MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA FILED UNDER SEAL v. AE 555E (GOV) KHALID SHAIKH MOHAMMAD; WALID MUHAMMAD SALIH MUBARAK BIN ‘ATTASH; RAMZI BINALSHIBH; ALI ABDUL AZIZ ALI; MUSTAFA AHMED ADAM AL HAWSAWI Government Notice Of Declarations Requested By The Military Commission 19 March 2018 1. Timeliness This Notice is timely filed in accordance with AE 555B, Trial Conduct Order, Mr. Ali’s Motion to Dismiss For Unlawful Influence Over Convening Authority and Legal Advisor. 2. Notice In accordance with AE 555B, Trial Conduct Order, the Government hereby provides declarations from Secretary of Defense James Mattis and Acting General Counsel William Castle pertaining to the issues underlying the AE 555 motion series. 3. Attachments A. Certificate of Service, dated 19 March 2018 B. Declaration of Secretary of Defense James N. Mattis, dated 19 March 2018 C. Declaration of Acting General Counsel William S. Castle, dated 19 March 2018 Respectfully submitted, ___________//s//______________________ Clay Trivett Managing Trial Counsel Christopher Dykstra Major, USAF Assistant Trial Counsel Mark Martins Chief Prosecutor Military Commissions 2 ATTACH ENT A CERTIFICATE OF SERVICE I certify that on the 19th day of March 2018, I filed AE 555E (GOV), Government Notice of Declarations Requested by the Military Commission, with the Office of Military Commissions Trial Judiciary and I served a copy on counsel of record. ___________//s//_____________ Christopher Dykstra Major, USAF Assistant Trial Counsel ATTACH ENT MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA v. KHALID SHAIKH MOHAMMAD, DECLARATION OF WALID MUHAMMAD SALIH JAMES N. MATTIS MUBARAK BIN RAMZI BIN AL SHIBH, ALI ABDUL AZIZ ALI, 19 March 2018 MUSTAFA AHMED ADAM AL HAWSAWI 1. I am James N. Mattis, and I am currently serving as the Secretary of Defense. I am providing this declaration in response to Military Judge James L. Pohl?s Order of 27 February 2018, AE555B, that I submit a sworn written declaration to the Commission attesting to the facts and circumstances of the terminations of Mr. Harvey Rishikof as the Convening Authority for Military Commissions (Convening Authority) and Director of the Of?ce of the Convening Authority for Military Commissions (Director) and of Mr. Gary Brown as the Legal Advisor for the Of?ce of the Convening Authority for Military Commissions (Legal Advisor). This declaration is not intended to be a waiver of the attorney-client privilege, attorney work product privilege, deliberative process privilege or any applicable privilege pertaining to the employment of Mr. Rishikof and Mr. Brown. I began serving as the Secretary of Defense on 20 January 2017. On 3 April 2017, I designated Mr. Rishikof Convening Authority and Director. On 3 February 2018, I rescinded those designations. . As the Secretary of Defense, 1 have responsibilities for over 1.3 million servicemembers on active duty, over 826,000 members of the National Guard and Reserve forces, and over 742,00 civilian personnel, in support of the Department?s mission to provide the military forces needed to deter war and to protect the security of our country. . Given the circumstances of my duties as Secretary of Defense, legal issues rise to my level through the General Counsel of the Department of Defense, or, in this case, the Acting General Counsel. The Acting General Counsel advises me of legal options and makes recommendations as to possible courses of action. . I did not initiate the action to rescind Mr. Rishikof?s designations. My action was a response to legal advice and a recommendation provided by the Acting General Counsel, Mr. William S. Castle. . On 3 February 2018, I received Mr. Castle?s legal advice and recommendation that I designate a new Convening Authority and Director. In deciding to rescind Mr. Rishikof?s designations, I considered Mr. Rishikof?s management/corporate decision making, professional judgment, and temperament. I did not consider Mr. Rishikof?s performance of any judicial or quasi-judicial acts. I rescinded Mr. Rishikof?s designations in order to effectuate a more cohesive effort by the Department of Defense for the administration of Military Commissions. . Prior to making my decision to rescind Mr. Rishikof?s designations, I was informed that he had requested a Combatant Command (CCMD) provide an aerial image of the Expeditionary Legal Complex (ELC) at Naval Station Guantanamo Bay, Cuba. The ELC and surrounding areas on the Naval Station are sensitive sites. Mr. Rishikof was not satis?ed when the CCMD staff provided him the most recent image available and insisted on speaking with the Combatant Commander (CCDR). Mr. Rishikof requested that the CCDR obtain a current image by tasking a military aircraft. Apparently disgruntled with the CCDR declining his request, but without notice to or coordination with the CCMD, Mr. Rishikof then asked the United States Coast Guard (USCG) to capture an aerial image of the ELC. I was made aware that Mr. Rishikof failed to ensure the most basic coordination was conducted for his USCG aerial imagery request and that the appropriate officials at Naval Station Guantanamo Bay, including security of?cials, were not informed. 9. I was not involved in the decision to terminate Mr. Brown. I declare and swear under penalty of perjury, under the laws of the United States of America, that the foregoing is true and correct. Executed 16 March 2018. By: AMES N. MATTIS Secretary of Defense Oath Administered By: 976% Robert A. Guillen, Jr. Lieutenant Colonel, US. Army Judge Advocate ATTACH IVI ENT MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA v. KHALID SHAIKH MOHAMMAD, DECLARATION OF WALID MUHAMMAD SALIH WILLIAM S. CASTLE MUBARAK BIN RAMZI BIN AL SHIBH, ALI ABDUL AZIZ ALI, 19 March 2018 MUSTAFA AHMED ADAM AL HAWSAWI 1 . I am William S. Castle, and I am currently serving as the Acting General Counsel for the Department of Defense I am providing this declaration in response to Military Judge James L. Pohl?s Order of 2? February 2018, that I submit a sworn written declaration to the Commission attesting to the facts and circumstances of the terminations of Mr. Harvey Rishikof as the Convening Authority for Military Commissions (Convening Autho?ty) and the Director of the Of?ce of the Convening Authority for Military Commissions (Director) and of Mr. Gary Brown as the Legal Advisor for the Of?ce of the Convening Authority for Military Commissions (Legal Advisor). This declaration is not intended as a waiver ofthe attorney-client privilege, attorney work product privilege, deliberative process privilege, or any applicable privilege pertaining to the employment of Mr. Rishikof and Mr. Brown. was appointed as the Principal Deputy General Counsel for the effective 27 August 2017. During the week of 29 January 2018, I recommended that the Secretary of Defense (SecDef) rescind Mr. Rishikof?s designations as the Convening Authority and as the Director. 0n 3 February 2018, the SecDef approved my recommendation. Shortly thereafter, I rescinded the appointment of Mr. Brown as the Legal Advisor. I rescinded Mr. Brown?s appointment and recommended that the SecDef take similar action with regard to Mr. Rishikof?s designations because of the questionable decision-making, professional judgment, and temperament they displayed in administratively managing the Of?ce of Military Commissions (OMC). As further explained below, the reasons for my decision included: a. Their December 2017 submission of an uncoordinated internal memorandum that would potentially impact the organizational structure and responsibilities fer multiple components, of?ces, and services currently outside the b. Their January 2018 communication with the Commander of a Combatant Command (CCDR) and uncoordinated request for aerial imagery of a sensitive site; and c. Their subsequent January 2018 uncoordinated request that the United States Coast Guard (USCG) capture aerial imagery of that same site. In making my decisions during the week of 29 January 2018, I did not consider Mr. Rishikof or Mr. Brown?s performance of anyjudicial or quasi-judicial acts. As Acting General Counsel it is my responsibility to provide advice to the SecDef regarding all legal matters and services performed within, or involving, the One subject on which I advise the SecDef is his responsibility for the overall supervision and administration of the Military Commissions. It is my responsibility to review and approve regulations, instructions, memoranda and issuances prepared by the Convening Authority. It is also my responsibility to provide guidance pertaining to Military Commission?related of?ces, performance evaluations, and reporting relationships. 2 6. In 2011, the promulgated the Regulation for Trial by Military Commissions (RTMC) to provide all parties with a common reference tool on both personnel and processes. The RTMC is a critical resource for the administration of the Military Commissions. While the RTMC does not create any substantive rights that are enforceable by any party, it does outline communications, organization, and trial matters. It also authorizes certain duties, functions, and responsibilities. Two positions outlined in the RTMC are the Convening Authority and the Direcmr. In practice, the two positions are held by the same individual. a. The RTMC details the functions and responsibilities of the Convening Authority. Some of these ?mctions and responsibilities are judicial or quasi-judicial, including disposing of charges and convening Military Commissions. Others are administrative, including the requirement that the Convening Authority obtain the concurrence of the General Counsel before approving memoranda and that the Convening Authority will normally communicate with a CCDR through the Chairman of the Joint Chiefs of Staff. Finally, some of the functions of the Convening Authority involve resource management and allocation. b. The RTMC does not detail the functions and responsibilities of the Director, those are found in the position description. Among other duties and responsibilities, the position description states that the Director ?[d]evelops and maintains relationships, and coordinates and exchanges data and information with other Office of Secretary of Defense (OSD) of?cials, Heads of Departments of Defense Components, the intelligence community, military departments, law enforcement organizations, and other Federal of?cials having collateral or related functions.? 8. 10. Another position outlined in the RTMC is the Legal Advisor. The RTMC states that the Legal Advisor ?provides legal advice and recommendations to the Convening Authority and to the Director, Of?ce of the Convening Authority, similar in nature to that provided by a staffjudge advocate under the Uniform Code of Military Justice.? Additionally, in the April 2017 appointment memorandum for Mr. Brown, he was advised that he was to ?infer-m and coordinate with the Deputy General Counsel (Legal Counsel of the Department of Defense on matters of law or policy that may require the attention of the General Counsel, except for those matters of law and policy that impact the Of?ce of the Chief Defense Counsel.? Finally, the position description states that ?[t]he Legal Advisor also serves as the OMC Chief of Staff and speaks for the DirectOr and oversees the overall operation of the office.? In 2015, the Deputy Secretary of Defense (DepSecDef) issued a memorandum for the General Counsel, The Judge Advocates General from the Departments of the Army, Navy, and Air Force, the Staff Judge Advocate to the Commandant of the Marine Corps and for the Convening Authority. In this memorandum, the DepSecDef ?direct[ed] the of?ce of the Convening Authority to coordinate with the Of?ce of General Counsel, various components, the Judge Advocates Generals, and the military commission trial judiciary, as appropriate, concerning whether amendments to the existing regulation or additional regulations would further the interests of justice in current and future Military Commissions cases.? In early September 2017, I received a meeting request from Mr. Rishikof and Mr. Brown. At that time, I had little speci?c knowledge about the ongoing Military Commissions. Prior to holding that meeting, I spoke to attorneys within the Of?ce of the General Counsel (OGC) 11. and asked for a brie?ng on Military Commissions and what Mr. Rishikof and Mr. Brown might want to discuss. I recall that around this time I asked for and received OGC attorneys? view of Mr. Rishikof and Mr. Brown?s performance in managing the OMC. Their general view was that Mr. Rishikof and Mr. Brown alternated between not coordinating administrative aspects of their jobs and coOrdinating in a needlessly disruptive and divisive manner. This caused me to question whether Mr. Rishikof and Mr. Brown were the right individuals to manage the OMC and advise on that management. Later, I learned that Mr. Rishikof and Mr. Brown thought that the Director should control entities currently outside the OMC. I was subsequently informed by the Of?ce of the DepSecDef that on 13 December 201?, Mr. Rishikof and Mr. Brown submitted a memorandum (Management Memorandum) directly to the DepSecDef without prior notice to OGC. Mr. Rishikof clearly intended to submit the Management Memorandum in his capacity as the Director because his signature block read ?Director Of?ce of Military Commissions.? In the ?rst enclosure, Mr. Rishikof referred to Mr. Brown as the Chief of Staff. Mr. sthikof and Mr. Brown directly submitted the Management Memorandum without advance notice or coordination, which is problematic for at least two reasons. a. First, as mentioned above, Mr. Rishikof and Mr. Brown failed to properly coordinate with OGC. Appropriate coordination required presentation of the Management Memorandum, yet Mr. Rishikof and Mr. Brown never provided OGC a copy in advance of its submission to the DepSecDef. b. Second, I was later informed that, despite the Management Memorandum making proposals and recommendations that would impact organizational structures and responsibilities for multiple components, of?ces, and services, Mr. Rishikof and Mr. Brown 12. 13. 14. failed to appropriately coordinate with any of these potentially impacted entities in advance of submitting the memorandum. Mr. Rishikof and Mr. Brown?s uncoordinated memorandum submission enhanced my concern that they were not the right individuals to manage the OMC and advise on that management. Their January 2018 actions reinfOrced this view. I was made aware that during the week of 22 January 2018, Mr. Rishikof and Mr. Brown requested that a Combatant Command (CCMD) provide them an aerial image of the Expeditionary Legal Complex (ELC) at Naval Station Guantanamo Bay, Cuba. The CCMD staff provided the latest aerial imagery available, taken in 2014. Apparently unsatis?ed, Mr. Rishikof and Mr. Brown initiated a teleconference with the CCDR and staff. During the call Mr. Rishikof requested a more recent image of the ELC. The CCMD staff informed him that they had provided the most recent available image. Mr. Rishikof then requested that the CCDR employ air assets to capture a current image of the ELC. The CCDR declined this request. I viewed this communication, and its manner, as inappropriate. Mr. Rishikof was apparently not satis?ed with the decision. I was further informed that following the teleconference, and without notice to or coordination with the CCMD, Mr. Rishikof asked the USCG to capture aerial imagery of the ELC. In so doing, I was told that Mr. sthikof did not ensure that this request was coordinated in advance with the appropriate officials at Naval Station Guantanamo Bay, including security of?cials. The Military Commissions require a unity of effort that in turn depends on appropriate coordination, yet Mr. Rishikof and Mr. Brown failed to perform or to ensure others performed the most basic coordination for this aerial mission. 15. 16. I7. 18. Shortly after I learned of their communication with the CCDR and the uncoordinated aerial imagery requests, I recommended the SecDef rescind Mr. Rishikot?s designations and ended Mr. Brown?s appointment. Both Mr. Rishikof and Mr. Brown were hired as highly quali?ed experts (HQE). Under the provisions of Department of Defense Instruction 1400.25 DOD Personnel Management System: Employment ainghiy Quaiified Experts, Vol. 922, HQEs ?serve at the will of the appointing of?cial and may be terminated at any time.? I have read AB 555 Mr. a1 Baluchi?s Motion to Dismiss for Unlawful In?uence over Convening Authority and Legal Advisor, in which the Defense alleges apparent unlawful in?uence and speculates that the termination actions were retaliation for Mr. Rishikof and Mr. Brown ?requesting surveillance-free attorney-client meeting spaces, the perceived slow pace of litigation, or the Convening Authority?s handling of the contempt proceeding against Brigadier General Baker.? See Motion to Dismiss at pp. 16-17. I did not consider any of those matters in deciding to rescind Mr. Brown?s appointment, nor did I consider them in recommending that the SecDef take similar action with regard to Mr. Rishikof?s designations. In deciding to rescind Mr. Brown?s appointment as the Legal Advisor, 1 considered his decision-making, professional judgment, and temperament in how he performed administrative management functions. I did not consider Mr. Brown?s performance of any judicial or quasi-judicial acts. Similarly, in recommending to the SecDef that he rescind Mr. Rishikof?s designations as Director and as Convening Authority, 1 considered Mr. Rishikof?s decision-making, professional judgment, and temperament in how he performed administrative management functions. 1 did not consider Mr. Rishikol?s performance of any judicial or quasi-judicial acts. I declare and swear under penaltyr ol'perj ury. under the laws ol? the United States of America, that the foregoing is true and correct. Executed 16 March 2013. By: /2 WILLIAM S. CASTLE Acting General Counsel Oath Administered By: <2 67% Robert A. Guillen, Jr. Lieutenant Colonel. U.S. Army Judge Advocate MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA AE 555F v. RULING KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH MUBARAK BIN ‘ATTASH, RAMZI BIN AL SHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AHMED ADAM AL HAWSAWI Government Notice of Declarations Requested by the Military Commission 20 March 2018 1. On 19 March 2018, the Government filed a notice 1 of submission of declarations by Secretary of Defense James N. Mattis and Acting General Counsel William S. Castle. The notice bore a header entitled “Filed Under Seal.” Any proposed sealing of a document filed with the Commission must be with the direction or concurrence of the Military Judge. 2 Accordingly, the Commission will treat the matter as a motion by the Government to seal the notice and the attached declarations. 2. Rule for Military Commissions 806(a) and Regulation for Trial by Military Commission (2011) 19-4 provide that Commission proceedings be held publicly and Commission filings be publicly released absent authority to the contrary. In this case, the Government notice offered no rationale justifying the filing of the notice or the attached declarations under seal. 3. The Government motion to seal AE 555E (GOV) and the attached declarations is DENIED. 4. Order. The words “Filed Under Seal” will be stricken from the header to AE 555E (GOV). So ORDERED this 20th day of March, 2018. //s// JAMES L. POHL COL, JA, USA Military Judge 1 AE 555E (GOV), Government Notice of Declarations Requested by the Military Commission, filed 19 March 2018. 2 Military Commissions Trial Judiciary Rule of Court (1 September 2016) 3.5.n. 1 Appellate Exhibit 555F Page 1 of 1 MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA AE 555G v. KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH MUBARAK BIN 'ATTASH, RAMZI BINALSHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AHMED ADAM AL HAWSAWI NOTICE OF RECEIPT Declaration of Harvey Rishikof and Gary D. Brown 20 March 2018 On 19 March 2018, the Commission received, via email, the attached joint declaration. The Commission hereby notifies the parties of the existence of the declaration and its contents. This Notice, a photocopy of the transmittal email, and the declaration will be marked as an appellate exhibit and included within the record of trial. So ORDERED this 20th day of March, 2018. Attachment: A. Mr. Brown Email/Declaration //s// JAMES L. POHL COL, JA, USA Military Judge Appellate Exhibit 555G Page 1 of 7 Attachment A Appellate Exhibit 555G Page 2 of 7 From: Gary Brown Sent: Monday, March 19, 2018 3:00 PM To: Toole, Mark CIV OSD OMC CA (US) Taylor, Fred OSD OMC TJ (US) Harvey Subject: Source] Rishikof Brown Joint Declaration Mr Toole and Mr Taylor, Attached is the joint declaration from Mr Rishikof and me. It is our intent that this document be provided to the court, as requested by Judge Pohl. In order to shield individuals who might have con?icts, we are providing the statement to you two, leaving it to your discretion to determine how best to ?le the declaration. We do not request that it be ?led under seal. We would like to be provided a copy of the declarations of Secretary Mattis and Mr Castle as soon as possible. Very respectfully! 1 Appellate Exhibit 555G Page 3 of 7 Declaration of Harvey Rishikof and Gary D. Brown (19 March 2018) Declaration We fully respect the authority of the Commissions and appreciate the opportunity afforded us to make this declaration.1 It has been an honor and privilege to serve in the Office of the Convening Authority (OCA), to work with and alongside such dedicated and talented members of the OCA, and to have tried to bring a fair and just resolution of these cases for the surviving family members. 1. The first we learned of our dismissals on the morning of February 5, 2018 was when Mr. William Castle, DOD's acting general counsel, handed us separation memos from the doorway of the Office of General Counsel (OGC) conference room. After the statement was read to us, we were immediately read out of all the relevant security programs, asked to turn over our CAC cards and government phones, and escorted out of the Pentagon. We were immediately placed on administrative leave and were to be formally separated on February 7, 2018. 2. There was never any attempt made at any time to approach us about any issue concerning our duty performance during our tenure. We never believed, or had reason to believe, there were any issues with OGC or anyone else above us in the chain of command. We had no indication that any personnel action was under consideration. As officials in the department have stated, there was no investigation of either of us, ongoing or contemplated. Our understanding was that we were performing our duties appropriately and that was based on our weekly calls with our point of contact in OGC (designated by the then acting principal deputy general counsel Mr. Chuck Allen and then by acting general counsel Mr. Castle). We never received any negative feedback on our monthly reports to the deputy secretary, which were copied to the acting general counsel and his staff. Because OGC and the deputy secretary had opportunities to provide us feedback on a weekly or more frequent basis, we understood our actions and recommendations to the department were on a successful track. 3. The decision to remove the Convening Authority occurred not later than 3 February, the date Mr. Coyne (the acting Convening Authority) agreed to his appointment. Prior to that date, and while Mr. Rishikof was serving as Convening Authority, based on these dates, we now assume there must have been discussions between Mr. Coyne and others in government about Mr. Coyne assuming the position. We were not privy to any of these discussions, nor were we privy to the content of any assessments of our performance. 4. At no time did we meet with or have any direct communications with the Secretary of Defense during our tenure. We communicated with his staff and made requests to meet with Secretary Mattis, but the requests were never acted upon. 1 We are submitting this declaration through the Office of the Convening Authority (OCA) because given the circumstances of this motion and the fact that we were not privy to all the possible communications among the Office of the Prosecutor, the Office of the General Counsel and Office of the Secretary leading up to our separation from the OCA, there is a potential conflict of interest among the parties. 1 Appellate Exhibit 555G Page 4 of 7 Declaration of Harvey Rishikof and Gary D. Brown (19 March 2018) 5. We met with deputy secretary's predecessor monthly, but after our first meeting with the new deputy secretary last summer, his staff indicated that our meetings with him would be quarterly rather than monthly. We were later asked to have all our communications directed to the deputy secretary run through the (acting) general counsel. As we went forward, quarterly meetings did not occur, and as a result we met with the deputy secretary only twice. Those two meetings were our introductory meeting and one subsequent meeting in October. We sent written status reports monthly to OGC, the deputy secretary, and the office of the secretary of defense. 6. As noted, we had no conversations with anyone about our duty performance and were not provided any sort of rationale for our dismissal. We issued a number of opinions and orders under the authority of the Convening Authority, some of which were undoubtedly controversial and not popular with all parties to the Commissions or with people who work in roles supporting Commissions. That is the nature of legal decisions and leadership positions: one is sometimes not popular. There have been no accusations that the decisions were beyond the scope of the authority of the Office of the Convening Authority, or that the decisions did not follow the law and facts, nor has there been any assertion that judgments were not supported by clearly stated rationale. 7. Some of the decisions and courses of action undertaken during our tenures as Convening Authority and Legal Advisor concerned conspiracy charges, capital charges, guilty pleas in the 9/11 and USS Cole cases, conditions of detention relating to military commissions, recommendations for the reorganization of DOD's prosecutorial and security process to provide for a unity of command to avoid potential ethical conflicts, review of contempt charges, and adequate funding of the defense. It is unknown to us if the decisions and recommendations in these cases played a role in our removal. 8. Pursuant to the authority of Convening Authority we explored all avenues to resolve the cases in a fair and just manner. This involved meetings with the defense counsel, senior officials in the government, and appropriate members of Congress. All of these responsibilities and authorities are detailed in Chapter 2, Convening Authority in Regulation for Trial by Military Commission. See paragraph 2-3, RESPONSIBILITIES AND FUNCTIONS. As we performed our duties in these areas we had periodic meetings with officials. Although these activities were detailed in our monthly reports, as well as in our other written and oral communications with OGC, based on some subsequent questions and comments it appears the staff was not conveying all our actions to the most senior officials in the most fulsome and timely manner. 9. Based on these facts, there may well have been concerns about future judicial decisions on plea agreements, the organization of prosecutorial functions, and the referral of future cases, but these decisions of law and regulation fall squarely under the authority of the Convening Authority. A number of judicial decisions concerning prosecutions and referrals were pending. When making these decisions some subordinate parties in the process expressed concerns about the future advice and decisions of the Legal Advisor and the Convening Authority; and about whom should be the final authority on when and whether cases should 2 Appellate Exhibit 555G Page 5 of 7 Declaration of Harvey Rishikof and Gary D. Brown (19 March 2018) be referred, as well as about how and whether referred cases should be prosecuted. These attempts to influence the process were not consonant with our understanding of the role of a just and fair Convening Authority making independent judicial decisions in the cases, informed by independent legal advice. 10. As our declaration reflects, we know little about the reasons that led to our dismissal; what we do not know is much greater. For example, we do not understand why a new Convening Authority was appointed before Mr. Rishikof was informed of his removal, because having two convening authorities appointed simultaneously could have created a number of legal and policy issues. We also do not understand why the Convening Authority and the Legal Advisor were removed simultaneously. Further, it is unclear why the Convening Authority's supervisor, the Secretary, or designee the deputy secretary, never met with the Convening Authority to discuss any performance issues, and it is unclear why the Legal Advisor's reporting official, the Convening Authority, was never consulted about the Legal Advisor's duty performance or the decision to remove him. There were no concerns or problems ever expressed by our superiors, and our only work concerned tasks assigned by law and regulation to the Convening Authority. Therefore, we can only conclude our dismissal must have been based on something related to the performance of Convening Authority duties. We are concerned that there may be a potential conflict of interest reflected in the dismissal actions themselves, and in the circumstances surrounding the execution of the actions. 11. We have tried to be as complete as possible without being overly lengthy in this declaration, but we would like to reserve the right to respond to the statements of Secretary of Defense Mattis and Mr. Castle. We will not see these statements until after our filing, and we expect to learn of any asserted rationale for our dismissals for the first time in those official filings to the court rather than through the normal administrative process for personnel actions. Depending on the nature of the statements, if they are sealed, we may request the Commissions to "unseal" them in order for there to be transparency on this matter. 12. What this turn of events has demonstrated to us more than anything else is how important it is to protect the independence and judgment of the Legal Advisor and the Convening Authority. It is critical to have a fair, independent Convening Authority who is not fearful of retribution for exercising appropriate independent judgment supported by independent and unbiased legal advice. Our goal has always been to find a fair and just resolution to Commissions cases so the victim family members may finally have closure. That motivation is what drove both of us to leave our previous positions to take on these difficult jobs. It would undermine the ability of officials in these positions in the future to be expected to give fair, impartial, independent, and sound advice while understanding that any decision regarding a case could result in immediate termination of employment, suspension of credentials, and being escorted from the facility without advance discussion or notice. It is even more disconcerting when there appears to be the possibility that such draconian action could be driven by the wishes of subordinate offices or outside interveners with little responsibility for the actual operation of military commissions. 3 Appellate Exhibit 555G Page 6 of 7 Declaration of Harvey Rishikof and Gary D. Brown (19 March 2018) Under penalty of perjury, we affirm that the forgoing declaration is true and correct to the best of our knowledge and belief. Respectfully, //s// //s// Harvey Rishikof Gary D. Brown 4 Appellate Exhibit 555G Page 7 of 7