MILITARY COMMISSIONS TRIAL JUDICIARY
GUANTANAMO BAY, CUBA

UNITED STATES OF AMERICA

AE 485D

v.

ORDER

KHALID SHAIKH MOHAMMAD,
WALID MUHAMMAD SALIH
MUBARAK BIN ‘ATTASH,
RAMZI BIN AL SHIBH,
ALI ABDUL AZIZ ALI,
MUSTAFA AHMED ADAM
AL HAWSAWI

Joint Task Force Guantanamo Policy #3.15
Requirements for Use of Dedicated Military
Aircraft and other Transportation Assets

30 June 2017

1. This order addresses an issue unique to the Trial Judiciary. As such, briefs from the parties
are not necessary.
2. On 23 June 2017, the Commander, Joint Task Force Guantanamo, Rear Admiral
Edward B. Cashman, issued a new policy 1 (Policy #3.15) regarding use of dedicated military
aircraft and other transportation assets. This new policy, as currently implemented, rescinds the
mode of transport for Military Judges and members of the Trial Judiciary staff directly
supporting the Military Judges. This mode of transport has been in place for the past 10 years
and was implemented to minimize commingling of the Military Judge with the parties, other
trial participants, and observers. Policy #3.15, as currently implemented, requires the Military
Judge and his staff to be transported and processed with all other personnel on the flight to and
from U.S. Naval Station Guantanamo Bay (NSGB). This causes the Military Judge and his staff
to be commingled with counsel, witnesses, victim family members, the media, and nongovernmental organizations throughout the entire in- and out-processing procedure.
3. Prior to implementing Policy #3.15 and changing the method of transport for the Military
Judge and his staff, no effort was made to reach out to the Trial Judiciary for coordination or

1

Headquarters, JTF, GTMO Policy #3.15, Requirements for Use of Dedicated Military Aircraft and other
Transportation Assets, dated 23 June 2017 (hereinafter Policy #3.15).

1
Appellate Exhibit 485D
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 input regarding the unique position the Military Judge has in the trial. Policy #3.15, as currently
implemented, does not give even tacit recognition to the concern about compromising the
independence of the Military Judge or his staff by exposing them to improper ex parte contacts.
4. On 17 January 2017, the Commission issued AE 485C 2 to address abrupt changes in the
lodging policy at NSGB. Though the specific issue in AE 485C was adequate housing, the
reasoning supporting the Order applies to all logistical support provided during on-island
Commission proceedings. Specifically, the Commission noted:
The Government has characterized the offenses before the Commission as “the
crime of the century,” and the Chief Prosecutor has stated, “This case presents
higher stakes and greater legal and logistical challenges, than possibly, any other
trial in U.S. history.” The Government chose to prosecute this case and other
Commission cases at NSGB. That choice carries with it the responsibility to provide
adequate logistical support for the Commissions… 3
5. Further language in AE 485C directly applies to the action by the JTF Commander:
Although at first blush this might appear to be a trivial issue to those observing the
Commission process from the outside, in the view of the Commission, it is yet
another example of how Commission proceedings are slowed or halted by external
forces making decisions without a full appreciation of the consequences those
decisions have on the Commissions. Such ad hoc decision-making goes to the very
integrity of the trial process. One issue always associated with litigation is the need
to maintain an appropriate degree of distinction and separation between the various
parties involved to mitigate risk of actual or apparent conflict, disclosure of
privileged information, and similar concerns. These issues are only accentuated in
the context of complex, high-profile capital litigation – a paradigm epitomized by
this case. The Commission understands that lay persons may not be fully familiar
with these concerns, but this does not alleviate the responsibility to foresee such
potential risks and take appropriate measures to forestall them. No court, military
or civilian, would unquestioningly defer to the government’s decisions regarding
logistical support when those decisions potentially impact the litigation process. 4
6. The Commission acknowledges that various equity holders are impacted by Commissions
hearings at NSGB. Nevertheless, the United States decided to conduct the hearings at NSGB,
cognizant of the logistical difficulties that might result. Unity of command and effort would be

2

AE 485C, Order: Mr. Ali’s Emergency Motion to Continue January 2017 Hearing Based On Failure to
Provide Adequate Lodging in Accordance With Joint Travel Regulation, dated 19 January 2017.
3
Id. at 2 (quoting: Holder: 9/11 Trials Will Weigh ‘Crime of the Century’ (13 November 2009) available
at: www.pbs.org/newshour/bb/law-july-dec09-holder2_11-13/; A message from Chief Prosecutor of
Military Commissions Mark Martins (10 February 2016) available at: http://911families.org/a-messagefrom-chief-prosecutor-of-military-commissions-mark-martins/.
4
Id. at 3.

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 ideal but that is not for the Commission to direct. The Commission has a responsibility to ensure
the proceedings are conducted professionally, as with any other trial, and will not permit third
parties to compromise the integrity of the process.
7. The Military Judge presiding over this case has consistently sought to avoid any appearance of
bias, and has assiduously avoided commingling with counsel for the parties, victim family
members, witnesses, non-governmental organizations, and the media. In the Commission’s view,
Policy #3.15, as currently implemented, will result in the very commingling the Commission has
sought to avoid. Such commingling threatens the integrity of the proceedings and the
independence of the Military Judge. The only remedy available to the Commission to protect the
integrity of the proceedings and the independence of the Military Judge is to abate further
hearings in this case at NSGB until such time as remedial action is taken to address the
unacceptable commingling generated by Policy #3.15, as currently implemented with respect to
transportation to and from the NSGB airfield and in- and out- processing of the Military Judge
and his staff. This abatement applies only to hearings in this case at NSGB. The proceedings may
otherwise continue unaffected by this Order.
8. ORDER: Commission hearings in this case at NSGB are hereby ABATED until appropriate
remedial action is taken to address the concerns raised in this Order. 5

So ORDERED this 30th day of June, 2017.

//s//
JAMES L. POHL
COL, JA, USA
Military Judge

5

The arraignment in this case took place on 5 May 2012. The Commission recognizes the long trial process may be
frustrating to some. This is a complicated case involving five accused facing possible capital sentences. It involves
voluminous discovery, classified and otherwise, literally encompassing the globe. It will take time to try this case.

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