’ Fourth Amendment Rights. Alderman v. United States, 394 U.S. 165 (1969) established the principle that “suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by 9 Any hearsay statement of a non-accused derived from torture or cruel, inhuman, or degrading statements would thus not be excluded under M.C.R.E. 304, but of course would be analyzed under the Hearsay provisions in M.C.R.E. 803(B), to include the degree to which the declarant’s will was overborne. Filed with TJ 28 October 2016 Appellate Exh bit 434A (Gov Sup) Page 13 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE the introduction of damaging evidence.” Id. at 171-72. The Court also stated: “Fourth Amendment rights are personal rights, which, like some other constitutional rights, may not be vicariously asserted. Id. at 174; see also United States v. Padilla, 508 U.S. 77, 81 (1993) (“[i]t has long been the rule that a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure.”); Rakas v. Illinois, 439 U.S. 128, 134 (1978) (holding that the defendant, who was a passenger in a car that was illegally searched had no standing to challenge the admissibility of evidence seized.). 2. The Limitation on Standing in M.C.R.E. 304 is Similar to Federal Case Law Interpreting the Suppression of Evidence Derived from Statements Given in Violation of a Third Party’s Fifth Amendment Rights.10 Federal civilian courts also consistently hold that evidence derived from an unlawfully obtained third-party statement should also not be suppressed as fruit of the poisonous tree. See Jacobs v. Warden, Md. Penitentiary, 367 F.2d 321, 323 (4th Cir. 1966) (holding the illegal arrest of a coconspirator and the subsequent incriminating information he provided about the defendant should not extend “to cloak strangers . . . with absolute or conditional immunities”); Gissendanner v. Wainwright, 482 F.2d 1293, 1296 (5th Cir. 1973) (concluding that petitioner’s identification in a lineup was not fruit of the poisonous tree from the illegally taken confession of a co-conspirator who implicated them, and finding it persuasive that the co-conspirators’ illegal confession was never introduced against the accused). In Gissendanner v. Wainwright, 482 F.2d 1293 (5th Cir. 1973), the Fifth Circuit dealt with a coerced and ultimately suppressed confession not of the defendant, but of a co-defendant. The Fifth Circuit addressed the defendants’ claim that their identification in a line-up was tainted because their identities were obtained through the coerced confession. Id. at 1294. The court 10 Standing to suppress actual third-party statements from being presented against a defendant is a different matter not implicated in the instant motion and, as such, is not addressed here. Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 14 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE ultimately held that the rule of Wong Sun v. United States, 371 U.S. 471 (1963), which excludes evidence that is the fruit of an illegal search or seizure, was not applicable for two reasons: First, the illegally obtained confession of the co-defendant was not introduced into evidence; and second, the defendants lacked standing to challenge the co-defendant’s confession. Id. at 1296. In United States v. Warren, No. 03 C 3574, (00 CR 397), 2003 U.S. Dist. LEXIS 26868 (N.D. Ill. Sept. 19, 2003), the defendant, in the context of an ineffective assistance of counsel (“IAC”) claim, argued that his girlfriend was involuntarily coerced into assisting the FBI and therefore his confession should have been suppressed as a fruit of that unlawful conduct. Id. at *7. The court in rejecting the IAC claim, stated, “[t]hus, assuming that Steele’s [the girlfriend of defendant] statements to the FBI were involuntary, her statements to the FBI likely could not themselves have been used as evidence at defendant’s trial, but they do not provide a basis for extending suppression to any fruits of her confession. Id. at *9 (citing United States v. Richardson, 1 F. Supp. 2d 495, 496 (D.V.I. 1998)). With respect to the Fifth Amendment, many of the “fruit of the poisonous tree” cases deal with evidence proximately derived from a Miranda violation, either with respect to a defendant or a third party. See generally United States v. Patane, 542 U.S. 630, 633 (2004). For instance, in United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir. 1988), the defendant contended that cocaine seized from his truck was inadmissible as “fruit of the poisonous tree” because it was “found only as a result of interrogation conducted without the benefit of Miranda warnings.” Sangineto-Miranda, 859 F.2d at 1515. The Sixth Circuit framed the issue as follows— “whether nontestimonial physical evidence proximately derived from a Miranda violation is inadmissible as ‘fruit of the poisonous tree.’” Id. at 1516. The Sangenito Court went on to state: Whereas the goal of the fourth amendment’s exclusionary rule is to deter unlawful police conduct, [Oregon v.] Elstad, 470 U.S. at 306, the goal of the Fifth Amendment’s exclusionary rule is to assure trustworthy evidence. In the vast majority of cases, as in our case, there is plainly no reason to believe that nontestimonial physical evidence derived from uncounseled statements is untrustworthy. Sangineto-Miranda, 859 F.2d at 1518 (citations omitted). Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 15 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE In United States v. Villalba-Alvarado, 345 F.3d 1007 (8th Cir. 2003), the defendant, without a Miranda warning, voluntarily confessed to officers in his home the locations of a hidden panel in a built-in dresser that concealed approximately one-half pound of cocaine and a scale, and a coat hanging in a closet with $3,360 in its pocket. Id. at 1008. In finding the derivative physical evidence admissible, the Eighth Circuit, joining the Third and Fourth Circuits, held that the exclusionary rule as applied under the Fifth Amendment does not require the suppression of physical evidence derived from a voluntary, non-Mirandized statement. Id. at 1013. In coming to this conclusion, the Eighth Circuit focused on the difference between physical derivative evidence and derivative voluntary statements. Id. at 1016. The court stated: Physical evidence speaks for itself. The reliability of derivative physical evidence is not called into doubt by the fact of an underlying Miranda violation. Accordingly, the recognized purposes of the Fifth Amendment exclusionary rule, as applied under Miranda, suggest that the case for the admission of derivative physical evidence is stronger even than the case for the admission of derivative, voluntary statements as sanctioned by the Court Elstad and [Michigan v.] Tucker [417 U.S. 433 (1974)]. Id. at 1016. 3. Practical Effect of Interpreting M.C.R.E 803 or M.C.R.E 304 to Apply to the Treatment of Third Parties The issue of standing for derivative evidence being limited to only the Accused who gave the statement is vitally important in this case, and many other cases, that will be tried before Military Commissions, due to the nature of the war against al Qaeda and affiliated terrorist organizations. In this instance, and without conceding that the information is discoverable under R.M.C. 701, the Prosecution provided the “Schmidt-Furlow” and “Church Reports,” which detail a significant amount of Mr. al Kahtani’s treatment while in DoD custody. However, it is important to recognize that this issue is not limited to Mr. al Kahtani. If the hearsay rule identified by the Military Judge during oral argument were to act as a derivative evidence rule even in instances where the Prosecution had no intention of using the hearsay statement in court, or if M.C.R.E 304 triggered an analysis of every statement made by any detainee captured during the war against al Qaeda at a point-in-time prior to a capture and/or the Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 16 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE discovery of physical evidence, the cases could never go to trial. Not only would it often be impossible to prove whether evidence was actually “derivative” of such a statement due to the multiple streams of intelligence that may have led to captures and/or evidence, but the classified information underlying the other intelligence that the United States may have had, as well as the interrogation and statements of every detainee who may have provided some useful information that led to a capture and/or evidence, would prove so voluminous as to be an impediment to any trial moving forward at all. The Secretary of Defense, in promulgating a rule that is consistent with federal case law on the subject, properly limited the exclusion of non-hearsay evidence to that derived from the statements of the Accused; not third parties. It could not have been the intent of Congress, and the Secretary of Defense, more than 8 years after the attacks of September 11, 2001, and keenly aware of the nature of the war against al Qaeda and the intelligence required to wage war, to establish an exclusionary rule for documentary, physical, and testimonial evidence that provided more protection than defendants enjoy when tried in federal district court. As the derivative evidence rule in M.C.R.E. 304 is expressly limited to those statements made by an Accused, Mr. al Kahtani’s treatment by the Department of Defense would not be a basis to suppress any of the evidence that the Prosecution intends to use against the Accused in this case. As the Defense has not articulated any other legitimate basis for why such information would be discoverable, the Defense motion for additional information relating to Mr. al Kahtani, other than the extensive information already provided, should be denied. 6. Conclusion Despite receiving more discovery than is required by R.M.C. 701 as it pertains to Mr. al Kahtani, the Defense is not entitled to any information other than “statements made or adopted by [Mr. al Kahtani] since his capture which pertain to his alleged role in the 9/11 operation, or his alleged interaction with Mr. Hawsawi.” As the derivative evidence rule in M.C.R.E. 304 is expressly limited to those statements made by an Accused, Mr. al Kahtani’s treatment by the Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 17 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE Department of Defense would not be a basis to suppress any of the evidence that the Prosecution intends to use against the Accused in this case. As such, it is not discoverable under R.M.C. 701. 7. Oral Argument The Prosecution does not request oral argument. 8. Witnesses and Evidence The Prosecution will not rely on any witnesses or additional evidence in support of this motion. 9. Additional Information The Prosecution has no additional information. 10. Attachments A. Certificate of Service, dated 28 October 2016 B. Legal Advisor’s Pretrial Advice provided to Mrs. Crawford C. Defense Referral Delay Requests submitted to Mrs. Crawford Respectfully submitted, ___________//s//______________________ Clay Trivett Managing Trial Counsel Mark Martins Chief Prosecutor Military Commissions Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 18 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE ATTACHMENT A  Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 19 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE CERTIFICATE OF SERVICE I certify that on the 28th day of October 2016, I filed AE 434A (GOV Sup), Government Updated Response to Defense Motion to Compel Production of Discovery Concerning Mohammed al Kahtani, with the Office of Military Commissions Trial Judiciary and I served a copy on counsel of record. ___________//s//_____________ Clay Trivett Managing Trial Counsel Office of the Chief Prosecutor Office of Military Commissions Filed with TJ 28 October 2016 Appellate Exh bit 434A (Gov Sup) Page 20 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE   ATTACHMENT B  Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 21 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE UNITED STATES OF AMERICA v. ) ) ) ) ) KHALID SHEIKH MOHAMMED · ) WALID MUHAMMAD SALIH MUBARAK ) ) BIN 'ATTASH RAMZI BINALSHIBH ) A,LI ABDUL AZIZ ALI ) MUSTAFA AHMED ADAM AL HA WSA WI ) MOHAMED AL KAHTANI ) LEGAL ADVISOR'S PRETRIAL ADVICE .APR 1 6 2008 Pursuant to the Military Commissions Act of2006 (M.C.A.) and the Manual for Military Commissions of 2007 (M.M.C.), the Chief Prosecutor prepared and forwarded the attached · charges against Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ' Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi, and Mohamed al Kahtani sworn on February 11 , 2008, in accordance with Rule for Military Commissions (R.M.C.) 307. The Chief Prosecutor prepared and forwarded revised charges against the same · individuals that were sworn on April 15, 2008. The prosecution recommends that the cases be tried jointly by a military commission authorized to impose the death penalty. R.M.C. 401 authorizes only the Secretary of Defense or a convening authority designated by him to dispose of charges. As a convening authority designated by the Secretary of Defense for the purpose of convening military commissions,.you have the authority to dismiss the charges or refer them to a trial by military commission. R.M.C. 406 requires that I advise you on certain matters before you may refer any charge or specification for trial by military commission. After examining the charge sheet dated April 15, 2008, the allied papers, and the supporting evidence, I made the following eonclusions. a. With respect to whether each specification alleges an offense under the MCA. The Specification of Charge I, Conspiracy, alleges an offense under the M.C.A., 10 U.S.C. § 950v(b)(28). The Specification of Charge IT, Attacking Civilians, alleges an offense under the M.C.A., IO U.S.C. § 950v(b)(2). The Specification of Charge III, Attacking Civilian Objects, alleges an offense under the . . M.C.A., IO U.S.C. § 950v(b)(3). Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 22 of '54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE The Specification of Charge IV, Intentional Infliction of Serious Bodily Injury, alleges an offense under the M.C.A., 10 U.S.C. § 950v(b)(13). The Specification of Charge V, Murder in Violation of the Law of War, alleges an offense under the M .C.A., 10 U.S.C. § 950v(b)(15). The Specification of Charge VI, Destruction of Property in Violation of the Law of War, _alleges an offense Wlder the M.C.A., 10 U.S.C. § 950v(b)(16). The Specification of Charge VII, Hijacking an Aircraft, alleges an offense under the M.C.A., 10 U.S.C. § 950v(b)(23). The Specification of Charge VIII, Terrorism, alleges an offense under the M.C.A., 10 . U.S.C. § 950v(b)(24). The Specifications of Charge IX, Providing Material Support to Terrorism, allege offenses under the M.C.A., 10 U.S.C. § 950v(b)(25). b. With respect to whether the allegation of each offense is warranted by the evidence. The trial counsel prepared and forwarded referral notebooks and their recommendations as to disposition of the charges. I considered the informa:tion contained in the referral notebooks and make the following conclusions. The allegations in the Specification of Charge I, Conspiracy, 10 U.S.C. § 950v(b)(28), are warranted by the evidence. The allegations in the Specification of Charge II, Attacking Civilians, 10 U.S.C. § 950v(b)(2), are warranted by the evidence. The allegations in the Specification of Charge III, Attacking Civilian Objects, I 0 U.S.C. § 950v(b)(3), are warranted by the evidence. The allegations in the Specification of Charge IV, Intentional Infliction of Serious Bodily Injury, 10 U.S.C. § 950v(b)(13), are warranted by the evidence. The allegations in the Specification of Charge V, Murder in Violation of the Law of War, 10 U.S.C. § 950v(b)(l5), are warranted by the evidence. The allegations in the Specification of Charge VI, Destruction of Property in Violation of the Law of War, 10 U.S .C. § 950v(b)(16), are warranted by the evidence. The allegations in the Specification of Charge VII, Hij acking an Aircraft, 10 U.S.C. § 950v(b)(23), are warranted by the evidence. 2 Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 23of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE The allegations in the Specification of Charge VIII, Terrorism, 10 U.S.C. § 950v(b)(24), are warranted by the evidence. The allegations in the Specifications of Charge IX, Providing Material Support to Terrorism, 10 U.S.C. § 950v(b)(25), are warranted by the evidence. c. With respect to whether a military commission would have jurisdiction over the accused and the offense. Personal Jurisdiction Under the M.C.A., 10 U.S.C. § 948c, military commissions have jurisdiction over alien unlawful enemy combatants. Section 948a(l)(i) of the Act defines "unlawful enemy combatant" as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)." By executive order dated February 14, 2007, the President established military commissions to try alien unlawful enemy combatants for offenses triable by military coinmission as provided in chapter 47 A of title 10. Military commissions may try any offense under the M.C.A. or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001. 10 U.S.C. § 948d(a); R.M.C. 203. Based on the available evidence, the accused are not citizens of the United States, and were not members of a regular armed force, militia, volunteer corps, or organized resistance movement. Based upon the evidence in the referral package, I conclude the accused were alien unlawful enemy combatants when the charged offenses were committed. Therefore, a military cornrpission has in personam jurisdiction over the accused. Subject Matter Jurisdiction The charges include Conspiracy to commit offenses triable by military commission, Attacking Civilians, Attacking Civilian Objects, Intentionally Causing Serious Bodily Injury, Murder in Violation of the Law of War, Destruction of Property in Violation of the Law of War, Hijacking an.Aircraft, Terrorism, and Providing Material Support to Terrorism. Each is an offense under the M.C.A. The offenses are violations of the law of war as well, because the accused were not lawful enemy combatants, the attacks violated the principles of the law of war, and the conduct occurred in the context of and in connection with armed conflict. Therefore, it is my opinion that a military commission has subject matter jurisdiction over the offenses committed by the accused. d. With respect to whether trial of the charges would be harmful to national security. I consulted with the Office of the Director of National Intelligence and appropriate intelligence agencies and conclude trial of the charges would not be harmful to national security. 3 Filed with TJ Appellate Exhibit 434A (Gov Sup) Page 24of 54 28 October 2016 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE e. Additional Considerations. ( 1) Admissibility of Confessions. The accused may challenge the admissibility of their confessions on the grounds they were involuntary and unreliable. I note several detainees have alleged they were tortured or abused, such as Khalid Sheikh Mohammed in his statement offered in the Combatant Status Review Tribunal hearing for Ali Abdul Aziz Ali, and the statements by Mohamed al Kahtani at his Annual Review Board hearing in 2006. Under the Military Commissions Act, 10 U.S.C. § 948r, statements obtained by use of torture, and statements obtained through cruel, inhuman, or degrading treatment in violation of the Detainee Treatment Act of 2005, are not admissible. The referral binders include ttie confessions of the first five named accused, which were provided to government investigators in January 2007, and some statements made at Combatant Status Review Tribunal and Annual Review Board hearings. Based upon information in the referral binders, I considered the circumstances surrounding the taking of these statements, including: the advisements of each accused' s rights, especially the advisement of the ability to remain silent and that the accused would not be returned to the custody of previous investigators; each accused's acknowledgement of those rights; the accused's understanding of the purposes and uses of their statements and their willingness to participate; the investigators' respect for the accused's requests for recesses for prayers, refreshments or for adjournments for the day; the investigators' respect for the accused's election not to discuss certain matters; the change in the location of detention and questioning; the change in the identity of the investigators; and the length of time between the alleged mistreatment and the confessions in question. I also considered the extent to which each confession is consistent with the other accused's statements and confe.ssions, or corroborated by independent, physical evidence. I conclude the statements of the first fi ve named accused obtained in January 2007 and included in the referral binders are probative and reliable, and are admissible at trial before a military commission. (2) Joinder. You may, in your discretion, determine whether the six named accused be tried jointly or separately. R.M.C. 60l(e)(3) provides that two or more accused may be referred for joint trial if they aie alleged " to have participated in the same act or transaction on in the same series of acts or transactions constituting an offense or offenses." The Discussion following the rule explains that a joint offense is committed "by two or more persons acting together with a common intent," and indicates offenders "are properly joined only if there is a common unlawful design or purpose." The available evidence indicates the six named accused shared the same.unlawful purpose and participated in the same series of acts that constituted the charged offenses. I recommend the six named accused be tried jointly. (3) Referral'Process. In his letter dated 31 March 2008, the Chief Defense Counsel suggested that you adopt a formal process for reviewing capital cases before referral, similar to the Capital Review Committee employed by the Department of Justice. Captain Prince, counsel for Khalid Sheikh Mohammed, and Commander LacheUer, counsel for Ramzi Bin a l Shibh, made similar requests and sought extensive discovery before referral. I recommend that you not adopt these suggestions and that you follow the processes for referral and discovery set out in the Manual for Military Commissions. 4 Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page25of54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE (4) Capital Referral. Under Part IV of the Manual for Military Commissions, death is an authorized punishment for the following charged offenses where death results: Conspiracy, Attacking Civilians, Murder in Violation of the Law of War, Hijacking an Aircraft, and Terrorism. The prosecution recommends that the charges be referred to a military commission empowered to adjudge the death penalty. By letter dated 31 March 2008, the Chief Defense Counsel, Office of Military Commissions, asks that you consider several factors that he suggests weigh against a capital referral, including the duration and conditions of the detention already served and the perception that military commissions would not provide due process of law. The prosecution intends to rely on the following aggravating factors from R.M.C. 1004(c) to pursue a death sentence: That the accused was convicted of an offense. referred as capital, that is a violation of the law of war; That the offense resulted in the death of one or more than one persons; That the offense was committed in such a way or under such circumstances that the life of one or more than one persons other than the victim was unlawfully and substantially endangered; That the crime was preceded by the intentional infliction of substantial physical harm or prolonged, substantial mental or physical pain and suffering to the victim or to another person; That the accused has been found guilty in the same case of another capital crime; That a victim was under the age of 15; That a victim was a protected person or that the offense was committed in such a way or under circumstances that the life of one or more protected persons other than the victim was unlawfully and substantially endangered; That the offense was committed through the employment of a weapon that causes U1U1ecessary suffering in violation of the law of war; and That the offense was committed with the intent to intimidate or terrorize the civilian population, except that this offense shall not apply to the offense of Terrorism. The available evidence supports the application of each of these aggravating factors. Considering the magnitude of the offenses, the massive loss of human life, and the enormous impact on the people of the United States and numerous other countries, I recommend these cases be referred as capital against the first five named accused: Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawl. Considering the totality of the circumstances relating to Mohamed al Kahtani, I recommend that the charges against him not be referred as capital. f. Recommendation of the action to be taken by the convening authority. For the reasons stated above, I recommend that: (1) For the charge sheet dated April IS, 2008, you refer the charges and specifications to trial by military commission convened by Military Commission Convening Order (M.C.C.0.) 08-01 dated JO April 2008; 5 Filed with TJ Appellate Exhibit 434A (Gov Sup) Page 26of 54 28 October 2016 UNCLASSIFlED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE ~~~~~~~~~~~~~~~~- · (2) For the charge sheet dated April 15, 2008, you refer the case as capital for Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi; and non-capital for Mohamed al Kahtani; and (3) For the charge sheet dated February 11, 2008, you dismiss the charges and specifications. · 64L..~Jl.L Thomas W. Hartmann Brigadier General, U .S. Air Force Legal Advisor to the Convening Authority for Military Commissions 6 Filed with TJ . 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page27 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE DIRECTION OF THE CONVENING AUTHORITY In the Military Commissions case of United States v. Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi, and Mohamed al Kahtani, I direct: - The charges and specifications dated February 11, 2008, are dismissed. - The charges and specifications against Mohamed al Kahtani dated April 15, 2008, are dismissed without prejudice. - The charges and specifications against Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi dated April 15, 2008, are amended by deleting references to Mohamed al Kahtani as a co-accused, while including him as an uncharged co-conspirator. The charges and specifications, as amended, are referred to trial by the military commission convened by Military Commission Convening Order 08-0 I, dated 10 April 2008. The charges and specifications against Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi will be tried jointly. The charges are referred capital. - A copy of my memorandum dated May 9, 2008, will be provided to detailed defense counsel. s/r/og Filed with TJ 28 October 2016 Susan J. Crawford Convening Authority For Military Com.missions Appellate Exhibit 434A (Gov Sup) Page28of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE MCCO 07-07, dated 19 December 2007, was the last Convening Order of th¢ Office of the Military Commissions published in 2007) DEPARTMENT OF DEFENSE OFFICE OF MILITARY COMMISSIONS OFFICE OF THE CONVENING AUTHORITY 1600DEFENSE PENTAGON WASHINGTON, DC 20301-1600 MILITARYCOMMISSION CONVENING ORDER NUMBER 08-0 I .. 10 April 2008 Pursuant to the authority vested in the Secretary of Defense in accordance with the Military Act of 2006, I 0 U.S.C. § 948h, and my appointment as Convening Authority for Military Commissions on February 6, 2007, a military commission is her~by 'convened. Jt may proceed at Guantanamo Bay, Cuba, unless otherwise directed, to try such persons as may be properly brought before it. The military commission is convened with the following members: · .· Commission~ MEMBERS RANK CAPT CAPT CAPT COL COL COL COL COL COL COL COL COL COL Filed with TJ 28 October 2016 SVC ASSIGNMENT . NAVY STAFF, 2000 Navy Pentagon · Washington, D.C. COMNAVAIRPAC, San Diego, CA USN NATIONAL DEFENSE UNIVERSITY USN Fort Lesley J. McNair, Washington, D.C. HQ' AF RESERVE COMMAND (DL USAF . A300) A4T (UHHZ) ROBINS AFB (13) GEORGIA ' USAF AF-SPEC-OPNS COMMAND (OLCVOO} JSE (FTEV) HURLBURT FIELD, Florida USMCR HENDERSON HALL, FORT MYER VA AR CIC, Fort Monroe, VA USA 374. AIRLIFT WING/CC (Z.NRE) USAF Yokota, Japan 110 HQ COMMARFORPAC CAMP USAF Smith, HI DEPT ARMY MIL REV BO . USA PENTAGON VA USN .COMSECONDFLT, FPO AE ARMY SPEC OP COMMAND USA FORT BRAGG, NC 305 OPER.f\TIONS GROUP /OG/CC (PTFL) USAF MCGUIRE AFB (34) NJ USN Appellate Exhibit 434A (Gov Sup) Page29of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE Continuing MCCO 08-0 I, dated. I 0 April 2008 COL COL CDR LTC CDR LTC LTC LTC LTC MAJ cws USA USA HQUSASAC, ALEXANDRIA VA 2D NATIONAL POLICE TRANSITION TEAM, BAGHDAD, IRAQ ·COMMANDING OFFICER USS USN JOHN F. KENNEDY CV67 FPO AA 35 MAINTENANCE.GROUP/35MXG/CD USAF (QKKA) MISA WA ASS (JA) JAPAN USN . NAVAL TRArNfNG CENTER GREAT LAKES IL USMC OAS-TIO 5107 AVIATION DEPT HOMC ARLINGTON VA USMC · HENDERSON HALL, FORT MYER VA AF ANG 19 SPACE OPNS SQUADRON/CC (GLEN) SCHRIEVER AFB Cb USA PENN STATE UNIVERSITY STATE COLLEGE PA USAF LAUNCH SYSTEMS GROUP/RP (MHMV) KIRTLAND AFB NEW MEXICO USA W HQ CENTRAL COMM USA MACDILL AFB FL ~J.~IA~ DISTRIBUTION: Individual (1) Record of Trial (I) Reference Set (1) Filed with TJ 28 October 2016 z;- .- Susan J. Crawford .. · Convening Authority for Military Commissions. 2 · Appellate Exhibit 434A (Gov Sup) · Page 30 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE   ATTACHMENT C  Filed with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 31 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE OFFICE OF THE SECRETARY OF DEFENSE OFFICE OF MILITARY COMMISSIONS 1600 DEFENSE PENTAGON · WASHINGTON, DC 20301-1600 CONVENING 4UTllORITY. May9, 2008 MEMORANDUM FOR: LCDR Brian Mizer, USAN, Defense Counsel Office of Military Commissi.o ns SUBJECT: Referral Process Requests-Your Client: Ali Abdul Aziz Ali I reviewed your letter dated May 7, 2008. After careful consideration, I have decided not to adopt your suggestions. However, I will consider your c9inments before making a decision on the referral of charges in this case. dll~il~ • Susan J. Crawford Convening Authority for Military Commissions • Flied with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 32 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE DEPARTMENT OF -OEFENSE OFFICE OF THE CHIEF DEFENSI:: COUNSEL . 1600 DEFENSE PENTAGON WASHINGTON , DC 20301-1800 7 MAY2008 MEMORANDUM FOR THE HONORABLE SUSAN J. CRAWFORD, CONVENING AUTHORITY, OFFICE OF MILITARY COMMISSIONS SUBJECT: Request Delay in Referral of United States v: 'Ali Abdul Aziz Ali to Allow for Consideration of Mitigation Evidence On behalf of Mr. Ali, we respectfully requ~t that you delay the referral decision in his case so that he may present evidence in mitigation classified as top secret. Further, a delay will provide the defense the opportunity to request limited pre-referral discovery of additional · mitigation evidence relevant to whether the death penalty is warranted in his case. Finally, the additional time will allow the defense to begin its mitigation investigation which is likely to uncover evidence relevant to mitigation. Delay in Referral Will Allow the Defense to Present Evidence Classified as TS/SCI SAP in Supoort of a Non-Capital Referral • "[W)e belleve that In capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and reoord of the Individual offender and the circumstances of the particular offense as a constftutlonaf/y Indispensable part of the process of Inflicting the penalty of death. This conclusion rests squarely on the predicate that the penalty of death Is qualitatively different from a sentence of Imprisonment, however long. Death, In its finality, differs more from life imprisonment than. a 100-year prison term differs from one of only a year or two. Because of that qualltative · difference, there Is a corresponding difference In .the need for re/lab//lty in the determfnatlon that death ts the appropriate punishment In a specific case. Woodson v. North caro!loa, 428 U.S. 280, 304-305 (1976) N This qualitative difference--the irrevocability of the death penalty--should compel you to proceed cautiously to ensure that the referral decision is reliable,Je., a reasoned response reflecting both the aggravating and mitigating factors unique to Mr. Ali's case. Last week, lead counsel, LCDR Mizer met with Mr. Ali over the course of several days. During these meetings, Mr. Ali related powerful infonnation which LCDR Mizer is considering presenting to you in mitigation. The government has classified infonnation imparted to counsel.from Mr. Ali as TS/SCI SAP. • Any capital case, but particularly a capital case of this complexity, requires a defense team to provide competent representation. See Guideline 4.1, ABA Guidelines on the Appointment of Counsel in Death Penalty Cases (rev. 2003); To this end, the Chief Defense Counsel detailed additional military counsel to represent Mr. Ali, and LCDR Mizer is seeking the assistance of civilian counsel with significant experience in complex criminal litigation. Aside from LCDR Mizer, no counsel yet has the required security Flied with TJ 28 October 2016 0 Appellate Exhibit 434A (Gov Sup) Page 33 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE • clearances. Consequently, there can be no discussion within the defense team regarding whether to reveal attorney-client c:Onfidt;nces in our argwnent·for a non-capital referral. Furthe~, assuming that the defense was prepared to reveal this infonnation, the Office ·of .the Chief Defense Counsel does not yet posses the-logistical capability to create a . memorandum which incorporates TS/SCI SAP information and legal argument. In light of the nature of the evidence involved, the defense respectfully requests a delay in th~ referral until the government is able to faeilitate cou.nsel's.ability to confer with one a,oother and communicate significant mitigation evidence to you. In the alternative, the defense requests a brief delay in referral until the conclusion of the Hamdan trial scheduled to begin the week o(May 261b. This will allow LCDR Mizer (counsel for Mr. Hamdan) the opportunity to discus$ the matter further with Mr. Ali, obtain his consent to disclose this infonnation, and determine how.such TS/SCI SAP information can be communicated to you for your consideration. The Defense Requests aDelay in Referral In Order to Request the Government Provide Pre-Referral Discovery Relating to Mitigation Evidence • •Given that the Imposition of death by public authority Is so profoundly different from all other penalties~ we cannot avoid the conclusion that an lndlvlduallzed decision Is essential In capital cases. The need for treating each defendant In a capital case with that degree of respect due the uniqueness of the ind/V/dual ls far more important than in noncapltal cases." Lockett y. Ohio, 438 U.S. 586, 605 (1978) . This need to ensure individualized consideration to reduce the risk of arbitrary death sentences has long shaped the creation of substantive and pr0cedural protections unique to · capital trials. ~ Funnan v. Georgia. 408 U.S. 238 (1972) (striking down death penalty under the Eighth Amendment based on unfettered discretion pro:vided sentencer); Godfrey v. Georgi~ 446 U.S. 420 (1980) Ow-ors must be provided with clear, objective standards in determining whether death is appropriate); Simmons v. South Carolina, 512 U.S. 154 "(1994) (explanation of parole ineligibility.required); Mills v. Maryland, 486 U.S. 367 (1988) (Striking down requirement that jurors be tmanimous .regarding mitigation); and Pemy'v. Lypaugh, 492 U.S. 3.02 (1989) (sentencer must be able to consider and give effect to mitigation evidence). In both the military and federal systems, there are procedural protections which apply during the decision-making process regarding whether to impose the death penalty. In the federal system, defense counsel are provided the opportunity to present evidence and argument in mitigation prior to the Attorney General's final decision. See, U.S. Attorneys' Manual 9-10.120. Similarly,.the Article 32 Investigation provides military accused the opportunity to call witness and present evidence in mitigation. The report of the Article 32 Investigation is available for consideration by the Convening Authority at referral. • There is nothing in the Rules for Military Commissions which precludes you from allowing the defense to present evidence in mitigation. To the contrary, the Rules contemplate the consideration of mitigation evidence. See, Discussion to R.M.C. 406 (recommending that 2 Flied with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 34 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSI FIED//FOR PUBLIC RELEASE • th~ .Pre~al advice include a diseussion of"significant aggravating, extenuating and mttigatin~ ~tors'). Ev~dence .in mitigation should not be limited to that identified by the legal ~vJSOr in ~e pretnal ad~1ce. The legal advisor is not in a position to advocate for Mr. Ali and can not collect evidence from Mr. Ali for presentation. In fact, R.M.C. 601 allows you to consider "information from any source" in making the referral decision. Consequently, the defense requests the opportunity to seek mitigation evidence from the ~oven:ime_nt through discovery1 and will continue to pursue its own independent mitigation mvest1gation. . Delay Pennits the Defense to Begin its Mitigation Investi~tion in Order to Present the Convening Authority with Mitigation Evidence that Compels a Non-Capital Referral "[V]lrtua/ly no limits are placed on the relevant mitigating evidence a capital defendant may Introduce concer:nlng his own circumstances."' Eddings y. Oklilhoma, 455 U.S. 104, 114 (1982). . "Counsel at every stage have an obffgatron to conduct thorough and Independent Investigations relatfng to the issues of both guilt and penalty."' ABA Gutdellne 10. 7 for the Appointment of Counsel In Death Penalty Cases. • Counsel, only recently detaiied to rvtr. Ali's case, have begun a mitigation investigation. However, one counsel acting alone does not have the ability to engage in the type ofexhaustive, complex inv~igation required to uncover ~d develop compelling evidence mitigating against the death penalty. Such an investiga,tion is typically undertaken by a defense team of individu.ii.ls possessing different skills (such as the ability to screen for the presence of mental or · psychological disorders or impairments). See ABA Guideline 4.1. The defense is dilig~tly seeking to assemble such a team. In the interim, the d.efense is pursuing the limited information l;hat is not currently within the possession and control of the government. The defense seeks a · delay in the referral decision, so that, ·at the least, it may develop and present the mitigation evidence already provided to LCDR Mizer.by Mr. Ali. Defense Requests the Oooortunitv to Meet With Convening Authority to Present Relevant Mitigation Evidence "The right to representation by counsel Is not a formality. It Is not a grudging gesture to a ritualistic requirement. It is of the essence .ofjustice. Appointment of counsel without affording · an opportunity for hearing on a 'crltfcal/y Important' decision Is tantamount to denial Of counsel." Kent y. U.S., 383 U.S. 541, 561 (1966) . The Supreme Court's decision in Kent involved the provision of counsel at hearings to detennine whether juveniles could be charged as adults. Although the factual contexts are different, the principle which affirms the importance of counsel is equally applicable to the Military · Coaunissions. One of the fundamental protections extended to detainees charged under the Military Commissions Act is the appointment of detailed military defense counsel. As Mr. Ali's couns~I, we request the opportunity to meet with you prior to the referral decision to advocate on his behalf. · · • 1 Contemporaneous with this memorandlD'!l, the defense submitted a limited pre-referral discovery request to the prosecution seeking the disclosure of mitigation evidence, Filed with TJ 3 Appellate Exhibit 434A (Gov Sup) 28 October 2016 Page 35 of 54 UNCLASSIFIED//FOR PUBLIC RE LEASE UNCLASSIFIED//FOR PUBLIC R ELEAS E ' . ·• , The referral decision is critically important, particularly in a high publicized ·case involving defendants who are universally reviled. Realistically, the decision represents Mr. Ali's best . chance of avoiding execution. As the Convening Authority, you have the discretion to allow the · . defense the opportunity to meet with you to present relevant mitigation evidence. The extraordinary circumstances involved in the decision to refer Mr. Ali's case capital support such additio.nal pr0cedural protections. Further, at this point time, a personal meeting may be the inost realistic way for the defense to present evidence currently classified as TS/Sq SAP. On behalf of Mr. Ali, I appreciate your consideration of our request that you delay the referral decision in his case. The provision of such a delay helps to guarantee that the weighty decision you must make will represent an informed, individualized determination which takes into account both the aggravating and mitigating factors relevant to Mr. Ali. Respectfully submitted, . • • Flied with TJ 28 October 2016 . AMY S. FITZGIBBONS MAJ, JA, USAR Counsel for Ali Ahdu.J A.zir. Ali 4 Appellate Exhibit 434A (Gov Sup) Page 36 of 54 UNCLASSIFIED//FOR PUBLIC R ELEAS E UNCLASSIFIED//FOR PUBLIC RELEAS E ·OFFICE OF THE SECRETARY OF DEFENSE OFFICE OF MILITARY COMMISSIONS 16()0 DEFENSE PENTAGON WASHINGTON, DC 20301 -1600 OONVfNINO AUTHOfll TY May9, 2008 MEMORANDUM FOR: LCDR Brian Mi'zer, USAN, Defense Counsel Office of Military Commissions SUBJECT: Referral Process Requests-Your Client: Ali Abdul Aziz Ali I reviewed your letter dated May 7, 2008. After careful consideration, I have decided not to adopt your suggestions. However, I will consider your comments before making a decision on the referral of charges in this case. su_~ il ~ Susan J. Crawford Convening Authority for Military Commissions • • Flied with TJ 28 October 2016 Prlnledon * Roeydod Paper Appellate Exhibit 434A (Gov Sup) Page 37 of 54 UNCLASSIFIED//FOR PUBLIC RELEAS E UNCLASSIFIED//FOR PUBLIC RELEASE DEPARTMENT OF DEFENSE O FFICE O FTH E C HIEF DEFENSE COUNSEL 1600 DEFENSE PENTAGON WASHINGTON. DC 20301 · 1.600 7MAY2008 MEMORANDUM FOR THE HONORABLE SUSAN J. CRAWFORD, CONVENING AUTHORITY, OFFICE OF MILITARY COMMISSIONS SUBJECT: Request Delay in Referral of United States v. Ali Abdul Aziz Ali to Allow for Consideration ofMiti~ation Evidence On behalf of Mr. Ali, we respectfully request that you delay the referral decision iri his case so that he may present evidence in mitigation classified as top secret. Further, a delay will · provide the defense the opportunity to request limited pre-referral discovery of additional mitigation evidence relevant to whether the death peniihY is warranted in his case. Finally, the additional time will allow the defense to begin its mitigation investigation which is likely to uncover evidence relevant to mitigation. Delay in Referral Will Allow the Defense to Present Evidence Classified as TS/SCI SAP in Support of a Non-Capital Referral • "{W]e believe that in capital cases the fund.amental respect for humanity underlying the Eighth Amendment requires consideration pf the character and record of the individual offender and the drcumstances of the particular offense as a constitutionally indispensable part of the process of inflicting ttie penalty of death. This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in Its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for rellablllty In the determination that death is the appropriate punishment In a specific case." Woodson v . North Carolina, 428 U.S. 280, 304-305 (1976) This qualitative difference--the irrevocability of the death penalty--should compel you to proceed cautiously to ensure that the referral decision is reliable, i.e., a reasoned response reflecting both the aggravating and mitigating factors unique to Mr. Ali's case. Last week, lead counsel, LCDR Mizer met wiih Mr. Ali over the course of several days. Puring these meetings, Mr. Ali related powerful information which LCDR Mizer is considering presenting to you in mitigation. The government has classified infonnation imparted to counsel from Mr. Ali as TS/SCI SAP. • Any capital case, but particularly a capital case of this complexity, requires a defense team to provide competent representation. See Guideline 4.1, ABA Guidelines on the Appointment of Counsel in Death Penalty Cases (rev. 2003). To this end, the Chief Defense Counsel detailed additional military ·counsel to represent Mr. Ali, and LCDR Mizer is seeking the assistance of civilian counsel with signifiqant experience in complex criminal litigation. Aside from LCDR Mizer, no counsel yet has the required security 0 Flied w ith TJ Appellate 28 October 2016 Exhibit 434A (Gov Sup) Page 38 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE • clearances. Consequently, there can be no discussion within the defense team regarding whether to reveal attorney-client confidences in our argument for non-capital referral. a Further; assuming that the defense was prepared to reveal this information, the Office of the Chief Defense Counsel does not yet posses the logistical capability to create a memorandum which incorporates TS/SCI SAP information and legal argument. In light of the nature of the evidence involved, the defense respectfully requests a delay in the referral until the government is able to facilitate counsel's ability to confer with one another and communicate significant mitigation evidence to you. Jn the alternative, the defense requests a brief delay in referral until the conclusion of the Hamdan trial scheduled . 1 to begin the week of May 26 h. This will allow LCDR Mizer (counsel for Mr. Hamdan) the opportunity to discuss the matter further with Mr. Ali, obtain his consent to disclose this · information, and determine how such TS/SCI SAP information can be communicated to you for your consideration. The Defense Requests a Delav in Referral In Order to Request the Government Provide. Pre-Referral Discovery Relating to Mitigation Evidence • "Given that the imposition of death by public authority is so profounply different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than In noncapital cases. " Lockett v. Ohio, 438 U.S. 586, 605 (1978). This need to ensure individualized consideration to reduce the risk of arbitrary death sentences has long shaped the creation of substantive and procedural protections unique to .capital trials. See Furman v. Georgi!!, 408 U.S. 238 (1972) (striking down death penalty under the Eighth Amendment based on unfettered discretion provided sentencer); Godfrev v. Georgia, 446 U.S. 420 (1980) Uurors must be provided with clear, objective standards in determining whether death is appropriate); Simmons v. South Carolina, 512 U.S. l 54 (1994) (explanation of parole ineligibility required); Mills v. Marv land, 486 U.S. 367 (1988) (striking down requirement that jurors be unanimous regarding mitigation); and Penry v. Lvnaugh, 492 U .S. 302 (1989) (sentencer must be able to consider and give effect to mitigation evidence). In both the military and federal systems, there are procedural protections which apply during the decision-making process regarding whether to impose the death penalty. In the federal system, defonse counsel are provided the opportunity to present evidence and argument in mitigation prior to the Attorney General's final decision. See , U.S. Attorneys' Manual 9-10. 120. Similarly, the Article 32 Investigation provides military accused the opportunity to call witness and present evidence in mitigation. The report of the Article 32 Investigation is available for consideration by the Convening Authority at referral. • There is nothing in the Rules for Military Commissions which precludes you from allowing the defense to pl'.esent evidenc·e in mitigation. To the contrary, the Rules contemplate the c.o nsideration of mitigation evidence. See, Discussion to R.M.C. 406 (recommending that Flied with TJ 28 October 2016 2 Appellate Exhibit 434A (Gov Sup) Page 39 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASS IFIED//FOR PUBLIC RELEAS E • the pretrial advice include a discussion of"significant aggravating, extenuating and mitigating factors"). Evidence in mitigation should not be limited to that identified by the legal advisor in the pretrial advice. The legal advisor is not in a position to advocate for Mr. Ali and can not collect evidence from Mr. Ali for presentation. In fact, R.M.C. 601 allows you to consider "information from any sour.ce" iri i-naking the referral decision. Consequently, the defense requests the opportunity to seek mitigation evidence from the govemment through discovery' and will continue to pursue its own independent mitigation investigation. · · Delay Permits the Defense to Begin its Mitigation Investigation in Order to Present the Convening Authority with Mitigation Evidence that Compels a Non-Capital Referral "{V)irtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances." Eddings v. Oklahoma, 455 U.S. 104, 114 (1982). "Ccunsel at every stage have an obligation to conduct thorough an.d independent investigations relating to the issues of both guilt and penalty." ABA Guideline 10. 7 for the Appointment of Counsel in Death Penalty Cases. · • Counsel, only recently detaiied to Mr. Ali's case, have begun a mitigation investigation. However, one counsel acting alone does not have the ability to engage in the type of exhaustive, complex investigation required to uncover and develop compelling evidence mitigating against the death penalty. Such an.investigation is typically undertaken by a defense team of individuals possessing different skills (such as the ability to screen for the presence of mental or psychological disorders or impairments). See ABA Guideline 4. 1. The defense is diligently seeking to assemble such a team. In the interim, the defense is purs.uing the limited information that is not currently within the possession and control of the government. The defense seeks a delay in the referral decision, so that, at the least, it may develop and present the mitigation evidence already provided to LCDR Mizer by Mr. Ali. Defense Requests the Opportunity to Meet with Convening Authority to Present Relevant Mitigation Evidence "The right to representation by counsel is not a formality. It is not c grudging gesture to a ritualistic requirement. It is of the essence of justice.. Appointment of counsel without affording an opportunity for hearing on a 'critically important' decision is tantamoun t to denial of counsel." Kent v . U.S .. 383 U.S. 541, 561 (1966) . • The Supreme Court's decision in Kent involved the provision of counsel at hearings to detem1ine whether juveniles could be charged as adults. Although the factual contexts are different, the principle which affirms the importance of counsel is equally applicable to the Military Commissions. One of the fundamental protections extended to detainees charged under the Military Commissions Act is the appointment of detailed military defense counsel.. As Mr. Ali's counsel, we request the opportunity to meet with you prior to the referral decision to advocate on · his behalf. 1 Contemporaneous with this memorandum, the defense submitted a limited pre-referral discovery request to the prosecution seeking 'the disclosure of mitigation evidence. Flied with TJ 28 October 2016 3 Appellate Exhibit 434A (Gov Sup) Page 40 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASS IFIED//FOR PUBLIC RELEAS E ,. • The referral decision is critically important, particularly in a high publicized case involving defendants who are universally reviled. Realistically, the decision represents Mr. Ali's best chance of avoiding execution. As the Convening Authority, you have the discretion to allow the defense the opportunity to meet with you to present relevant mitigation evidence. The extraordinary circumstances involved in the decision to refer Mr. Ali's case capital support such additional procedural protections. Further, at this point lime, a personal meeting may be the most realistic way for the defense to present evidence currently classified asTS/SCI SAP. On behalf of M r. Ali, J appreciate your consideration of our request that you delay the referral decision in his case. The provision of such a delay helps to guarantee that the weighty decision you must make will represent an .informed, individualized determim1tion which takes into account both the aggravating and mitigating factors relevant to Mr. Ali. Respectfully submitted, (O ~ BRIAN MIZER ~ • • Flied with TJ 28 October 2016 AMYS. FITZGIBBONS . MAJ,JA, USAR Counsel for A Ii A bdu/ Aziz.Ali 4 Appellate Exhibit 434A (Gov Sup) Page 41 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLI C RELEASE •• 08 Apr 08 From: S.M. Lachelier, CDR, JAGC, USN, Detailed Defense Counsel R.E.N. Federico, LT, JAGC, USN, Detailed Defense Counsel To: S.J. Crawford, Convening Authority, Office of Military Commissions Subj: RAMZI BIN AL SHIBH'S REQUEST FOR EVIDENCE MITIGATING AGAINST THE DEATH PENALTY The U.S . Attorneys' Manual ("the Manual") delineates the procedure for determining whether the death penalty should be sought in individual cases. See U.S.A.M. 9-10. Under the Manual, the defense must be permitted the opportunity to submit materials and meet with the reviewing committee, before any final decision is made about whether to pursue the death penalty. See U.S.A.M. 9-10.120 ("No final decision to seek the death penalty shall be made if defense counsel has not been afforded an opportunity to present evidence and argument in mitigation.") The Manual also emphasizes that: [e]ach such decision must be based upon the facts and law applicable to the case and be set within a framework of consistent and everi•handed national application of Federal capital sentencing laws. Arbitrary or impennissible factors-such a~ a defendant's race, ethnicity; or religion-will not inform any stage of the decision-making process. The overriding goal of the review process is to allow proper individualized consideration of the appropriate factors relevant to each case. • U.S.A.M. 9-10-030. Furthermore, under federal law, an accused is allowed to introduce any evidence regarding his background, record, character or circumstances of the offense that mitigates appl ication of the death penalty. See 18 U.S.C. § 3592(a). The Manual and federal law regarding administration of the death penalty represent the best judgment of the United States regard ing what constitutes the proper method for determining whether the death penalty should be invoked. As you carry out your duties under R.M.C. 407 (" Action by convening authority"), you are entertaining seeking the death penalty against Mr. Ramzi Bin al Shibh. He must be accorded the same even-handed consideration that the U.S. government affords any other person who may be facing the death penalty. The Defense cannot adequately represent Mr. Bin al Shibh, and you cannot properly execute your duties under R.C.M. 407 and Regulation for Trial by Military Commission Section 4-3 ("Referral), without review of the mitigation issues at stake in this case. • Accordingly, in order to assure Mr. Bin al Shibh receives adequate representation and due process in the referral of his case, he requests, by and through his detailed defense attorney, Flied with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 42 of 54 UNCLASSIFIED//FOR PUBLI C RELEASE UNCLASSIFIED//FOR PUBLIC RELEAS E • the production of the following discovery, or the opportunity to inspect, copy, or photograph each of the items listed in the sections below. This information is sought so that Mr. Bin al Shibh may have the opportunity of presenting mitigating evidence that would mitigate against the application of the death penalty in his case. 1. All reports or other documentation in the possession, custody or control of the U.S. government, that indicates whether Mr. Bin al Shibh assisted intelligence and law enforcement authorities, and any information indicating whether any attacks on the United States or Americans may have been avoided as a result of any such assistance. 2. All results of any interrogations or interview of Mr. Bin al Shibh, whether conducted by military or civilian personnel of the U.S. government. 3. Any statement - oral, written, or recorded - made or adopted by the accused, that are within the possession, custody, or contml of the U.S. government, the existence of which is known or by the exercise of due diligence may become known. • 4. All records in the possession, custody or control of the U.S. government, relating to alleged, suspected, investigated, substantiated or actual incidents of ill-treatment of Mr. Bin al Shibh when he was held in or interrogated at Guantanamo Bay Naval Base and at any other detention facility, including but not limited to the following facilities: Udon Thani, Thailand; Mihail Kagalniceanu (MK), Romania; Temara, Morocco; ISI detention facility, Karachi, Pakistan; Szymany, Poland . All records, in the possession, custody or control of the U.S. government, relating to the treatment of Mr. Bin al Shibh since his capture on September 11, 2002, including any and all medical treatment he has received to-date; and information relating to his mental capacity, whether before or after the alleged offenses. This request includes: c-0pies of the records of any and all medical screenings, physicals, examinations, mental health evaluations, as well as notes prepared by any treating physician, physician's assistant, medic, psychiatrist, psychologist, chaplain, counselor, or other person who has examined the mental or physical condition of Mr. Bin al Shibh at any time since he entered the custody of the United States (whether or not that custody was transferred at some time), including, but not limited to, all files addressing Mr. Bin al Shibh that were created or kept by any "Behavioral Sciences Team" involved with him. 5. All records and information in the possession, custody or control of the U.S. government 6. relating to interrogation methods employed on Mr. Bin al Shibh since his capture on September 11, 2002. This request includes a request for logs, notes and any other documentation addressing · methods of interrogation employed on him. • 7. All documents or information regarding any mistreatment of Mr. Bin al Shibh at the hands of U.S. or Allied Armed Forces, civilians or contractors, of which the government is aware. For purposes of this discovery request, 'mistreatment' includes the use of any "special interrogation plan," "harsh interrogation techniques" or other methods of interrogation. This includes any recorded allegation of such mistreatment made by Mr. Bin al Shibh, any witness to the mistreatment, or any non-governmental organization (e.g., the International Committee for the Red Cross) that purports to document allegations of mistreatment. Flied with TJ 28 October 2016 2 Appellate Exhibit 434A (Gov Sup) Page 43 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE • 8. A ll information that indicates or tends to suggest that Mr. Bin al Shibh's role in the . alleged offense was not as significant as any other of the accused. Mr. Bin al Shibh, through his detailed defense attorney, requests the preservation of all the information sought, whether or not you intend to produce it or allow the defense to inspect it. In order to assure Mr. Bin al Shibh's right to adequate counsel and h.is due process rights as his case moves forward, he also respectfully requests that the above information be provided prior to referral of his case. By:_/~~~~~.~~~ S.M. Lachelier CDR, JAGC, USN Detailed Defense Counsel R.E.N. Federico LT, JAGC, USN Detailed Defense Counsel • • Flied with TJ 28 October 2016 \ 3 Appellate Exhibit 434A (Gov Sup) Page 44 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE / ' '' DEPARTMENT OF DEFENSE O FFIC E OF T HE CHIEF DEFENSE C O UNSEL 1600 DEFENSE PENTAGON WASHINGTON, DC 20301-1600 31 March 2008 From: To: Subj: COL Steven David, Chief Defense Counsel, Office of Military Commissions Susan Crawford, Convening Authority, Office of Military Commissions REQUEST FOR FAIRNESS PROCESS IN DEATH PENALTY REVIEW FOR KHALID SHEIKH MOHAMMED , WALID MUHAMMAD SALIH MUBARAK BIN 'ATTASH, RAMZI BIN AL SHIBH,ALI ABDUL AZIZ ALI, MUSTAFA AHMED ADAM AL HAWSAWI 1. The following letter is submitted on behalf of the above referenced detainees against whom capital c~arges have been preferred. I make this . request as the Chief Defense Counsel prior to detailing counsel. I request that they receive the same consideration and process given to other defendants facing the imposition of the death penalty by the U.S. government . • 2. ·The U.S. Attorneys' Manual {hereinafter, "the Manual# delineates the procedure for detepnining whethe r the deatp penalty s houl d sought i n individual cases. See U.S.A.M. 9-10 . Under the Manual, the defense must be permi tted the opportunity to submit materials and me et with t he reviewing committee, before any final decision is made about whether to pursue the death penal ty . see u.s.A . M. 9- 10.120 {"No final decision to seek the death penalty shall be made if defense counsel has not been afforded an opport unity to present evidence and argument in mitigation.#) be The u . s Attorneys' Manual also emphasizes that : [e]ach such decision must be base d upon the facts and l aw app lica ble to the case and be set within a framework of consiste nt and even-handed national application of Federal capital sentencing laws . Arbitrary or impermis sible factors- such.as a defendant's race, ethnicity, or religion-will not inform any stage of the decision- making process. The overriding· goal of the review process i s to allow proper individualized consideration of the appropriate factors relevant to each case. · • Flied with TJ 28 October 2016 Appellate Exhibit 434A (Gov Sup) Page 45 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE • U.S.A.M. 9-10-030 . One may not successfully assert that the United States Attorney's Manual is not binding on proceedings before the Military Commissions and that the ·guidance contained therein may thus be ignored with impunity . The Manual was enacted by Congress after consideration and input from the three co-equal branches of the United States Government and represents the best judgment of the United States as to the proper administration of justice. This wisdom was acquired as the result of innumerable proceedings before many different forums. Such judgment . may not be easily dismissed and it certainly can not be ignored in a capital proceeding where the audience is not only the people of the United States, but literally the entire .world. The q>nvening Authority entertains demanding the death penalty against Mr. ~alid Sheikh Mohammed, Mr. Walid Muhammad Salih Mubarak Bin 'Attash, Mr. Ramzi Binalshibh, Mr . Ali Abdul Aziz Ali, and Mr. Mustafa Ahmed Adam al Hawsawi. Justice demands that they be accorded the same opportunity . for even handed . consideration of their cases as would be' required of the United States government in any other capital p~oceeding. • 3. These individuals are denied the rights to submit extenuating and mitigating evidence provided to those who are before military courts-marital. Unlike members of the military who are accused of serious offenses, these individuals are denied the right to a hearing before an impartial officer prior to the referral of charges to a general court martial. · See Manual for courts Martial, Rule 405. At such a hearing, a military member would be entitled .not only to cross - examine witnesses who would provide testimony against him,· but also to compel the production of evidence, produce witnesses, and to present anything in defense, extenuation, or mitigation for · consideration by the ·investigating officer. . Id. . The right of a military accused to sUbmit evidence by means of the Arti~le 32 hearing prior to the referral. of charges provides .an analog in the military justice system to the requirement in the U.S . Attorneys' Manual that a defendant be · permitted· to meet, through counsel, with the . reviewing committee prior to any final decision to seek the death penalty. The failure of the Military Commissions Act to specifically include such. a provision highlights the need for the ·convening Authority to follow the recommendations of the Manual as discussed above. • Flied with TJ 28 October 2016 2 Appellate Exhibit 434A (Gov Sup) Page 46 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLI C RELEASE ... ,·' • • 4. U. S. Law Recognizes Mitigating Factors Relevant in this Case . Under Federal law as articulated by the Manual, the government mus't conside r various e xtenuating circumstances about a defendant before determining whether to seek the death penalty. Notably, each of these' individuals has been held prisoner for anywhere from four to six years, under extraordinarily punishing conditions. Furthermore, until February of this year, none o f t hese prisoners knew when,' or if, they would be brought to trial. The full ramifications of these conditions, from the impact on these individuals to the international diplomatic effect, are appropriate issues to be considered in determining whether the ' death penalty ou9'ht: to be sought f or each of these individuals. 5. Victims' Families Opposing Death. The U.S. Attorneys' Mariual, in outlining the process for determining whether to seek the death· penalty, specifies: • The United States Attorney should include the views of the victim's famiiy concerning the death penalty. in any submission made to the Department. See U. S .A.M. 9-10.070. A number of families affected by the attacks of September 11, 2001, have asserted their opposi.tion to the imposition of the death penalty i n prosecutions related to these attacks, · including the present cases. Some express the beliefs of the loved ones they have lost who opposed the death penalty; others express grave concern over the use of the death penalty for r evenge. The strong opposition by some of these families must be given great consideration notwithstanding the fact that there will also be many families 'who support capita l punishment . The lack 'of unanimity on this issue militates against the ultimate penalty. · Pursuing capital cases, in a system that even many of our own citizens severely challenge, furthers neither the credibility of the united States nor the international reputation that our nation has traditionally enjoyed as the leading advocate of the Rul e of Law. • Flied with TJ 28 October 2016 3 Appellate Exhibit 434A (Gov Sup) Page 47 of 54 UNCLASSIFIED//FOR PUBLI C RELEASE UNCLASSIFIED//FOR PUBLI C RELEASE • 6. · Honoring United States Commitments . In Hamdan v. Rwnsfeld, 548 u.s. , 126 s.ct . .2749 ' (2006), the Supreme Court found that Common Article 3 of t he Geneva· Convention applied to the detention. qf Mr. Hamdan and proceedings initiated against him. See Id., at 2796 . To ' conform to Common Article 3, these six prisoners must be tried before ·a . regularly constituted court which affords them •at least the barest of those trial protections that have been recognized by customary international law.# Id . at 2979. . customary international law, including United States commitments under existing international treaties,, specifies what these trial protections include .. The International Covenant on Civil and Political Rights~ which the United States ratified in 1992, enumerates the due process rights that must apply in criminal cases. See ICCPR, Art. 14. These right s include: 1. 2. 3. • 4. 5. 6. 7. 8. the right to a fair and public hearing by a competent, independent and impartial tribunal; the right to be presumed innocent until proved guilty according to law; · the right to be informed promptly and in detail of the. nature of the charge; the right to have adequate time and facilities to prepare his defense and communicate with counsel of his own choosing; the right to be trieq without undue delay; the. right to be present at triali the right to examine witnesses against him and obtain attendance of witnesses the right not to be compelled to testify against himself or to confess guilt . . The ICCPR . f urther provides that the de~th penalty may only be imposed when the rights the Convention a ffords are respected. See ICCPR, Art. 6. Article 6 further states that the death penalty may be imposed only in accordance with the law in force at the time of the commission of the al~eged offense. The Military Commissions Act as well as its predecessor, the Detainee Treatment Act (the statute in force when Hamdan was decided) were both enacted after the commission of the offenses under which these individuals are charged. The General Assembly of the United Nations has specifically • Flied with TJ 28 October 2016 4 Appellate Exhibit 434A (Gov Sup) Page 48 of 54 UNCLASSIFIED//FOR PUBLI C RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE .. • noted that its members must . "review their legal rules and practic.e s so as to' guarantee the most careful legal procedures and the greatest possible safeguards for the accused in capital cases•. G.A. Res. 35/172, Dec. 15, 1980. A review of the history of the present cases, the Military Commissions Act and the rules implementing.Military Commissions process demonstrate how the Commissions contravene the international commitments this country has made. While the propriety of the Commissions process itself may be litigated at a later date, it is immediately apparent that system is open to chal'lenge. Pursu:j.t of the death penalty in these cases will vastly ex.a cerbate these institutional deficits . Some .of the more striking of these institutional challenges are outlined below . • First, the right to .be ' tried without undue delay was lost · years ago. These individuals have all been imprisoned under extreme conditions for years. During most of this period, they were denied the right to counsel. They now face the significant . likelihood of further violations of their internationally recognized human rights in that their counsel will almost. certainly be pressured to schedule hearings as soon as possible. Any such imposed expeditiousness will jeopardize their right to have adequate time and facilities to prepare their respective defenses. · · These individuals' internationally recognized right to 'the presumption of innocence has similarly been. abridged·. The . President of the Unitep States has personally referred to these individuals as 1• the worst of the worst." . Most recently, the Attorney' General referred to them as ~poster children for the death penalty•. Significantly, the Attorney General further noted that they should not receive the death penalty because "they want to be martyrs." Associated Press, 14 March 2008. Regardless how one inte~rets the Attorney General's statements, public figures making very public statements have sealed the outcome of the pending proceedings and foreclosed the possibility of a fair trial: the presumption of innocence has been vitiated. Commission members will be improperly . predisposed to vote for guilt and for imposition of the death penalty should the government so request. One must also note that the rules of evidence permit the admission of hearsay evidence, something that is not allowed in the court-martial system. The rule against hearsay evidence is • Flied with TJ 28 October 2016 5 Appellate Exhibit 434A (Gov Sup) Page 49 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE • • not a mere evidentiary nicety, but the evidentiary foundation that ensures the acc~sed ' s right .to confront his accusers. Under the Com~issions system, a government agent could be called to testify and recount what supposed eyewitnesses told him, rather than having the eyewitnesses themselves testify at trial. With the obliteration of the long-standing ruie against hearsay evidence, these individuals will effectively be denied their internationally recognized right to a public trial, · where they confront their accusers. Under the Commissions rules, the right to examine witnesses, sacred in the U.S. Constit~tion, installed in the military justice system,· and recognized under the ICCPR, is lost. · · The use of hearsay evidence is especially troubling given that it is likely that the evidence the government will offer was ·obtained in violation of another international treaty obligation, the Convention Against Torture (CAT) , which the United States ratified in 1994. This international obligation requires the government to prevent acts of cruel, inhuman or degrading treatment or punishment. Despite this commitment, the ,government has· acknowledged using •harsh . interrogation techniques" on individuals . it has held . at secret detention facilities located overseas, and at Guantanamo; The techniques the government has admitted using include water-boarding, sleep and light deprivation, and .social isolation for extended periods. Putting aside the question of' whether the use of these procedures contravened existing U.S . , law, the use of evidence, obtained under such conditions would be reprehensible, particularly without affording one the right ' to confront the individual wi tnesses providing this evidence and to question them about the circumstances under which they were interrogated . . To allow this procedural posture in a death. penalty case should be unthinkable. Yet, this is exactly what is proposed if these cases are . referred as capital cases. The unfortunate reality is that these ind~viduals do not face a fair trial. Each has already been tried and convicted in the media and by government officials, up to and including the President of the United States. This is a patent violation of the rights afforded under international law, as well as those rights 'that our forefathers contended were such basic human rights that they were ·included in the Constitution of the United States of America, the document which we are sworn to prot.e~t and defend. 7. • Flied with TJ 28 October 2016 · Conclusion. 6 Appellate Exhibit 434A (Gov Sup) Page 50 of 54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE • Viewed under international law, and long- standing principles of the u.s. Constitution, our government's actions in the historical progression Of· the Commissions thus far have. made it such that our government does not have clean hands as it continues into these ·proceedings·. It is inescapable that seeking to impose the death penalty on these individuals under these circumstances, and through the gravely flawed process -that . is Military Commissions system, will further fuel c·riticism of ·United · States policies, as regards these individuals, and more . generally as regards United States prosecution of this war. Pursuing the death penalty in these cases will expose the .United states to the opprobrium of the world in a manner that could not be countenanced, even with an invocation of the attacks of September 2001. Accordingly, on behalf of Mr. Khalid Sheikh M0hammed, Mr. Walid Muhammad Salih Mubarak Bin 'Attash, Mr. Ramzi Binalshibh, Mr.Ali Abdul Aziz Ali, and Mr. Mustafa Ahmed Adam al Hawsawi, I respectfully request that these cases, . if ref be referred with a recommendation for the death • • Flied with TJ 28 October 2016 co en David·, USA Chief Defense Counsel 7 Appellate Exhibit 434A (Gov Sup) Page 51 of54 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLI C RELEASE •• DEPARTMENT OF DEFENSE O FFIC E OF THE CHIEF DEFENSE C O U N SEL 1600 DEFENSE PENTAGON WASHI NGTON, OC 20301 · 1600 April 10, 2008 MEMORANDUM FOR THE HONORABLE SUSAN J. CRAWFORD, CONVENING AUTHORITY, OFFICE OF MILITARY COMMISSIONS SUBJECT: Khalid Sheikh Muhammed's Request for Evidence Mitigating Against Th.e Death Penalty The U.S. Attorneys' Manual ("the Manual") delineates the procedure for determining whether the death penalty should be sought in individual cases. See U.S.A.M. 9-10. Under the Manual, the defense must be permitted the opportunity to submit materials and meet with the reviewing committee, before any final decision is made about whether to pursue the death penalty. See U.S.A.M. 9-10.120 ("No final decision to seek the death penalty shall be made if defense counsel has not been afforded an opportunity to present evidence and argument in mitigation.") The Manual also emphasizes that: • [e]ach such decision must be based upon the facts and law applicable to the case and be set within a framework of c