UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [The R.M.C. 803 session was called to order at 1100, 2 13 October 2017.] 3 MJ [COL WATKINS]: The commission is called to order. 4 parties present when the commission recessed are again 5 present. 6 All The members are absent. Prior to this session, I held an R.M.C. 802 session 7 in chambers with counsel with both sides present. 8 session, the commission raised the issue of whether sensitive 9 information that may be subject to protective orders was During that 10 contained in the accused's unsworn statement marked as 11 Appellate Exhibit 041. 12 commission that some of the information was not sensitive 13 information and then agreed to redact potential sensitive 14 information. 15 accordingly to prevent disclosure during the oral portion of 16 the unsworn statement. 17 The defense confirmed for the The defense agreed to advise their client We next discussed the questions asked by the panel 18 yesterday afternoon. 19 discussion with counsel, I intend to tell the panel what 20 Section 948c of the MCA says with a brief explanation of what 21 it means and that jurisdiction is a matter of law that is not 22 within the panel's purview. 23 As to the first question, after I am paraphrasing, but does either side object to my UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 247 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 5 6 proposed answer to that question? TC [MR. SCHNEIDER]: The government does not object, Your Honor. CDC [MR. KASSEM]: No objection from the defense, Your Honor. MJ [COL WATKINS]: The panel's second question asked 7 whether there was information available surrounding the facts 8 and circumstances surrounding the accused's arrest. 9 parties agreed to and asserted to the court that there is no The 10 other relevant information available, and I intend to so 11 inform the panel. 12 13 Does either side object to that? TC [MR. SCHNEIDER]: The government does not object, Your Honor. 14 CDC [MR. KASSEM]: No objection, Your Honor. 15 MJ [COL WATKINS]: We then discussed the panel's third 16 question, which involved whether the accused's cooperation 17 extended to providing information about potential bombings 18 against shipping targets. 19 but due to the nature of the proposals, could not come to an 20 agreement; and the government requested additional time to 21 review certain documents. 22 directed that, after that review, the parties confer about a 23 solution. Both sides had proposed answers, I granted that request, and I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 248 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 We then had an additional 802 session wherein the 2 parties informed me that they had come to an agreement, which 3 was to enter into a Stipulation of Fact about the operative 4 facts that answered the member's question. 5 has been marked as Defense Exhibit C for Identification. 6 May I see Defense Exhibit C for Identification, 7 please? 8 9 That stipulation Thank you. Before I continue, Counsel, have I accurately characterized and summarized our 802 sessions of this morning? 10 TC [MR. SCHNEIDER]: 11 CDC [MR. KASSEM]: Yes, Your Honor. 12 MJ [COL WATKINS]: Good morning, Mr. al Darbi. Yes, you have, Your Honor. 13 Mr. al Darbi, do you have a copy of Defense Exhibit C for 14 Identification? 15 16 ACC [MR. AL DARBI]: MJ [COL WATKINS]: 18 ACC [MR. AL DARBI]: 20 21 22 23 Yes, Your Honor. 17 19 [Speaking in English] And is that your signature? [Speaking in English] Yes, Your Honor. MJ [COL WATKINS]: Before signing this stipulation did you read it carefully? ACC [MR. AL DARBI]: [Speaking in English] Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 249 Yes, Your UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 5 6 7 8 9 10 11 12 13 MJ [COL WATKINS]: Do you understand the contents of the stipulation? ACC [MR. AL DARBI]: [Speaking in English] Yes, Your Honor. MJ [COL WATKINS]: Do you agree with the contents of the stipulation? ACC [MR. AL DARBI]: [Speaking in English] Yes, Your Honor. MJ [COL WATKINS]: Before signing the stipulation, did your defense counsel explain the stipulation to you? ACC [MR. AL DARBI]: [Speaking in English] Yes, Your Honor. MJ [COL WATKINS]: Do you understand that you have an 14 absolute right to refuse to stipulate to the contents of this 15 document? 16 17 18 ACC [MR. AL DARBI]: [Speaking in English] Yes, Your Honor. MJ [COL WATKINS]: You should enter into this stipulation 19 only if you believe it is in your best interests to do so. 20 you understand that? 21 ACC [MR. AL DARBI]: 22 MJ [COL WATKINS]: 23 [Speaking in English] Yes, I do. I want to ensure that you understand how this stipulation is to be used. When counsel for both UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 250 Do UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 sides and you agree to facts, the parties are bound by the 2 stipulation and the stipulated matters are facts in evidence 3 to be considered along with all other evidence in the case. 4 Do you understand that? 5 6 7 ACC [MR. AL DARBI]: [Speaking in English] Yes, Your Honor. MJ [COL WATKINS]: Knowing now what I have told you, 8 Mr. al Darbi, and what your defense counsel earlier told you 9 about this stipulation, do you still desire to enter into the 10 11 12 13 14 stipulation? ACC [MR. AL DARBI]: MJ [COL WATKINS]: 16 CDC [MR. KASSEM]: 19 20 Do counsel concur in the contents of the stipulation? TC [MR. SCHNEIDER]: 18 Yes, Your Honor. 15 17 [Speaking in English] The government concurs, Your Honor. And for the defense, Your Honor, we do as well. MJ [COL WATKINS]: The stipulation is admitted into evidence as Defense Exhibit C. Are we ready for the members? 21 TC [MR. SCHNEIDER]: 22 CDC [MR. KASSEM]: We are, Your Honor. 23 ADC [LCDR YOUNG]: With regards to Defense Exhibit C, once Yes, Your Honor. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 251 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 you have addressed the other few questions, our request was 2 going to be for permission to publish copies to the members 3 and to have Mr. Kassem read the stipulation into evidence from 4 the podium. 5 6 7 Is that acceptable? CDC [MR. KASSEM]: object to that. into the record? 9 confused. 10 We have conferred with them earlier. MJ [COL WATKINS]: 8 The government, Your Honor, does not Publishing by reading and by reading That's two forms of publishing. ADC [LCDR YOUNG]: No, Your Honor. I am We request permission 11 to publish copies for the members to take back with them into 12 their deliberations, and then Mr. Kassem would read it. 13 MJ [COL WATKINS]: So not give them copies in open court, 14 but have them take those copies back for deliberations, 15 published in open court by Professor Kassem reading it to the 16 members? 17 ADC [LCDR YOUNG]: Yes, Your Honor. 18 MJ [COL WATKINS]: Okay. 19 20 I understand. Thank you. All right. Bailiff, call the members, please. 21 [The R.M.C. 803 session terminated, the members entered the 22 courtroom, and the Military Commission was called to order at 23 1108, 13 October 2017.] UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 252 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 MJ [COL WATKINS]: called to order. Please be seated. The commission is The members are present. Members, I want to personally apologize for the delay 4 this morning. 5 hearings outside of your presence are sometimes extended due 6 to unforeseen circumstances. 7 absolutely necessary, and I appreciate your patience. 8 9 As I told you at the beginning of this process, I assure you that this delay was Members, you had three questions yesterday afternoon. The first question asked for Section 948c of the Military 10 Commissions Act of 2009. 11 alien unprivileged enemy combatant is subject to trial by 12 military commission. 13 subject to the jurisdiction of a military commission. 14 Paragraph 2 and 3 of Prosecution Exhibit 001 15 establishes that the factual predicate for jurisdiction of the 16 accused has been established; however, you should note that 17 jurisdiction of this commission is a question of law, and you 18 are not required to make any findings concerning jurisdiction. 19 Section 948c merely states that any In other words, it establishes who is Your second question concerned whether information 20 was available surrounding the facts and circumstances of the 21 accused's arrest. 22 no other relevant information available. 23 My answer to that question is that there is Your third question involved whether the accused's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 253 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 cooperation extended to providing information about potential 2 bombings against shipping targets. 3 answered by the admission of additional evidence which has 4 been marked as Defense Exhibit C. 5 of Defense Exhibit C for deliberations. 6 That question has been You will be provided copies At this time, Professor Kassem of the defense will 7 publish this document to you by reading it to you. 8 proceed, Defense. 9 10 CDC [MR. KASSEM]: Thank you, Your Honor. May I use the podium? 11 MJ [COL WATKINS]: Absolutely. 12 CDC [MR. KASSEM]: Good morning. 13 You may This Stipulation of Fact is entered into by the 14 accused knowingly and voluntarily in the case of 15 United States v. Ahmed Mohammed Ahmed Haza al Darbi. 16 hereby stipulated and agreed by and between the prosecution 17 and the defense, with the express consent of Mr. al Darbi, 18 that the following facts are true: 19 It is On 12 August 2002, Mr. al Darbi provided information 20 to U.S. Government agents regarding a plot by an al Qaeda cell 21 operating in al Mukallah, Yemen, to attack an oil tanker or 22 other large ship near the Yemeni coast. 23 Mr. al Darbi reported that the planned method of UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 254 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 attack would be to load a small boat with explosives and 2 detonate it beside the target ship. 3 Mr. al Darbi also provided names, physical 4 descriptions, and last known locations of the members of the 5 al Qaeda cell in al Mukallah. 6 The information that Mr. al Darbi provided on 12 7 August 2002 is consistent with the facts regarding the plot in 8 the Stipulation of Fact dated 20 December 2013 (Prosecution 9 Exhibit 001) specifically with facts contained in 10 11 paragraphs 84, 86, 89, 94, 96, 98, 104, 106, and 107. Nothing in this stipulation supersedes, alters, or 12 should be interpreted to contradict paragraph 103 of the 13 Stipulation of Fact (Prosecution Exhibit 001) dated 20 14 December 2013. 15 So stipulated. 16 The document that the commission members will receive 17 bears the signatures of Mr. Ahmed al Darbi; myself; Major 18 Scott Medlyn, my colleague; Lieutenant Commander Ralph Young, 19 my colleague; and the prosecution representative, Mr. Bill 20 Schneider's signature, all dated October 13, 2017. 21 22 23 Thank you. MJ [COL WATKINS]: Thank you, Defense. Do any members have any further questions at this UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 255 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 time? 2 3 4 Apparently not. Defense, do you have any further evidence to offer? ADC [LCDR YOUNG]: Your Honor, at this time Mr. al Darbi would like to make an unsworn statement. 5 MJ [COL WATKINS]: 6 ACC [MR. AL DARBI]: 7 MJ [COL WATKINS]: 8 ACC [MR. AL DARBI]: You may proceed. [Away from microphone; no audio.] Absolutely. [Speaking in English] Honorable 9 Judge, Ladies and Gentlemen of the Commission, thank you for 10 your attention and consideration for my case and what I have 11 to say. 12 First, please know that I take full responsibility 13 for the choices I have made, and I am sorry for the actions 14 that led me to this place. 15 prepared to accept whatever sentence you think is just. 16 know that my words cannot change the past, but I am so deeply 17 sorry for the part I played. 18 I deeply regret them, and I am I Second, I am so sorry to my family, my father, who 19 passed away while I was here at Guantanamo Bay, my mother, my 20 siblings, and most of all to my wife and my children. 21 choices have caused them a great hardship and pain and shame. 22 I beg them to forgive me. 23 My The other important thing I want to say here is thank UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 256 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 you. 2 protecting my wife and children from danger and caring for 3 them, and for giving me hope and a future to live for. Thank you to God, the Creator, who saved my life, for 4 My deepest thanks to my wife, Muna, and my children 5 Fatimah and Mohammed for hanging on and not forgetting me for 6 15 years -- I have been in U.S. custody since 2002 -- even 7 though you have every reason and every chance to leave. 8 9 I am grateful for each person who has dealt with me since my capture, even those who treated me harshly, because I 10 have learned something from each one. 11 who treated me kindly because I have learned something from 12 each one. 13 a good heart because they are the ones who showed me humanity 14 in my darkest times. 15 I am thankful for those I am thankful for those who treated me kindly with The guards who showed me kindness, even though they 16 believed I was their enemy, they are the lasting legacy to me. 17 I leave this place a better man thanks to them. 18 who were harsh with me, I give my sincerest hope for the 19 easement of whatever struggle they may have, and I want them 20 to know that the pain they caused me is forgiven. 21 To the guards The time I have spent at Guantanamo Bay has taught me 22 to see clearly who I was, where I was going and what I was 23 doing. It gave me time to think and to see that the path of UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 257 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 violence is wrong and does not stand on any solid foundation. 2 It gave me time to think and to see that the violence is wrong 3 and does not stand on any solid foundation. 4 I'm thankful for these lessons. I wish that I could 5 talk now to myself years ago or to any young man considering 6 the same path and tell them please don't lose your life and 7 your future for something that is not real. 8 9 I would like publicly to thank many groups of people who have supported me during my time at Guantanamo Bay. 10 have learned a great deal from each of you. 11 I am a better man because of our relationships. 12 I Please know that Thank you to all the lawyers who have helped me. 13 First of all, to Professor Ramzi Kassem and Lieutenant Theresa 14 Champ. 15 Major Scott Medlyn, Lieutenant Greg Young, Lieutenant Bob 16 Holtz, Sergeant Frank Masella and Roberto Castro, 17 Dr. Katherine Porterfield for her expert assistance, and 18 especially to Ms. Eva, who has been like a mother to me. 19 Also to the other members of my current defense team, For several years I have been blessed to have 20 wonderful teachers guiding me in my education. 21 Mr. Adam for introducing me into the new world of art. 22 taught me to love it and to appreciate it. 23 mind and my heart. I thank He Art now is in my When I paint or create art, it heals me UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 258 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 and makes me free from prison. 2 It brings me comfort and calm. I thank Mr. Zaid who supported me. I thank him for 3 all the hours he spent and all the materials he brought to 4 help me learn math and algebra, and to study for my GED. 5 I thank Mr. Murad for pushing me in physical 6 education. 7 their continued support. 8 9 10 Thank you also to the Guantanamo Bay doctors for You have really helped me. I sincerely thank the ICRC for giving me communication with my family. This has been very precious to me and has given me hope. 11 Thank you to the U.S. agents who dealt with me on a 12 regular basis, Beth Ann, David, Uncle Jim, and Brian and all 13 his team. 14 to me. 15 The many hours we spent together are a good memory To all the prosecutors who have met with me since I 16 began my cooperation, please accept my gratitude for many kind 17 words and encouragements, as well as your stated belief in me. 18 Finally, my hope, I will return to my home in Saudi 19 Arabia, to work and to help my children build a peaceful life 20 and a happy life. 21 a life of education and learning. 22 hope to study behavioral psychology to help others who are 23 dealing with suffering and pain. I am blessed with a new desire to continue I have enjoyed art, and I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 259 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 I have learned that the Saudi rehabilitation center 2 has a program in which successful graduates return to the 3 center to help others by sharing their experiences. 4 participate in this program as soon as I am permitted to do so 5 by the authorities. 6 children and my wife for the rest of my life. 7 8 9 I will Most of all, I just want to be with my Thank you for hearing what I have to say and for your careful thinking about my case and my sentencing. ADC [LCDR YOUNG]: Thank you. Your Honor, the defense has no further 10 evidence to present. 11 copies of Defense Exhibit C and Appellate Exhibit 041, 12 Mr. al Darbi's unsworn statement, to the members. 13 We would request permission to publish MJ [COL WATKINS]: All right. 14 discussion. 15 back during deliberations. 16 them again? 17 We have already had this Those have been published, and copies will go ADC [LCDR YOUNG]: So are you requesting to publish No, Your Honor, I meant requesting 18 permission to provide copies to the bailiff for distribution 19 to the members. 20 21 MJ [COL WATKINS]: All right. We will take care of that during the next recess. 22 ADC [LCDR YOUNG]: Thank you, sir. 23 MJ [COL WATKINS]: Do you rest? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 260 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 ADC [LCDR YOUNG]: Yes, Your Honor, the defense rests. 2 MJ [COL WATKINS]: Trial Counsel, do you have any rebuttal 3 evidence? 4 TC [MR. SCHNEIDER]: 5 MJ [COL WATKINS]: No, we do not, Your Honor. Members of the commission, you have now 6 heard all the evidence. 7 a hearing outside of your presence to go over the instructions 8 that I will give you, and then I have to finalize those 9 instructions. 10 At this time counsel and I will have I think I made a mistake with the court administrator 11 personnel about when we would be ready for lunch. 12 that's being brought to you so that we can minimize further 13 delays. 14 instructions and to have my hearings with counsel. 15 food arrives during that hour, just drive on with lunch and 16 then let the bailiffs know when you are ready to come back in. 17 But I expect to see you in about one hour, and you are 18 excused. 19 [Members withdrew from the courtroom.] 20 I know It will take approximately an hour to complete the If your Thank you very much. MJ [COL WATKINS]: Please be seated. The members are 21 absent. 22 instructions in the Appellate Exhibit 034 series. 23 give standard sentencing instructions with some deviation. Counsel, I have reviewed your submissions of proposed UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 261 I intend to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 I do have a question for defense: In your proposed 2 instructions there were certain Wheeler factors. 3 point to evidence that's been admitted that supports me 4 instructing on those factors? Can you 5 ADC [LCDR YOUNG]: May I have one moment, Your Honor? 6 MJ [COL WATKINS]: Certainly. 7 8 9 [Pause.] MJ [COL WATKINS]: If you would like, we can recess and you can collaborate with your colleagues on that issue and 10 provide something to the court, references to evidence or 11 Wheeler factors that you want instructed on. 12 ADC [LCDR YOUNG]: Thank you, Your Honor. 13 MJ [COL WATKINS]: All right. All right, Counsel. I 14 believe we have discussed this procedurally to an extent. 15 Just to be clear, what I intend to do is recess the court, 16 finalize my instructions, provide hard copies for review by 17 both parties; if necessary, meet to receive any input you have 18 about additions or objections and then come back on the 19 record. 20 And again, I may have created a problem with the 21 lunchtime timeline. 22 on that point. 23 for review within 30 minutes, so if you could be available for We are just going to have to be flexible But I should have proposed instruction to you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 262 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 that. 2 3 4 5 Is there anything else to take up before the commission recesses? TC [MR. SCHNEIDER]: Nothing from the government, Your Honor. 6 CDC [MR. KASSEM]: Nothing from us, Your Honor. 7 MJ [COL WATKINS]: The commission is in recess. 8 [The military commission session recessed at 1131, 13 October 9 2017.] 10 [END OF PAGE] 11 12 13 14 15 16 17 18 19 20 21 22 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 263 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [The R.M.C. 803 session was called to order at 1319, 2 13 October 2017.] 3 MJ [COL WATKINS]: The commission is called to order. 4 parties present when the commission recessed are again 5 present. 6 The members are absent. During the recess I provided counsel with a copy of 7 my instructions for their review. 8 objections regarding those instructions? 9 10 11 12 13 14 15 16 All TC [MR. SCHNEIDER]: Do counsel have any The government has no objection, Your Honor. CDC [MR. KASSEM]: Your Honor, the defense has no objections. MJ [COL WATKINS]: Do counsel have any requests for any special instructions? TC [MR. SCHNEIDER]: No requests from the government, Your Honor. 17 CDC [MR. KASSEM]: None from the defense, Your Honor. 18 MJ [COL WATKINS]: Are we ready for the members? 19 TC [MR. SCHNEIDER]: 20 CDC [MR. KASSEM]: Yes, Your Honor. Yes, we are, Your Honor. 21 [The R.M.C. 803 session terminated, the members entered the 22 courtroom, and the Military Commission was called to order at 23 1320, 13 October 2017.] UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 264 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 MJ [COL WATKINS]: 2 called to order. 3 present. 4 5 Please be seated. The commission is All parties, to include the members, are Trial Counsel, you may present argument. ATC [Capt HRACHO]: 6 Thank you, Your Honor. As a member of al Qaeda, the accused committed 7 several war crimes when he took actions that facilitated the 8 bombing of the Merchant Vessel Limburg, a civilian oil tanker, 9 that resulted in the death of one civilian and injury to 12 10 others. 11 After balancing the aggravating evidence in this case 12 with the mitigation evidence, the government is joining the 13 defense in recommending that you sentence the accused to 13 14 years' confinement. 15 On the morning of 6 October 2002, the MV Limburg is 16 off the coast of Yemen when a small boat filled with 17 explosives is deliberately steered by al Qaeda terrorists into 18 the side of the Limburg, fulfilling the aims, the terrible 19 aims of a longstanding al Qaeda plot. 20 detonate these explosives as it rams into the side of the 21 Limburg. 22 23 The men on board The explosion is so powerful that it shakes the civilian crew members on board and rips a huge hole in the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 265 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 side of the tanker as approximately 60,000 tons of crude oil 2 starts spilling into the water. 3 explosion starts to make its way up to the deck as more 4 explosions could be heard throughout the tanker. 5 Dark, thick smoke from the One crewmember later described the smoke as so thick 6 that it was like nighttime on the tanker, while another 7 described the scene as, quote, the whole ship was all on fire 8 and smoke. 9 It was like hell, end quote. Many members of the crew, including a man named 10 Atanas Atanasov, attempted valiantly to put out the fire and 11 to keep the ship afloat, but this fire cannot be contained. 12 And concern that the smoke and the flames are soon going to 13 overwhelm them, members of the crew start to abandon ship. 14 And the circumstances are so dire that the members start 15 leaping the 80 feet or so from the deck down into the water, 16 some sustaining injuries like broken arms and broken ribs. 17 And while most were able to avoid the fire that had 18 now developed in the water from the oil that had spilled, one 19 man did not survive, a Bulgarian citizen, Atanas Atanasov, the 20 same man that many on the crew had seen fighting the fire in 21 the moments after the explosion. 22 was found floating in the water a few days after the attack. 23 His lifeless, burned body Atanas woke up that day, just like the other members UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 266 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 of the crew, to go to work on the Limburg, a nonlegitimate 2 military target; now he is dead at the hands of terrorists. 3 He was 38 years old. 4 He is survived by his grieving family. Now, as you read in the stipulation of fact, Usama 5 bin Laden and al Qaeda took credit for this terrorist attack 6 on the MV Limburg. 7 stipulation of fact is that operations like these take more 8 than just a few al Qaeda terrorists that are willing to commit 9 suicide to be successful. And what you also learned in the They take leaders to plan and 10 execute these complex operations to be successful, leaders 11 like the accused, who worked diligently with the mastermind of 12 the USS COLE bombing, Abd al Nashiri, to accomplish this 13 nefarious and cowardly attack, an attack on a nonlegitimate 14 military target that was occupied by civilians. 15 And while the accused was in custody a few months 16 prior to the attack actually taking place, the accused took a 17 number of actions to ensure the successful completion of the 18 attack on the Limburg, including providing or obtaining visas 19 for the terrorists that actually took part in the attack, 20 providing them housing, purchasing equipment. 21 It was because of these actions and other actions 22 that the accused took as part of other operations in the 23 Persian Gulf that the accused was charged with and ultimately UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 267 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 pled guilty to six war crimes, including terrorism, attempted 2 terrorism, attacking civilians, attacking civilian objects, 3 hazarding a vessel and attempted hazarding a vessel. 4 The accused is a war criminal and he must be punished 5 for his actions, actions that led to the death of Atanas and 6 injury to 12 others on the Limburg that day. 7 that is why you are here. 8 accused for his war crimes. And, Members, You are here to sentence the 9 As you recall from the military judge's preliminary 10 instructions, Judge Watkins told you and will tell you again 11 that your duty today is, quote, a grave responsibility 12 requiring the exercise of wise discretion, end quote. 13 duty as a member to adjudge an appropriate sentence is 14 indispensable in our military commission system. 15 Your Now, the judge is going to instruct you that the 16 accused must be sentenced to a period of confinement between 17 13 years and 15 years, and he is also going to instruct you 18 that the accused will not receive day-for-day credit for the 19 time that he was in custody prior to his trial. 20 sentence that you adjudge today will be in addition to the 21 time that he was in custody prior to his trial. 22 23 So the With that said, after balancing the aggravating evidence with the mitigation evidence in this case, what we UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 268 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 are going to talk about now, the government is joining the 2 defense in recommending the minimum sentence in this case, 3 which is 13 years' confinement. 4 So what is the mitigation in this case? I want to 5 highlight a few items from the mitigation in this case to you. 6 The first is that the accused has spent, has been in custody 7 since 2002. 8 unsworn, to reflect on his crimes, as well as to abandon the 9 radical belief system that he was once a part of. 10 So he has had a lot of time, like he said in his In fact, during that time since 2002, but especially 11 in the last three years, the accused has cooperated 12 extensively with the United States Government in providing 13 information about other al Qaeda members, including providing 14 sworn deposition testimony against two other al Qaeda leaders 15 in their military commission cases: 16 role in the USS COLE and MV Limburg bombings, as well as Hadi 17 al-Iraqi, the former commander in Afghanistan when he was 18 fighting against the Northern Alliance. 19 Abd al Nashiri for his In these depositions, which lasted over the period of 20 a few weeks, the accused told the truth, and his testimony in 21 those depositions will be valuable to the prosecution in those 22 military commission cases; and for that the accused deserves 23 credit and is a major factor for why the government is UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 269 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 recommending the minimum sentence in this case of 13 years' 2 confinement. 3 So in addition to the aggravating evidence in this 4 case, you should also consider the mitigation evidence when 5 deciding on the accused's sentence in this case. 6 Members, in a few moments -- before I get to that, 7 one more mitigation factor that I want to talk about is the 8 fact that the accused pled guilty. 9 offenses that the government alleged against him. He admitted to all the And as the 10 military judge will instruct you, by doing so he has saved the 11 government time, effort and expense. 12 credit. 13 For that he deserves Members, in a few moments you are going to go back 14 into the deliberation room and you are going to decide on an 15 appropriate sentence for the accused. 16 war criminal, took actions that led to the death of one 17 civilian and injuries to 12 others, when balanced with the 18 extensive mitigation in this case, the government joins the 19 defense in recommending to you that you sentence the accused 20 to 13 years' confinement. 21 22 23 MJ [COL WATKINS]: While the accused is a Thank you. Defense Counsel, you may present argument. CDC [MR. KASSEM]: Your Honor, may I have a moment to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 270 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 confer? MJ [COL WATKINS]: Certainly. [Pause.] CDC [MR. KASSEM]: Members of the Commission, good 5 afternoon. 6 the City University of New York. 7 Ahmed al Darbi since 2008. 8 your attention to the arguments I respectfully present to you 9 today. 10 My name is Ramzi Kassem. I am a law professor at I have represented I am grateful for your time and As the military judge presiding in this case 11 explained to you earlier, the question before you is not 12 whether Mr. al Darbi is guilty. 13 nearly four years ago, in 2014, when Mr. al Darbi pled guilty 14 and accepted responsibility for his actions. 15 That question was answered The only question before you is what the appropriate 16 sentence should be in this case. 17 is proper and fair, you will naturally weigh two main 18 considerations. 19 in the events at issue. 20 that Judge Watkins will instruct you about shortly. 21 will also look carefully at how he has accepted responsibility 22 and atoned for his actions. 23 and extenuation that you will hear about from the military To determine what sentence You will want to examine Mr. al Darbi's role Those are the facts in aggravation And you Those are the facts in mitigation UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 271 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 judge. 2 information, will you be able to say what a fair sentence 3 might be for Mr. al Darbi. 4 Only then, after you weigh and analyze that So let me address the first point, the exact role 5 that Mr. al Darbi played. 6 Mr. al Darbi, nor would it be in the interests of justice, if 7 Mr. al Darbi were ascribed a lesser or a greater role than the 8 one he actually played during the events in question. 9 why the military judge will instruct you that Mr. al Darbi is It would not be fair to This is 10 to be sentenced only for the offenses of which he has been 11 found guilty. 12 There are many world events mentioned in the evidence 13 we have asked you to review during our last recess yesterday, 14 the longer recess: 15 and Tanzania; the bombing of the USS COLE; and the attacks of 16 September 11th, 2001. 17 confusion, I remind you that Mr. al Darbi had no prior 18 knowledge of these events and that he played no role in those 19 plots. 20 foreknowledge of or playing a role in those plots. 21 The 1998 U.S. Embassy bombings in Kenya To avoid even the smallest risk of The U.S. Government had never accused him of having In your packets you will have seen a sheet listing 22 the five charges actually brought by the U.S. Government, the 23 charges to which Mr. al Darbi pled guilty in 2014. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 272 The first UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 four charges, as you have heard, are related to Mr. al Darbi's 2 role in the events leading up to an attack on a French oil 3 tanker, the MV Limburg, off the coast of Yemen which resulted 4 in the tragic death of one Bulgarian sailor, Mr. Atanas 5 Atanasov. 6 That attack took place on October 6, 2002, four 7 months after Mr. al Darbi was arrested in June of 2002. 8 the exhibits that you read during your long recess yesterday 9 was Prosecution Exhibit 001, a stipulation of fact signed by Among 10 the U.S. Government and Mr. al Darbi back in October 2013, and 11 it sets out undisputed facts. 12 The military judge will instruct you that this and 13 any other stipulation of fact you see in this case contain 14 undisputed facts in evidence. 15 state at their beginning, these are facts that are accepted as 16 true by both the U.S. Government and Mr. al Darbi. 17 As the stipulations themselves As you consider Mr. al Darbi's role, you should note 18 that he is not charged with carrying out the attacks on the 19 Limburg directly. 20 because he was already in custody roughly four months before 21 the attack on the Limburg occurred. 22 23 He couldn't have been. Why? Simply It is important that you understand that he was not a direct perpetrator of any attacks himself. Again, Prosecution UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 273 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Exhibit 001, the 2013 stipulation of undisputed facts, lays 2 out Mr. al Darbi's acts in detail. 3 that while he, quote, assisted in the attack, he did not 4 himself perform the substantive offense, did not know its 5 details and was not even present for the attack, end quote. 6 That's paragraph 19 of the 2013 stipulation. 7 It states at paragraph 19 The fifth charge to which Mr. al Darbi pled guilty 8 pertains to an attempted plot to attack oil tankers in the 9 Strait of Hormuz. That plot remained just that, a plot. As 10 the 2013 stipulation of undisputed facts makes clear, the plot 11 was canceled and never came to fruition. 12 not accused of being the mastermind of that plot or, for that 13 matter, any other ones. 14 nothing more and, equally importantly, nothing less. 15 And Mr. al Darbi was So this was Mr. al Darbi's role, These are serious offenses. No one here today denies 16 that, least of all Mr. al Darbi. 17 to consider just how much Mr. al Darbi contributed to those 18 events. 19 But again, it is only fair The military judge will instruct you to treat those 20 offenses as a single offense and to determine one sentence for 21 that single offense. 22 consideration that will come up for you during your 23 deliberations shortly: So this brings us to the next Has Mr. al Darbi accepted UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 274 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 responsibility for his actions? 2 is a single word, and that word is yes. 3 The answer to that question Yes, Mr. al Darbi has made himself accountable for 4 all his actions. 5 signed the stipulation of fact that you have seen. 6 responsibility in 2014 when he pled guilty to all of these 7 charges. 8 his first, his only opportunity to tell his side of the facts 9 to a jury. He took responsibility in 2013 when he And he took responsibility again today. He took Today was He has been waiting for this chance for many 10 years, his one chance, after more than 15 years in custody, to 11 finally speak on his own behalf. 12 but he didn't. 13 was remorseful and he wishes he could change the past. 14 He could have made excuses, He stood up here before you and told you he During your deliberations, I respectfully request 15 that you pay close attention to Defense Exhibit A, the 16 stipulation of facts signed this year, in 2017, by the 17 U.S. Government and Mr. al Darbi. 18 that it is an undisputed and true fact in evidence that 19 Mr. al Darbi has firmly rejected violence and extremist 20 ideology, and that he hasn't wavered in that regard during 21 frequent meetings with government representatives since 2014. 22 23 That document tells you The government agrees that he has even repeatedly requested to be separated from detainees who espouse UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 275 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 extremists views, all the while counseling others in the 2 prison, other prisoners, to abstain from disruptive behavior. 3 Mr. al Darbi has owned up to his actions, he has renounced 4 what drove him to those actions, and he has done that fully, 5 unreservedly and unequivocally. 6 But Mr. al Darbi has gone well beyond the acceptance 7 and expression of guilt and the renunciation of past ways. 8 Again I ask you to please pay strict attention to the 9 stipulation of true facts in evidence that are before you. In 10 them you will see that Mr. al Darbi was arrested in June 2002; 11 that he was subsequently taken into U.S. custody; and that 12 shortly after his arrest, by August of 2002, he was already 13 cooperating with U.S. agents. 14 You now know that Mr. al Darbi warned the 15 U.S. Government about the plot to bomb a commercial oil tanker 16 or a cargo ship off the coast of Yemen before the attack on 17 the Limburg occurred. 18 today's date, October 13, 2017. 19 That is in Defense Exhibit C bearing He told U.S. Government agents what he knew about the 20 means to be employed in that attack, a small boat containing 21 explosives. 22 if he couldn't identify the specific target, the MV Limburg 23 ultimately. He told the agents about the type of target, even He told them about the planned site of the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 276 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 attack, even if he didn't know its date and time. 2 them about the goal, which was to disrupt sea traffic. 3 even provided our government with identifying information and 4 physical descriptions of the members of the cell planning the 5 attack. 6 And he told He And Mr. al Darbi provided all this information on 7 August 12, 2002, that is to say, almost two months before the 8 attack on the Limburg occurred in October of 2002. 9 The U.S. Government attests that the information he 10 provided, beginning in August 2002, quote, proved very 11 valuable to ongoing U.S. operations against al Qaeda, end 12 quote. 13 of this or any other military commission to read the 14 voluminous reports reflecting the extent of Mr. al Darbi's 15 cooperation over the years, both the U.S. Government and 16 Mr. al Darbi offer you a vivid and concrete picture in Defense 17 Exhibit A and in Defense Exhibit C of the breadth and depth of 18 the cooperation and assistance Mr. al Darbi has provided to 19 our country. 20 While it would be unrealistic to require the members In the 15 long years he has spent in U.S. custody so 21 far, that's roughly 5,500 days, Mr. al Darbi sat down for 22 substantive interviews and other interactions with U.S. law 23 enforcement agents 564 times, for an estimated total of 798 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 277 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 hours. 2 agents approximately every nine days for the last 15 years. 3 Additionally, in the last four years, Mr. al Darbi That converts to one meeting with U.S. Government 4 submitted to 36 interviews to help prosecutors and 5 investigators with other military commission cases. 6 additional total of approximately 187 hours. 7 refused their requests, and each time he provided truthful and 8 complete answers. 9 That's an Not once has he As the prosecutors and investigators in those cases 10 would be the first to tell you, and as the trial counsel 11 representing the government who spoke to you before me in fact 12 told you most recently, right here in this courtroom, 13 Mr. al Darbi did what no other Guantanamo detainee has done 14 before; he provided a total of six days of testimony in two 15 other military commission cases, both of which are important 16 to our government. 17 Mr. al Darbi testified as a government witness in the 18 capital case brought against Abd al Rahim al Nashiri who is 19 accused of orchestrating the USS COLE bombing in 2000. 20 second important case is against Abu Hadi al-Iraqi who is 21 accused of overseeing attacks on coalition forces in 22 Afghanistan. 23 continued assistance moving forward. The And the government will rely on Mr. al Darbi's He is scheduled to UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 278 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 provide 12 to 16 days of additional testimony in those two 2 cases. 3 The government has already told you how much they 4 value Mr. al Darbi's testimony. 5 the 2017 stipulation of fact which you have as Defense Exhibit 6 A. 7 is a true fact: 8 Mr. al Darbi's testimony was unprecedented in similar 9 counterterrorism prosecutions to date. 10 Allow me to read to you from The government agrees with Mr. al Darbi that the following Quote, the level of detail and breadth of Remember, these are not my words alone. I don't get 11 to tell you if someone's testimony is valuable or 12 unprecedented for the U.S. Government. 13 conclusion of the U.S. Government. 14 I agree with the assessment, but the assessment is shared by 15 the United States. 16 evidence that, compared to witnesses and cooperators who have 17 testified for the U.S. Government in all other prosecutions, 18 in all other terrorism prosecutions to date, Mr. al Darbi's 19 testimony remains, quote, unprecedented. 20 This is also the As Mr. al Darbi's lawyer, The government accepts as a true fact in And I want to emphasize to the members of this 21 commission that Mr. al Darbi will continue to provide what the 22 government describes as full, valuable, complete and truthful 23 cooperation and testimony in public view in spite of any risk UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 279 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 to himself and to his family. 2 the thought of harm coming to his family causes him great 3 concern and leaves him feeling helpless as a husband and as a 4 father. 5 As I am sure you understand, Sitting here in his prison cell at Guantanamo, he is 6 not in a position to protect his wife and their two children 7 who are on the other side of the world from possible 8 retaliation for his cooperation here in this room and beyond, 9 but Mr. al Darbi agreed to cooperate with the government, and 10 11 he intends to continue to do so. This brings us to the ultimate question: In light of 12 all the information provided to you, what is a fair sentence 13 for Mr. al Darbi? 14 shortly on the full range of punishment, including the minimum 15 and the maximum punishments allowable. 16 Again, the military judge will instruct you The sentence you consider for Mr. al Darbi must fall 17 within that range. 18 will look at Mr. al Darbi as a whole person, at his wrongs as 19 well as his acknowledgement of his role and his continued 20 assistance to make up for those harms. 21 In your deliberations, I am confident you The day of sentencing is the day of judgment for 22 Mr. al Darbi, and I respectfully ask you to consider the 23 totality of his actions. In other words, do not limit your UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 280 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 focus to what he did when he was a young, misguided and free 2 man, but also consider what he has done in the 15 years since 3 that time. 4 Mr. al Darbi has owned up to his actions. He has 5 accepted full responsibility for them. 6 Just look at what he has done over the last 15 years. 7 spent the last 15 years in U.S. custody cooperating with the 8 government, providing very valuable, indeed unprecedented 9 information and testimony. He is truly sorry. He has The United States has relied and 10 is still relying on his information and testimony in its 11 counterterrorism operations and cases. 12 When Mr. al Darbi addressed the members of this 13 commission earlier, you heard his voice. 14 demeanor. 15 his past wrongdoings that he cannot undo. 16 best thing. 17 You saw his You could see and hear the deep regret he has for So he did the next He tried to do good. What you see today is a man who has learned some very 18 difficult lessons in one of the most difficult of prisons. 19 Ahmed does not ask for the years of his life that he lost. 20 knows that he is only responsible for that lost time because 21 it was lost as a result of the choices that he made when he 22 was younger, younger and misguided, I would add. 23 His father died without his son next to him while UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 281 He UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 Ahmed sat here in his cell at Guantanamo. 2 remain with Ahmed for the rest of his life. 3 father again. 4 as he remains at Guantanamo, his wife, Muna, ages without her 5 husband by her side and their two kids, Fatimah and Mohammed, 6 without him, without their father. 7 his sons in his arms is a form of suffering that we can all 8 understand. 9 suffering for 15 years already. 10 That pain will He won't see his He also knows that with each year that goes by That Ahmed has never held And in that way and many others, Ahmed has been Ahmed takes very seriously his duty to make up for 11 his past wrongs. 12 actions and is trying to make up for them. 13 number of times my colleagues, Major Medlyn and Lieutenant 14 Commander Young and I sat in meetings with prosecutors and 15 investigators where Ahmed meticulously explained certain 16 facts, making sure to correct and clarify where necessary. 17 was clear to me and my colleagues in those meetings that Ahmed 18 wants to get it right. 19 He has renounced his past ideology and his I can't count the It Indeed, everything from his rejection of the ideology 20 he espoused when he was younger to his constructive role in 21 counseling other prisoners, to the warm rapport he has built 22 with guards, agents, and prosecutors, to his enthusiastic 23 pursuit of education and art, everything shows that Ahmed is a UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 282 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 changed man and that he is now on the right path. 2 is irreversible because Ahmed made sure to shut that 3 proverbial door once and for all by renouncing his past ways 4 and cooperating with the U.S. government as publicly as he 5 has. 6 The change Ahmed sits here before you today as an older, wiser, 7 more thoughtful man than he was when he was first brought to 8 Cuba almost 15 years ago. 9 has found peace, gratitude and, as you heard, even forgiveness 10 Through much painful reflection, he for those who mistreated him in U.S. custody. 11 Before I got up here to talk to you, trial counsel 12 speaking for the U.S. Government preceded me. 13 you the considered recommendation of the U.S. Government that 14 Mr. al Darbi should receive the minimum sentence of 13 years. 15 Why? 16 Mr. al Darbi has provided to the United States. 17 He shared with Because our government recognizes the service that The government also recognizes that cooperation sheds 18 light on the character of someone in Mr. al Darbi's position. 19 It shows that he appreciates now the full implication of the 20 choices he made in the past. 21 clean and full break with that past and to change his life in 22 a significant way. 23 done just that. It shows he decided to make a There is no doubt that Mr. al Darbi has UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 283 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 The government is correct. A fair balancing of all 2 of the facts in this case should lead you to impose a sentence 3 of 13 years and not a day more. 4 only just resolution of this case, because it allows you to 5 hold Mr. al Darbi responsible for his wrongdoing, on the one 6 hand, while probably -- while properly recognizing his 7 consistent and, quote, unprecedented cooperation, on the other 8 hand. 9 A sentence of 13 years is the Even with that minimum sentence recommended by both 10 the government and the defense, Mr. al Darbi will have spent a 11 total of 24 years in captivity, almost a quarter of a century, 12 by the time he is free. 13 than 13 years for the man who became a witness for the United 14 States against al Qaeda and who provided unprecedented 15 testimony would surely discourage other individuals from 16 following in Mr. al Darbi's footsteps. 17 Equally important, a sentence longer In this way, a sentence of 13 years would not only be 18 fair to Mr. al Darbi and respect the U.S. Government's 19 recommendation, it would also promote the public good. 20 following Mr. al Darbi's case would see for themselves that 21 the United States can be trusted to treat fairly and justly 22 those who cooperate and redeem themselves. 23 Those To conclude, I join the government in asking the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 284 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 members of this commission to find that Mr. al Darbi should 2 receive a sentence of 13 years and not a day more. 3 that both the government and the defense in a case like this 4 one agree to jointly recommend a sentence. 5 It is rare I urge you to follow our joint recommendation because 6 the man who submits to your judgment here today has proven 7 through word and deed that he has changed. 8 follow our recommendation because it is the right thing to do. 9 Thank you for your time and for your service. 10 MJ [COL WATKINS]: I urge you to Members of the Commission, you are 11 about to deliberate and vote on the sentence in this case. 12 Some of you have taken notes during these proceedings. 13 advise you that you will receive a copy of my instructions, so 14 while you may take notes, it's not necessary for this session. 15 I It is the duty of each member to vote for a proper 16 sentence for the offenses of which the accused has been found 17 guilty. 18 grave responsibility requiring the exercise of wise 19 discretion. 20 Your determination of the amount of punishment is a Although you must give due consideration to all 21 matters in mitigation and extenuation, as well as to those in 22 aggravation, you must bear in mind that the accused is to be 23 sentenced only for the offenses of which he has been found UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 285 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 guilty. The parties have agreed that the offenses charged in 3 this case are one offense for sentencing purposes. 4 in determining an appropriate sentence in this case, you must 5 consider them as one offense. 6 Therefore, You must not adjudge an excessive sentence in 7 reliance upon possible mitigating action by the convening or 8 higher authority. 9 The minimum permissible punishment that may be 10 adjudged in this case is confinement for 13 years. 11 maximum permissible punishment that may be adjudged in this 12 case is confinement for 15 years. 13 ceiling on your discretion. 14 any lesser legal sentence within the range I have given you. 15 The The maximum punishment is a You are at liberty to arrive at There are several matters that you should consider in 16 determining an appropriate sentence. 17 society recognizes certain principal reasons for the sentence 18 of those who violate the law. Bear in mind that our They are: 19 (1) rehabilitation of the wrongdoer; 20 (2) punishment of the wrongdoer; 21 (3) protection of society from the wrongdoer; and 22 (4) deterrence of the wrongdoer and those who know of 23 his crimes and his sentence from committing the same or UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 286 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 similar offenses. 2 The weight to be given any or all of these reasons, 3 along with all other sentencing matters in this case, rests 4 solely within your discretion. 5 As I have already indicated, this commission may 6 sentence the accused to confinement for no more than 15 years 7 and no less than 13 years. 8 be adjudged in either full days, full months or full years; 9 fractions such as one-half or one-third should not be 10 11 A sentence to confinement should deployed. So, for example, if you do adjudge confinement for 13 12 years and one-half month, it should instead be expressed as 13 confinement for 13 years, 15 days. 14 taken as a suggestion, only as an illustration of how to 15 properly announce your sentence. 16 This example should not be In selecting a sentence, you should consider all 17 matters in extenuation and mitigation, as well as those in 18 aggravation. 19 You should consider evidence admitted as to the 20 nature of the offenses of which the accused stands convicted, 21 plus the accused's age; the duration of the accused's time in 22 custody -- and I will give you further instructions on this in 23 a moment; the accused's unsworn testimony; the extent and UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 287 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 value of the accused's cooperation with law enforcement and 2 prosecutors; the accused's good behavior while in custody; and 3 the extent of the accused's participation in and contribution 4 to the completed offenses. 5 Further, you should consider the nature of the weapon 6 used in the commission of the crime, the nature and extent of 7 injuries suffered by the victims, and the periods of 8 hospitalization and convalescence required for the victims. 9 Under the law, the commission may not give the 10 accused credit for his time spent in custody before trial; 11 that is, you may not deduct this time served in custody from 12 the sentence you would otherwise have awarded and thus award a 13 sentence less than the minimum sentence of 13 years' 14 confinement. 15 However, you may consider this period of custody, 16 both as a matter in mitigation and as it bears upon the 17 accused's rehabilitation when determining an appropriate 18 sentence within the prescribed range. 19 significance to be attached to the accused's period of custody 20 prior to trial rests within the sound discretion of each 21 member. 22 23 The weight and The commission will not draw any adverse inference from the fact that the accused has elected to make a statement UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 288 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 that is not under oath. 2 means for an accused to bring information to the attention of 3 the commission and must be given appropriate consideration. 4 The accused cannot be cross-examined by the prosecution or 5 interrogated by commission members or me upon an unsworn 6 statement, but the prosecution may offer evidence to rebut 7 statements of fact contained in it. 8 9 An unsworn statement is an authorized The weight and significance to be attached to an unsworn statement rests within the sound discretion of each 10 commission member. 11 under oath, its inherent probability or improbability, whether 12 it is supported or contradicted by evidence in the case, as 13 well as any other matter that may have a bearing upon its 14 credibility. 15 expected to use your common sense and your knowledge of human 16 nature and the ways of the world. 17 You may consider that the statement is not In weighing an unsworn statement, you are A plea of guilty is a matter in mitigation which must 18 be considered along with all other facts and circumstances of 19 the case. 20 been saved by a plea of guilty. 21 steps towards rehabilitation. 22 23 Time, effort, and expense to the government have Such a plea may be the first The parties to this trial have stipulated or agreed to facts in Prosecution Exhibit 001 and Defense Exhibits A and UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 289 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 C. 2 accused, stipulate and agree to a fact, the parties are bound 3 by the stipulation, and the stipulated matters are facts in 4 evidence to be considered by you along with all the other 5 evidence in the case. When counsel for both sides, with the consent of the 6 When you close to deliberate and vote, only the 7 members will be present. 8 remain together in the deliberation room during deliberations. 9 I also remind you that you may not allow any I remind you that you all must 10 unauthorized intrusion into your deliberations. 11 make communications to or receive communications from anyone 12 outside the deliberation room, by telephone or otherwise. 13 Should you need to take a recess or have a question, or when 14 you have reached a decision, you may notify the bailiff, who 15 will then notify me of your desire to return to open session 16 to make your desires or decision known. 17 You may not Your deliberations should begin with the full and 18 free discussion on the subject of sentencing. 19 of superiority in rank shall not be employed in any manner to 20 control the independence of members in the exercise of their 21 judgment. 22 23 The influence When you have completed your discussion, then any member who desires to do so may propose a sentence within the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 290 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 range of authorized punishment upon which you have been 2 instructed. 3 complete sentence. 4 sentences and submits them to the president, who will arrange 5 them in the order of their severity. 6 You do that by writing out on a slip of paper a The junior member collects the proposed You then vote on the proposed sentences by secret 7 written ballot. 8 each proposed sentence, beginning with the lightest, until you 9 arrive at the required concurrence, which is three-fourths, or 10 11 All must vote; you may not abstain. Vote on six members. The junior member will collect and count the votes. 12 The count is then checked by the president who shall announce 13 the result of the ballot to the members. 14 If you vote on all of the proposed sentences without 15 arriving at the required concurrence, you will then repeat the 16 process of discussion, proposal of sentences, and voting. 17 once a proposal has been agreed to by the required 18 concurrence, then that is your sentence. 19 But You may reconsider your sentence at any time prior to 20 its being announced in open session. 21 your sentence, any member suggests you reconsider the 22 sentence, open the commission and the president should 23 announce that reconsideration has been proposed without If, after you determine UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 291 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 reference to whether the proposed reballot concerns increasing 2 or decreasing the sentence. 3 instructions on the procedure for reconsideration. 4 I will then give you specific As an aid in putting the sentence in proper form, the 5 commission will use the sentence worksheet marked Appellate 6 Exhibit 040, which the bailiff may now hand to the president. 7 Extreme care should be exercised in using this 8 worksheet and in selecting the sentence form which properly 9 reflects the sentence of the commission. If you have any 10 questions concerning sentencing matters, you should request 11 further instructions in open session in the presence of all 12 parties to the trial. 13 In this connection, you are again reminded that you 14 may not consult the Manual for Military Commissions, Manual 15 for Courts-Martial or any other publication or writing not 16 properly admitted or received during this trial. 17 These instructions must not be interpreted as 18 indicating an opinion as to the sentence that should be 19 adjudged, for you alone are responsible for determining an 20 appropriate sentence in this case. 21 determination, you should select a sentence which will best 22 serve the needs of the accused and the welfare of society. 23 In arriving at your When the commission has determined a sentence, the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 292 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 inapplicable portions of the sentence worksheet should be 2 lined through. 3 the sentence worksheet. 4 sentence. 5 6 7 8 When the commission returns, I will examine The president will then announce the Do counsel object to the instructions as given or request other instructions? TC [MR. SCHNEIDER]: No objection from the government, Your Honor. 9 CDC [MR. KASSEM]: None from the defense, Your Honor. 10 MJ [COL WATKINS]: Thank you. 11 12 13 Does any member of the commission have any questions? Apparently not. Mr. President, if you desire a recess during your 14 deliberations, we must formally reconvene the commission and 15 then recess. 16 recess before you begin deliberations, or would you like to 17 begin immediately? Knowing this, do you desire to take a brief 18 PRES: 19 MJ [COL WATKINS]: We would like to begin immediately, Your Honor. Members, please confirm that you were 20 provided copies of Prosecution Exhibits 001 through 022, 21 Defense Exhibits A and C, and Appellate Exhibit 041. 22 PRES: 23 MJ [COL WATKINS]: Your Honor, could you describe 041 for me, please? Yes. Appellate Exhibit 041 is a UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 293 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 written copy of the accused's unsworn statement. 2 that? 3 Do you have So, Members, you have looked at the other evidence so 4 far. 5 accused presented in open court, and you may consider that in 6 determining an appropriate sentence. Appellate Exhibit 041 is a written copy of what the 7 The bailiff will now present to the president 8 Appellate Exhibit 043, which is a written copy of the verbal 9 instructions I just gave you. 10 Mr. President, please do not mark on any of the 11 exhibits except the sentence worksheet, and please bring all 12 the exhibits with you when you return to announce the 13 sentence. 14 15 16 The commission is closed. [The military commission closed at 1409 October 2017.] [END OF PAGE] 17 18 19 20 21 22 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 294 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [The R.M.C. 803 session was called to order at 1409, 2 13 October 2017.] 3 MJ [COL WATKINS]: Please be seated. All parties present 4 when the commission closed remain present, with the exception 5 of the members, who are in deliberations. 6 7 While the deliberations are ongoing, I will address Mr. al Darbi's post-trial appellate rights. 8 9 Defense, have you advised the accused orally and in writing of his post-trial appellate rights? 10 CDC [MR. KASSEM]: We have, Your Honor. 11 MJ [COL WATKINS]: May I have Appellate Exhibit 042, 12 13 please? ADC [LCDR YOUNG]: Your Honor, the Post-Trial and 14 Appellate Rights Form, if that's what you are referring to, 15 has not been marked yet; Mr. al Darbi has not signed it. 16 will review it with him and have him sign it during the next 17 recess, if that's acceptable. 18 MJ [COL WATKINS]: I guess that will have to be. We I was 19 prepared to cover those rights now; but if it's not signed, I 20 want him to carefully review those again with counsel. 21 22 23 So the commission is in recess. [The R.M.C. 803 session recessed at 1410, 13 October 2017.] [END OF PAGE] UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 295 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 [The military commission session was opened at 1503, 2 13 October 2017.] 3 MJ [COL WATKINS]: The commission is called to order. 4 parties, to include the commission members, are present as 5 before. 6 Mr. President, have you reached a sentence? 7 PRES: 8 MJ [COL WATKINS]: 9 Yes, Your Honor. Is the sentence reflected on the sentence worksheet? 10 PRES: 11 MJ [COL WATKINS]: Yes, Your Honor. Mr. President, please fold that 12 worksheet in half and give it to the bailiff so that I may 13 examine it. 14 I've reviewed the sentence worksheet, and it appears 15 to be in the proper form. 16 president. 17 18 Mr. President, please announce the sentence. PRES: 20 MJ [COL WATKINS]: 22 23 Bailiff, please return this to the Defense Counsel and Accused, please rise. 19 21 All Shall I stand, Your Honor? That's fine, just be mindful of where your microphone is so that we can hear you. PRES: Mr. Ahmed Mohammed Ahmed Haza al Darbi, this military commission sentences you to be confined for 13 years. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 296 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 MJ [COL WATKINS]: Please be seated. Bailiff, please retrieve all the exhibits from the members. 3 Members of the Commission, before I excuse you, let 4 me advise you of one matter. 5 service on this military commission, I remind you of the oath 6 that you took. 7 discussing your deliberations with anyone, to include stating 8 any member's opinion or vote, unless ordered to do so by a 9 court. If you are asked about your Essentially that oath prevents you from You may, of course, discuss your personal observations 10 in the courtroom and the process of how a military commission 11 functions, but not what was discussed during your 12 deliberations. 13 If you still have any notes or other documents from 14 these proceedings, please leave them in place at your table. 15 Thank you very much for your attendance, your patience and 16 your service in this commission. 17 18 19 20 21 You are excused. Counsel and accused will remain. [Members withdrew from the courtroom.] MJ [COL WATKINS]: Please be seated. withdrawn from the courtroom. The members have All other parties are present. Mr. al Darbi, we are now going to discuss the 22 operation of your pretrial agreement on the sentence of the 23 commission. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 297 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 In accordance with the pretrial agreement, the 2 accused will not be credited for time in law of war detention 3 prior to his guilty pleas. 4 counsel? 5 6 7 8 9 TC [MR. SCHNEIDER]: Is that your understanding, That's the understanding of the government, Your Honor. CDC [MR. KASSEM]: Yes, Your Honor, that is our understanding as well for the defense. MJ [COL WATKINS]: My understanding of the effect of the 10 pretrial agreement on the sentence is that the convening 11 authority may approve the sentence as adjudged. 12 with that interpretation? 13 14 TC [MR. SCHNEIDER]: Do you agree The government agrees with that, Your Honor. 15 CDC [MR. KASSEM]: The defense agrees, Your Honor. 16 MJ [COL WATKINS]: And, Mr. al Darbi, do you agree with 17 that interpretation? 18 ACC [MR. AL DARBI]: 19 MJ [COL WATKINS]: [Speaking in English] Yes, sir. Mr. al Darbi, your pretrial agreement 20 also directs that any sentence of confinement approved by the 21 convening authority will run from the date your plea of guilty 22 was accepted by the commission, which was 20 February 2014. 23 Do you agree with that interpretation? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 298 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 3 4 ACC [MR. AL DARBI]: [Speaking in English] Yes, Your Honor. MJ [COL WATKINS]: Do counsel also agree with that interpretation? 5 TC [MR. SCHNEIDER]: 6 CDC [MR. KASSEM]: The defense agrees, Your Honor. 7 MJ [COL WATKINS]: Mr. al Darbi, in your pretrial The government agrees, Your Honor. 8 agreement you have offered to testify truthfully as to the 9 facts and circumstances as you know them in the trials of 10 United States v. Nashiri and United States v. Hadi. 11 are called as a witness in those cases and either refuse to 12 testify or testify untruthfully, the convening authority will 13 no longer be bound by the sentence limitations or any of the 14 other provisions contained in Appellate Exhibit 010. 15 understand that? 16 17 18 19 ACC [MR. AL DARBI]: [Speaking in English] Do you Yes, I do, Your Honor. MJ [COL WATKINS]: Do counsel also agree with that interpretation? 20 TC [MR. SCHNEIDER]: 21 CDC [MR. KASSEM]: Yes, Your Honor. 22 MJ [COL WATKINS]: All right. 23 If you Yes, Your Honor. I would like to cover the accused's post-trial and appellate rights at this time. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 299 I UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 have been provided by the court reporter with Appellate 2 Exhibit 042, which is a written Military Commission Post-Trial 3 and Appellate Rights Advice form. 4 Mr. al Darbi? 5 6 7 ACC [MR. AL DARBI]: Do you have a copy of this, [Speaking in English] Yes, Your Honor. MJ [COL WATKINS]: I see several sets of the initials AD, 8 and I see a signature above your signature block. 9 your initials and your signature? 10 11 12 13 ACC [MR. AL DARBI]: [Speaking in English] Are those Yes, Your Honor. MJ [COL WATKINS]: Defense Counsel, is that your signature on Appellate Exhibit 042? 14 CDC [MR. KASSEM]: Yes, Your Honor. 15 MJ [COL WATKINS]: Mr. al Darbi, did your defense counsel 16 17 18 19 explain your post-trial and appellate rights to you? ACC [MR. AL DARBI]: [Speaking in English] Yes, Your Honor. MJ [COL WATKINS]: Did your defense counsel explain to you 20 what matters you may submit to the convening authority for his 21 consideration under R.M.C. 1105? 22 ACC [MR. AL DARBI]: 23 MJ [COL WATKINS]: [Speaking in English] Yes, they do. Did your defense counsel explain to you UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 300 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 that under R.M.C. 1105 you may submit any matters to the 2 convening authority to include, but not limited to, a personal 3 letter and documents, letters and documents from any other 4 person and any other matter you desire for the convening 5 authority to consider before taking action on your case? 6 7 8 9 10 ACC [MR. AL DARBI]: [Speaking in English] Yes, Your Honor. MJ [COL WATKINS]: Do you understand that it is your responsibility to keep in contact with your defense counsel and to let them know your desires in this regard? 11 ACC [MR. AL DARBI]: 12 MJ [COL WATKINS]: [Speaking in English] Yes, I do. Mr. al Darbi, in your pretrial 13 agreement, you have expressed an intention to waive your 14 appellate rights by submitting a signed appellate waiver 15 within ten days after you or your counsel is served with a 16 copy of the convening authority's action under R.M.C. 1107. 17 Is this still your intention? 18 19 20 ACC [MR. AL DARBI]: [Speaking in English] Yes, Your Honor. MJ [COL WATKINS]: The Military Commissions Act of 2009 at 21 10 U.S.C. 950c(b)(2) and (3) requires that a waiver shall be 22 signed by both you and your counsel and then it must be filed 23 within ten days after notice of the convening authority's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 301 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 action in your case, served on either you or your defense 2 counsel. 3 convening authority may, for good cause, extend the period for 4 such filing by not more than 30 days. 5 That statutory provision goes on to say that the As waiver of your appeal is a material term of your 6 pretrial agreement, if you fail to submit your signed 7 appellate rights waiver as required in your pretrial agreement 8 within the time period required under the statute, the 9 government and the convening authority may no longer be bound 10 by the sentence limitations or any of the other provisions 11 contained in Appellate Exhibit 010. 12 13 14 ACC [MR. AL DARBI]: Do you understand this? [Speaking in English] Yes, Your Honor. MJ [COL WATKINS]: Do you understand that it is your 15 responsibility to keep in contact with your defense counsel 16 and let them know your desires in this regard? 17 ACC [MR. AL DARBI]: 18 MJ [COL WATKINS]: [Speaking in English] Yes, I do. In other words, if you fail to submit 19 the agreed-upon and properly executed waiver within the time 20 period required, the government and the convening authority 21 will no longer be bound by the sentence limitations or any of 22 the other provisions contained in Appellate Exhibit 010. 23 you understand that? UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 302 Do UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 ACC [MR. AL DARBI]: [Speaking in English] Yes, Your Honor. 3 MJ [COL WATKINS]: 4 ACC [MR. AL DARBI]: 5 MJ [COL WATKINS]: Do you accept that? [Speaking in English] Yes, I do. It is also important that you 6 understand that it is your responsibility to keep in contact 7 with your defense counsel to let them know about your desires 8 about submitting matters to the convening authority. 9 understand that? 10 11 12 13 14 15 16 ACC [MR. AL DARBI]: [Speaking in English] Do you Yes, I do, Your Honor. MJ [COL WATKINS]: Mr. al Darbi, do you have any questions about your post-trial and appellate rights? ACC [MR. AL DARBI]: [Speaking in English] No, Your Honor. MJ [COL WATKINS]: Which defense counsel will be 17 responsible for post-trial actions in this case, and upon whom 18 is the convening authority's legal advisor's post-trial 19 recommendation to be served? 20 CDC [MR. KASSEM]: That would be me, Your Honor. 21 MJ [COL WATKINS]: Thank you, Professor Kassem. 22 Now, do counsel for either side have any questions 23 regarding Mr. al Darbi's post-trial and appellate rights or UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 303 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 their related responsibilities? 2 TC [MR. SCHNEIDER]: 3 CDC [MR. KASSEM]: None here, Your Honor. 4 MJ [COL WATKINS]: Counsel for either side have any other 5 6 7 I have no questions, Your Honor. matters to take up before this commission adjourns? TC [MR. SCHNEIDER]: Nothing from the government, Your Honor. 8 CDC [MR. KASSEM]: Nothing for the defense, Your Honor. 9 MJ [COL WATKINS]: This commission is adjourned. Counsel, 10 thank you very much. 11 [The military commission session adjourned at 1516, 13 October 12 2017.] 13 [END OF PAGE] 14 15 16 17 18 19 20 21 22 23 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 304