DEPUTY CHIEF PROSECUTOR COL ROBERT MOSCATI
REMARKS AT GUANTANAMO BAY
6 JULY 2017
Good evening. On Friday, the Military Commission convened to try the charges against
Ahmed Mohammed Ahmed Haza al-Darbi will hear motions regarding the sentencing phase of
the proceeding. On February 20, 2014, Mr. al-Darbi pled guilty to the charged offenses of
attacking civilian objects, attacking civilians, hazarding a vessel, terrorism, and attempting to
hazard a vessel and to commit terrorism. The charges stem from an attempt to carry out terrorist
attacks against shipping vessels in the Strait of Hormuz and off the coast of Yemen, and a
completed terrorist attack against the French oil tanker, MV Limburg. As part of the plea
agreement between the United States and Mr. al-Darbi, his sentencing proceeding was delayed
until at least August 20, 2017 in order to permit Mr. al-Darbi to cooperate with the Government.
Matters under consideration by a military commission in this or any other particular case
are authoritatively dealt with by the presiding Judge. Any comments addressing systemic issues
that are the subject of frequent questions by interested observers should always be understood to
defer to specific judicial rulings, if applicable. Although I will not comment on the specifics of
any motions pending before a military commission, I will provide background for this week’s
pre-sentencing sessions.
There are no victims or family members of victims attending this week’s hearings.
Developments in United States v. Mr. Ahmed Mohammed Ahmed Haza al-Darbi
The Docketing Order for this week’s session is located at Appellate Exhibit 29, and is
available on the Office of Military Commission’s website. According to the Docketing Order,
the Commission will hear argument and receive evidence, as required, with respect to three
motions. There is an amended docketing order (Appellate Exhibit 29A) that changes the time
for the hearing on 7 July from 0900 to 1300.
Appellate Exhibit 22 is a motion in limine by the Government requesting that the
Military Judge find that the detainee does not have a privilege under Military Commission
Rule of Evidence (M.C.R.E.) 513 and that the Government be allowed to review the previously
segregated behavioral health records of the detainee. The Government contends no privilege
exists because a law of war detainee does not have a reasonable expectation of privacy in his
behavioral health records. Even if such an expectation was determined to exist, M.C.R.E.
513(d)(7) states that no psychologist/patient privilege exists when the defense offers statements
or other evidence concerning his mental condition in defense, extenuation or mitigation. The
Defense opposes this motion.
Appellate Exhibit 24 is a Government motion in limine requesting that the Military
Judge preclude the defense from introducing al-Darbi’s deposition testimony that he gave in
the court-martial case of U.S. v Corsetti. The Government’s position is that this previous
deposition testimony is inadmissible hearsay and falls under Military Rule of Evidence
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 (M.R.E.) 804(b)(1). According to 10 USC § 949a, the Manual for Military Commissions is
adapted from the Manual for Courts-Martial and generally applies the rules of evidence
applicable in trials by general courts-martial. The Defense opposes this motion.
Finally, Appellate Exhibit 27 is a Government motion to modify Appellate Exhibit
18C, the Litigation Scheduling Order to slightly modify the sentencing hearing for al-Darbi
from the original date of 3-11 August 2017 to the week of 28 August, 2017. The Defense
opposes this motion and asserts that such a requested delay would materially violate Mr. alDarbi’s pretrial agreement.
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We thank the Soldiers, Sailors, Airmen, Marines, Coast Guardsmen, and government
civilians of Joint Base Andrews, Joint Task Force Guantanamo, and Naval Station Guantanamo
Bay for their continuing support to these proceedings.

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