Case Document 270-1 Filed 01/13/17 Page 2 of 5 UNCLASSIFIEDHFOR PUBLIC RELEASE MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA AE 286T v. ORDER KHALID SHAIKH Emergency Defense Motion WALID MUHAMMAD SALIH to Order the Government to Produce the MUBARAK BIN Full, Unredacted Senate Report on the RDI RAMZI BIN AL Program, or, in the Alternative, to File the ALI ABDUL AZIZ ALL Report with the Commission to be Maintained MUSTAFA AHMED ADAM EX PARTE and Under Seal Pending Further AL HAWSAWI Rulings 10 January 2017 1. On 2 April 20M, Counsel for Mr. Ali ?led a motion1 to compel discovery ofthe full, un- redacted Senate Select Committee on Intelligence (SSCI) Study ofthe CIA Rendition, Detention, and Interrogation Program Report) and related documents. The Government responded,2 requesting the Commission defer ruling on AB 286.] because the Government was seeking to obtain access to the full SSCI Report from both the legislative and the executive branches.3 Among the issues raised in AB 386 is whether the Commission has authority to compel discovery ofa Congressional record. 2. On 30 January 2015, Counsel for the Accused tiled a motion4 (AF. 286]) requesting the Commission compel discovery ofthe SSCI Report to the Defense, or, in the alternative, order the Government to ?le the Report with the Commission ex park? and under seal so it can be made part of the appellate record and be produced at a later date. I All 236 Defense Motion to (Iompcl Discovery oI'Senate Select ICommittee on intelligence Study ol'RDl Program and Related Documents. ?led 2 April 2014. 2 236K Government Response To Defense Supplement to AF. 33s. Motion To Compel Discovery of Senate Select Committee on Intelligence Study Program and Related Documents. ?led l2 February 2Ul 5. 3 There were additional ?lings by the parties in the AE 286 series that are not germane to this Order. 4 AFI 286], Emergency Defense Motion to Order the Government to Produce the Full. Unrcdacted Senate Report on the RDI Program. or, in the Alternative. to File the Report with the Commission to be Maintained EXPARTE and Under Seal Pending l-?unher Rulings. tiled 30 January 2015. Appellate Exhibit 236T Page 1 of 4 PUBLIC RELEASE Case Document 270-1 Filed 01/13/17 Page 3 of 5 UNCLASSIFIEDHFOR PUBLIC RELEASE 3. On i3 February 2015. the Government responded.5 Within the response they asserted. ?The United States Department of Defense . . . can assure the Commission that it will preserve the status quo regarding the full Report absent either leave ofthe Commission or resolution of this litigation in the Prosecution?s favor. The Commission thus need not compel the Prosecution to file the SSCI Report with the Commission?? On 24 February 20l 5. the Government noti?ed? the Commission that. as of IS February 2015. the SSCI authorized them to review the full SSCI Report. 4. The Commission heard oral argument regarding 286] on 7' December 2016.3 The Government advised the Commission it was reviewing the full SSCI Report for discoverable information and was providing discoverable information to the Defense regarding the CIA Rendition. Detention, and interrogation (RDI) Program via AB 3089 at seqd? The Government was not prepared at that time to confirm whether the Department of Defense (1300) currently had a copy of the SSCI Report. I Following oral argument. the Commission ordered the Government to notify the Commission whether the currently possessed a copy ofthe SSCI Report.'2 On 5 Ali 286]. Government Response to Emergency Defense Motion to Order the Government to Produce the Full. Unredaeted Senate Report on the RDI Program. or. in the Alternative. to lile the Report with The L?onimission to be Maintained Ex Forte and Under Seal Pending Further Rulings. tiled i3 February lel 5. id. at 6. Ali 286M (GOV). Government Sixth Notice in Defense Motion To lL?otrtpuel Discovery of Senate Select Committee on intelligence Study of Program and Related Documents. filed 24 February 20'] S. 3 Unofticialx?Unauthenticated Transcript ofthe Khalid Shaikh Mohammad ct at Motions Hearing Dated 7 December 20?} from am. to 12:02 m. at pp. l444??i44?5. AB 308 MAM. Defense Motion to [?ompel Discovery Regarding (TIA Rendition. Detention. and interrogation Program. filed 30 June 2014. et seq. See mire All 397V. 'l'rial Conduct Order. Government Proposed Consolidation of ivlotions to Compel information Relating to the (flats Former Rendition. detention. and interrogation Program. dated 5 April 2016. ?1 'i?ranseript at 14466. Transcript at 14469 and '3 Ali 286D. Order: Emergency Defense Motion to Order the IGovernment to Produce the Full. llnredaeted Senate Report on the RIJI Program. or. in the Alternative. to File the Report with the Commission to be Maintained [it PARTE and Under Seal Pending Further Rulings. dated 7? December 2W6. Appellate Exhibit 236T Page 2 of4 UNCLASSIFIEDHFOR PU BLIC RELEASE Case Document 270-1 Filed 01/13/17 Page 4 of 5 UNCLASSIFIEDHFOR PUBLIC RELEASE 15 December 2016,? the Government advised the Commission that the had two copies of the SSCI Report and the treats the Report as a Congressional Record. 5. Findings. 3. The maintains two copies of the fuil SSCI Report. The treats its copies of the report as Congressional records. b. The Government, via AB 308 et seq has established that information referenced in the Report is potentially discoverable. c. The Government is currently in the process of providing RDI discovery in the AF. 308 series. The Government has invoked Military Commission Rule of Evidence (M.C.R.E.) 5056) to seek substitutions and other reiief for providing classi?ed information. The M.C.R.E. 5050) process is ongoing and the Government has not completed provision ol?RDl discovery in the AP. 308 series. Thus. the underlying motion by the Defense for the Commission to compel discovery of the Full un-redacted SSCI report is not ripe. d. The issues ofthe Commission's authority to compel discovery oi?Congressionai records and whether Congressional records in the possession the are ?within the possession. custody. or control ofthe Government" under Rule for Military Commissions 701(c)(1)) are also not ripe for decision. The Commission notes an Article Court within the D.C. Circuit has recently issued a preservation order for the Government to preserve the full SSCI Report lichens litigation concerning a Guantanamo Bay detainee not party to this case.' 13 AE 236R Government Notice Concerning Defense Motion to Compel Discovery Of Senate Select Committee on Intelligence Study of RDI Program. ?led l5 December 2016. See some Elohim Hussein v. Barrack {)bama. oi oi. No. GS?cv- 20? (RCL), Misc. No. US-mc-442 dated 28 December 20 HS. Appellate Exhibit 285T Page 3 of 4 UNCLASSIFIEDHFOR PUBLIC RELEASE Case Document 270-1 Filed 01/13/17 Page 5 of 5 UNCLASSIFI EDHFOR PUBLIC RELEASE e. The Commission agrees with the Government?s assertion in AE 286L that it is necessary to preserve the status quo regarding Do possession of the SSCI report pending completion ol?RDl discovery and resolution of the issues raised in the AB 286 series. 6. Ruling. a. The Commission motion to compel discovery of the Report is DEFERRED. b. The Defense motion to order the Government to ?le the SSCI Report with the Commission at party and under seal so it can be made part of the appellate record and be produced at a later date is GRANTED IN PART as provided in paragraph 7' of this Order. 7. Order. a. The Government shall ensure the preserves a copy of the full Report pending completion ol?RDl discovery and litigation of issues raised in the 286 series. b. This Preservation Order will remain in effect until otherwise ordered by this Commission or other Court of So ORDERED this 10th day ofJanuarv. 2017. JAMES L. POHL COL, JA. USA Military Judge PUBLIC RELEASE Appellate Exhibit 236T Page 4 of 4